Material Contracts. (a) Section 4.10(a) of the Company Disclosure Schedule sets forth a true, complete and correct list of each of the following Contracts to which the Company is a party or by which the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”): (i) all Contracts that contain restrictions with respect to payment of dividends or any other distribution in respect of the Membership Units or other Equity of the Company; (ii) any Contract that by its terms requires the payment by or on behalf of the Company in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum; (iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000; (iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service; (v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company; (vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance; (vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000; (viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person; (ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement; (x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date; (xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business; (xii) all Affiliate Contracts; (xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee; (xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company; (xv) all collective bargaining agreements entered into by the Company; (xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business; (xvii) any Contracts with any Governmental Authority to which the Company is a party; (xviii) any Contracts that limit, in any material 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; (xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and (xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and (xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a). (b) The Company is in material compliance with the terms and provisions of each Material Contract. The Company, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule. (c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. 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. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contract. (d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 3 contracts
Sources: Membership Interest Purchase Agreement (Planet 13 Holdings Inc.), Membership Interest Purchase Agreement (Planet 13 Holdings Inc.), Membership Interest Purchase Agreement (Planet 13 Holdings Inc.)
Material Contracts. (a) Section 4.10(a) Except as set forth in Schedule 3.10 and after giving effect to the Restructuring Transactions, none of the Company Disclosure Schedule sets forth ELN Companies is a true, complete and correct list of each party to or otherwise bound by any of the following Contracts relating to which the Company is a party or by which the Company is bound and which have not been entirely fulfilled or performed Business (such Contracts, collectively, the “Material Contracts”):), other than the CCC Agreement, which shall be of no further effect with regards to the Purchased ELN Companies as of the Closing:
(i) all Contracts that contain restrictions with respect to payment any lease or sublease of dividends or any other distribution in respect of the Membership Units or other Equity of the Companyreal property;
(ii) any Contract that by its terms requires the payment by lease or on behalf sublease of the Company in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides personal property providing for the Company to receive annual payments in excess of $100,000 per annum;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(iii) any Contract for the purchase of goods, services, materials, supplies or equipment providing for either (A) annual payments in excess of $100,000 or (B) aggregate payments in excess of $250,000;
(iv) any distribution, sales, advertising or agency Contract providing for either (A) annual payments to or by an ELN Company in excess of $100,000 or (B) aggregate payments to or by an ELN Company in excess of $250,000;
(v) any Contract granting any Person “most favoured nation” status or “exclusivity” or similar rights;
(vi) any Contract with any Governmental Authority providing for either (A) annual payments in excess of $100,000 or (B) aggregate payments in excess of $250,000;
(vii) any Contract for any partnership, joint venture, strategic alliance or other similar arrangement;
(viii) any bonds Contract providing for the settlement of any material claim against any ELN Company or Contracts of Guarantee in which relating to the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another PersonBusiness;
(ix) all Contracts involving any joint ventureContract relating to the acquisition or divestiture of any business or assets (whether by merger, partnershipsale of equity, strategic alliancesale of assets or otherwise) (1) that have obligations remaining to be performed or liabilities continuing after the date of this Agreement other than in the Ordinary Course of Business, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement(2) that took place during the one year period prior to the Closing Date;
(x) all Contracts involving any resolution Contract granting any Person a right of first refusal, right of first offer or settlement similar right to purchase or acquire any material assets, properties or business of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Datean ELN Company;
(xi) any Contract limiting requiring an ELN Company to make any advance, loan, extension of credit or restraining the Company capital contribution to, or other investment in, any successor thereto from engaging or competing in any manner, in any location or in any businessPerson;
(xii) any Contract (A) evidencing or guaranteeing any Indebtedness (including all Affiliate Contractsloan agreements, notes, bonds, debentures, indentures or guarantees), or (B) creating or granting a Lien on the Shares or any assets or properties of an ELN Company, other than Permitted Liens;
(xiii) any Company IP Agreements as well as Contract between an ELN Company, on the one hand, and the Seller, any Contract under which Affiliate of the Company is a party providing for Seller or any director, manager or officer of an ELN Company, on the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licenseehand;
(xiv) any Contract concerning license, sublicense or royalty agreement relating to any Intellectual Property, other than standard end-user license agreements relating to any “shrink wrap,” “click wrap” or “off the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Companyshelf” software that is generally commercially available;
(xv) all collective bargaining agreements entered into by any Contract that limits or purports to limit the Company;ability of an ELN Company (or would limit the ability of the Purchaser after the Closing) (A) to engage in any line of business, (B) to compete with any Person, (C) to operate in any geographic area, (D) to Solicit or accept business from the customers of any Person or (E) to Solicit for employment or hire any Person; or
(xvi) any other Contract providing of a type that is not covered by the Company indemnify any Person in an amount other clauses of this Section 3.10(a) that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xviiA) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material 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;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without terminable on not more than ninety (90) 60 days’ notice; and
(xx) notice and without the payment of any Contract to purchasepenalty by, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that material consequence to, applicable ELN Company or (B) is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)Business.
(b) The Company is in material compliance with the terms and provisions of each Material Contract. The Company, and Seller has made available to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A Purchaser a true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description made in writing, along with accurate written descriptions in all material respects of each verbal Material Contract is set forth made orally, including all amendments thereto, other than the Material Contracts listed in Section 4.10(a) Schedule 3.10 which are subject to confidentiality agreements but for which the Seller has provided written summaries that accurately describe all material terms of the Company Disclosure Schedulesuch Material Contracts.
(c) Each Material Contract is (i) is a legal, valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description obligation of the material termsapplicable ELN Company and, as applicable)to the Knowledge of the Seller, between the Company, on one hand, and the other parties thereto, on (ii) is in full force and effect in accordance with its terms and (iii) upon consummation of the Contemplated Transactions, will continue in full force and effect without penalty or other adverse consequence, subject to obtaining the consents and approvals, giving the notices or taking the other handactions referred to in Schedule 3.4(b). None of the ELN Companies, with respect the Seller or, to the subject matter thereofKnowledge of the Seller, any other party to any Material Contract is in breach of or default under, in any material respect, or has provided or received any written notice alleging any breach of or default under, in any material respect, any Material Contract. No event or circumstance has occurred that, that (with or without notice or lapse of time or both, ) would constitute an event a material breach of or material default under any Material Contract in any material respect by the applicable ELN Company or result in a termination thereof or would cause or permit to the acceleration or other changes Knowledge of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respectsSeller, and the Company has not received any notice of termination or intent to terminate by any other party to any Material Contractthereto.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 3 contracts
Sources: Purchase Agreement (Quebecor Media Inc), Purchase Agreement (Postmedia Network Canada Corp.), Purchase Agreement (Postmedia Network Canada Corp.)
Material Contracts. (a) Section 4.10(a) 3.12 of the Company Seller Disclosure Schedule Letter sets forth forth, as of the Contract Date, a true, complete and correct list of each of the following Contracts to which MONY or, to the Company extent applicable to the Business, MLOA is a party or by which any of such entity’s assets (other than the Company is Excluded Assets) are bound (collectively, and which have not been entirely fulfilled or performed (such Contracts, collectivelytogether with the Ceded Reinsurance Contracts and all Contracts required to be listed on Section 3.21(h) of the Seller Disclosure Letter, the “Material Contracts”):
(a) each Contract the performance of which is expected to involve amounts payable by MONY, Purchaser or any of their Affiliates subsequent to the Closing Date in excess of $500,000 in the aggregate or $100,000 in any twelve-month period or which are not terminable on 90 calendar days’ notice or less without penalty or premium;
(b) Contracts that restrict the ability of MONY or MLOA or any of MONY’s Affiliates (determined after giving effect to the Closing) to freely conduct the Business or which contain any covenant not to compete in any line of business, in any geographic area or with any Person or obligating MONY, or following the Closing, Purchaser or any of its Affiliates, to conduct any business on an exclusive basis with any Person;
(c) Contracts under which MONY has loaned or borrowed money or guaranteed, directly or indirectly, borrowings of money by any Person (excluding investment portfolio transactions in the ordinary course of business consistent with the Investment Guidelines);
(d) (i) all Contracts that contain restrictions with respect to payment of dividends between MONY, on the one hand, and Parent, Seller or any of their Affiliates (other distribution in respect of than MONY), on the Membership Units or other Equity of the Company;
hand, (ii) any Contract that guarantee by its terms requires the payment by MONY in favor of or on behalf in respect of the Company in excess any obligations of $100,000 per annum Parent, Seller or the delivery by the Company any of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum;
their Affiliates (other than MONY), (iii) all Contracts involving a loan any guarantee by Parent, Seller or any of its Affiliates (other than accounts receivable owing from trade debtors MONY) in the Ordinary Course favor of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making respect of any such loan, advance or investment in excess obligations of $25,000;
MONY and (iv) any Contract that (iother than an Insurance Contract) requires between MONY, on the Company to purchase one hand, and any product director or service in excess officer of $100,000 from MONY (or any Affiliate of such a third party director or officer (ii) requires that other than MONY)), on the Company deal exclusively with a third party in connection with the sale or purchase of any product or serviceother hand;
(ve) Contracts pursuant to which any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the CompanyLien, other than a Permitted EncumbranceLien, is placed or imposed on any material asset of MONY;
(viif) all Contracts material to the Business under which (i) MONY licenses to any Person any material Owned Intellectual Property and (other than the Companyii) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000any Person licenses to MONY any material Intellectual Property;
(viiig) any bonds partnership, joint venture or Contracts limited liability company agreements (excluding investment portfolio transactions in the ordinary course of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Personbusiness);
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xih) any investment advisory Contract limiting or restraining the Company or any successor thereto from engaging other Contracts relating to investment management, investment advisory or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority subadvisory services to which the Company MONY is a party;
(xviiii) any Contracts Contract under which MONY, on behalf of one or more of its Separate Accounts, invests in, or provides services to, a registered mutual fund or other collective investment fund, including any Contract under which MONY receives any payment from such funds or any of its respective Affiliates or shareholders;
(j) any Contract for the provision of administrative services with respect to any Insurance Contract;
(k) any Contract, entered into on or after July 8, 2004, that limit, in relates to the acquisition or disposition by MONY of any material respect, the ability of the Company to compete in any line of business or with operations, capital stock or assets of any Person or in any geographic area or during real estate as to which there are any period material ongoing obligations of timeMONY;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xxl) any Contract relating to purchase, lease or otherwise acquire any material derivative transaction (other than in accordance with the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option termInvestment Guidelines); and
(xxim) any other Contract that is material to the operation Business and is not terminable upon 90 calendar days’ written notice without penalty or premium. Each of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a).
(b) The Company Material Contracts is in material compliance with the terms full force and provisions effect and constitutes a legal, valid and binding obligation of each Material Contract. The CompanyMONY and, and to the Knowledge of the CompanySeller, the each other party thereto, MLOA or their applicable Affiliates (as applicable) enforceable against MONY, MLOA or such Affiliates and, to any Material Contract is not in breach or default under any the Knowledge of its terms. The Company has not received notice of any breachSeller, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company other party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect subject to the subject matter thereofEnforceability Exceptions. No event Neither MONY nor any of its Affiliates has received written notice of cancellation of any Material Contract. There exists no breach 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. The Company has no reason to believe any party with respect to any Material Contract will not fulfill its obligations thereunder in all material respectson the part of MONY, and the Company has not received any notice of termination MLOA or intent to terminate by any party to any Material Contract.
(d) The Company has no Liability for the deferred purchase price of propertysuch Affiliates or, goods or services, whether connected or not to the acquisition Knowledge of Seller, any business (earn-out other party thereto, except for such breaches or other similar type of payments) defaults that would not, individually or noncompetition agreementin the aggregate, reasonably be expected to have a Business Material Adverse Effect.
Appears in 3 contracts
Sources: Master Agreement (AXA Equitable Holdings, Inc.), Master Agreement (Protective Life Insurance Co), Master Agreement (Protective Life Corp)
Material Contracts. All agreements, contracts, leases, licenses, instruments, commitments (a) Section 4.10(a) of the Company Disclosure Schedule sets forth a trueoral or written), complete indebtedness, liabilities and correct list of each of the following Contracts other obligations to which the a Group Company is a party or by which the Company it is bound that (a) are material to the conduct and which have not been entirely fulfilled operations of its business and properties, or performed (b) obligate such ContractsGroup Company to share, collectively, license or develop any product or technology outside the ordinary course of business are hereinafter referred to as “Material Contracts”):
. For purposes of clause (a) of this Section, “material” means any agreement, contract, indebtedness, liability, arrangement or other obligation (i) all Contracts that contain restrictions with respect to payment having an aggregate value, cost, liability or amount in excess of dividends or any other distribution in respect of the Membership Units or other Equity of the Company;
RMB5,000,000, (ii) any Contract that by its terms requires with the payment by or on behalf term thereof extending for more than one (1) year beyond the date of the Company in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum;
this Agreement, (iii) all Contracts containing exclusivity, non-competition, or similar clauses that impair, restrict or impose conditions on any of the Group Companies’ right to offer or sell products or services in specified areas, during specified periods, or otherwise, (iv) not in the ordinary course of business, (v) transferring or licensing any Intellectual Property to or from any of the Group Companies (other than licenses granted under the medical devices sales agreements executed by the Group Company in the ordinary course of business), (vi) involving any provision providing for exclusivity, “change in control”, “most favored nations”, rights of first refusal or first negotiation or similar rights, or granting a power of attorney, agency or similar authority, (vii) involving the ownership or lease of, title to, use of, or any leasehold or other interest in, any real or personal property with an annual rental exceeding US$200,000 (except for movable property leases in the ordinary course of business and involving payments of less than US$100,000), (viii) involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course ordinary course of Businessbusiness) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business)to, or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the not a Group Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving providing for the incurrence of indebtedness of any joint ventureGroup Company with a financial institute, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement provision providing for the guarantee of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
indebtedness, (xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any mannerbeing between, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material 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;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a).
(b) The Company is in material compliance with the terms and provisions of each Material Contract. The Company, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties theretoany Group Company and, on the other hand, (x) the Founder or his/her Affiliates or (y) any Related Party of any Group Company, or (xii) being with a Governmental Authority, or sole-source supplier of any material product or service. Each Material Contract is a valid and binding agreement of the parties thereto, the performance of which does not and will not violate any applicable Laws in any material respects, and is in full force and effect against the parties thereto. Each Group Company has duly performed all of its obligations under each Contract in material respects to the extent that such obligations to perform have accrued, and no breach or default, to the Knowledge of any of the Warrantors, alleged breach or alleged default, or event which would constitute a breach or default thereunder by such Group Company or any other party or obligor with respect thereto, has occurred. No Group Company has given notice that it intends to terminate a Material Contract or, to the subject matter thereof. No event Knowledge of any of the Warrantors, that any other party thereto has breached, violated or circumstance defaulted under any Material Contract, and no Group Company has occurred thatreceived any notice that it has breached, with notice violated or lapse of time or both, would constitute an event of default defaulted under any Material Contract or result in a termination thereof or would cause or permit or, to the acceleration or other changes Knowledge of any right or obligation or of the loss of Warrantors, that any benefit thereunder. The Company has no reason to believe any other party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent thereto intends to terminate by any party to any such Material Contract.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 2 contracts
Sources: Share Purchase Agreement (Global Mofy Metaverse LTD), Share Purchase Agreement (Global Mofy Metaverse LTD)
Material Contracts. (a) This Agreement, the Company Benefit Plans, the Contracts filed with the SEC as exhibits to the Filed SEC Documents, and those Contracts listed in Section 4.10(a) 4.19 of the Company Disclosure Schedule sets forth a trueLetter (such contracts, complete and correct list collectively, the “Company Material Contracts”) constitute all of each of the following Contracts to which Contracts, whether written or oral (without duplication), that the Company or any of its Subsidiaries is a party to or bound by which as of the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):
date hereof: (i) all Contracts that contain restrictions with respect to payment any “material contract” (as such term is defined in Item 601(b)(10) of dividends or any other distribution in respect Regulation S-K of the Membership Units or other Equity SEC) of the Company;
; (ii) any employment, severance or consulting Contract that by its terms requires the payment by or on behalf offer letter with an employee or former employee, officer or director of the Company or any Subsidiary of the Company that will require the payment of amounts by the Company or any Subsidiary of the Company, as applicable, after the date hereof in excess of $100,000 200,000 per annum or the delivery annum, other than those employment agreements, offer letters and/or employment contracts that are terminable at-will by the Company or a Subsidiary, as applicable, on no more than one month’s notice or the minimum required notice period under applicable law; (iii) any collective bargaining Contract, or any other agreement or work rule or practice with any labor union, labor organization or works council; (iv) any Contract for capital expenditures or the acquisition or construction of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive fixed assets which requires aggregate future payments in excess of $100,000 per annum;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
5,000,000; (v) any Contract that relates containing covenants of the Company or any Subsidiary of the Company to an acquisition indemnify or divestiture hold harmless another Person or group of material assets that contains covenantsPersons, indemnities unless such indemnification or other contractual obligations that could impose hold harmless obligation to such Person, or group of Persons, as the case may be, would not reasonably be expected to exceed a Liability that is material to the Company;
maximum of $2,000,000; (vi) any Contract under which the Company has any outstanding Indebtedness that limits or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect purports to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability of the Company or any of its Subsidiaries or Affiliates (including, following the Merger, Parent or any of its Subsidiaries or Affiliates, including the Surviving Corporation) to compete engage in any line of business or compete with any Person or obtain products, commodities or services in any geographic area area; (vii) any license, royalty Contract or during other Contract with respect to Intellectual Property which, pursuant to the terms thereof, requires payments by the Company or any period Subsidiary of time;
the Company in excess of $500,000 per annum; (xixviii) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) Contract pursuant to which the Company is or any Subsidiary of the Company has entered into a party and which are not cancellable without material penalty partnership or without more than ninety joint venture with any other Person; (90) days’ notice; and
(xxix) any indenture, mortgage, loan, guarantee or credit Contract to purchaseunder which the Company or any Subsidiary of the Company has outstanding indebtedness or any outstanding note, lease bond, indenture or other evidence of indebtedness for borrowed money or otherwise acquire the right to ownor any guaranteed indebtedness for money borrowed by others, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Companyin each case, for or guaranteeing an amount in excess of $100,0005,000,000, individually other than any such indebtedness between the Company (in the case of a lease, per annumwhether as creditor or debtor) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including and any option term); and
(xxi) any other Contract that is material to the operation of the business wholly owned Subsidiary of the Company or between any wholly owned Subsidiaries of the Company; (x) any Contract under which the Company or any Subsidiary of the Company is (A) a lessee of real property, (B) a lessee of, or holds or uses, any machinery, equipment, vehicle or other tangible personal property owned by a third Person, (C) a lessor of real property, or (D) a lessor of any tangible personal property owned by the Company or any Subsidiary of the Company, in each case which requires annual payments in excess of $500,000; (xi) any Contract other than a Company Benefit Plan which requires payments by the Company or any Subsidiary of the Company in excess of $500,000 per annum containing “change of control” or similar provisions; (xii) all sole source or material limited source supply agreements; (xiii) any Contract (other than Contracts of the type described in subclauses (i) through (xii) above) that involves aggregate payments by or to the Company or any Subsidiary of the Company in excess of $500,000 per annum; and not otherwise disclosed pursuant (xiii) any Contract the termination or breach of which, or the failure to obtain consent in connection with the transactions contemplated hereby in respect of which, would have or reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. The Company has delivered or made available to Parent prior to the date of this Agreement complete and correct copies of each Company Material Contract listed in Section 4.10(a)4.19 of the Company Disclosure Letter.
(b) The (i) Each Company is in material compliance with the terms and provisions of each Material Contract. The Company, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company and any of its Subsidiaries to the extent such Subsidiary is a party thereto in accordance with its respective terms thereto, as applicable, and (ii) in full force and effect. Each , except where the failure to be valid, binding and in full force and effect, either individually or in the aggregate, would not have or reasonably be expected to have a Company Material Contract Adverse Effect, (ii) the Company and each of its Subsidiaries has in all material respects performed all obligations required to be performed by it to date under each Company Material Contract, except where such noncompliance, either individually or descriptionin the aggregate, would not have or reasonably be expected to have a Company Material Adverse Effect, and (iii) sets forth neither the entire agreement and understanding (or complete description Company nor any of its Subsidiaries has received written notice of the material terms, as applicable), between the Company, on one handexistence of any, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No knowledge of the Company there exits no, event or circumstance has occurred thatcondition which constitutes, with or, after notice or lapse of time or both, would constitute an event will constitute, a material default on the part of default the Company or any of its Subsidiaries 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. The such Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contract, except where such default, either individually or in the aggregate, would not have or reasonably be expected to have a Company Material Adverse Effect.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 2 contracts
Sources: Merger Agreement (Thermo Fisher Scientific Inc.), Agreement and Plan of Merger (Dionex Corp /De)
Material Contracts. (ai) Section 4.10(a6.1(A)(t)(i) of the Company Allergan Disclosure Schedule sets forth a true, complete and correct list as of the date of this Agreement of each of the following Contracts (other than any Allergan Benefit Plan) to which the Company Allergan or any of its Subsidiaries is a party or by which the Company it is bound (each such Contract required to be so listed, and each of the following types of Contracts (other than any Allergan Benefit Plan) described below to which have not been entirely fulfilled Allergan or performed (such Contractsany of its Subsidiaries becomes a party or by which it otherwise becomes bound after the date of this Agreement, collectively, the an “Allergan Material ContractsContract”):
(A) each (i) all acquisition or divestiture Contract (including any Contracts that contain restrictions with respect pursuant to payment of dividends or which any other distribution in respect member of the Membership Units Allergan Group has transferred or other Equity agreed to transfer ownership of the Company;
any Intellectual Property) and (ii) license (including any Contract that by its terms in-license or out-license and any sublicense), collaboration agreement or similar or equivalent Contract, that, in the case of each of clauses (i) and (ii), (x) has a maximum potential value (or which otherwise requires the payment by receipt or on behalf making of the Company payments) in excess of $100,000 per annum 100 million (including pursuant to any “earn-out,” contingent value rights, milestone payments, license fees, royalty payments, development costs or other contingent payment or value obligations), (y) involves the delivery by issuance of any Equity Securities of Allergan or any of its Subsidiaries to a Third Party following the Company date of goods this Agreement or services (z) grants to any Person (other than any member of the Allergan Group) any right of first refusal, right of first negotiation, right of first offer, option to purchase, option to license, or any other similar rights with respect to any Allergan Product or any material Intellectual Property of Allergan;
(B) any Contract with any Governmental Entity that is material to Allergan and its Subsidiaries, taken as a fair market whole, and involving or that would reasonably be expected to involve payments to or from any Governmental Entity in an amount having a maximum potential value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum100 million;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(ivC) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution limits or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect purports to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability freedom of the Company Allergan or any of its Subsidiaries to engage or compete in any line of business or with any Person or in any geographic area or during that would so limit or purport to limit, in any period material respect, the freedom of timeAbbVie or any of its Affiliates to take such actions after the Effective Time, (y) contains exclusivity or “most favored nation” obligations or restrictions that restrict or purport to restrict Allergan or any of its Subsidiaries in any material respect or that would so limit or purport to limit AbbVie or any of its Affiliates after the Effective Time, (z) contains any other provisions materially restricting or purporting to materially restrict the ability of Allergan or any of its Subsidiaries to sell, market, distribute, promote, manufacture, develop, commercialize, test or research any Allergan Products through third parties or that would so limit or purport to limit AbbVie or any of its Affiliates after the Effective Time;
(xixD) all any Contract relating to third party indebtedness for borrowed money in excess of $100 million (iwhether incurred, assumed, guaranteed or secured by any asset) employment agreements of Allergan or any of its Subsidiaries;
(excludingE) any Contract restricting Allergan or any of its Subsidiaries from (x) the payment of dividends (y) the making of distributions to shareholders or (z) the ability to repurchase or redeem Equity Securities;
(F) any joint venture, for certaintyprofit-sharing, partnership, collaboration, co-promotion, commercialization, research, development or other similar agreement, which is material to the Allergan Group, taken as a whole;
(G) any employees who are employed at willContracts or other transactions with any (A) and executive officer or director of Allergan, or (iiB) Contracts with independent contractors affiliate (as such term is defined in Rule 12b-2 promulgated under the Exchange Act) or consultants “associates” (or members of any of their “immediate family”) (as such terms are respectively defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) of any such executive officer, director or beneficial owner;
(H) any Contract involving the settlement of any Action or threatened Action (or series of related Actions) (A) which (x) will involve payments by Allergan or any of its Subsidiaries after the date hereof, or involved such payments, in excess of $100 million or (y) will impose, or imposed, materially burdensome monitoring or reporting obligations by Allergan or any of its Subsidiaries outside the ordinary course of business or material restrictions on Allergan or any Subsidiary of Allergan (or, following the Completion, on AbbVie or any Subsidiary of AbbVie) or (B) which impose material restrictions on the use of any material Intellectual Property other than, in the case of this clause (B), the granting of non-exclusive licenses or sublicenses or the granting of exclusive licenses in connection with the settlement of ANDA-related litigation in the ordinary course of business;
(I) any stockholders, investors rights, registration rights or similar arrangements) agreements or arrangements with respect to which the Company is a party and which are not cancellable without material penalty Equity Securities of Allergan or without more than ninety (90) days’ noticeany of its Subsidiaries; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxiJ) any other Contract that is material required to be filed by Allergan pursuant to Item 601(b)(10) of Regulation S-K.
(ii) All of the Allergan Material Contracts are, subject to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a).
Equitable Exceptions, (b) The Company is in material compliance with the terms and provisions of each Material Contract. The Company, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (iA) valid and binding on obligations of Allergan or a Subsidiary of Allergan (as the Company party thereto in accordance with its respective terms case may be) and, to the knowledge of Allergan, each of the other parties thereto, and (iiB) in full force and effect. Each Material Contract effect and enforceable in accordance with their respective terms against Allergan or its Subsidiaries (or descriptionas the case may be) sets forth and, to the entire agreement and understanding (or complete description knowledge of the material termsAllergan, as applicable), between the Company, on one hand, and each of the other parties thereto, on in each case of (A) and (B), except for such Allergan Material Contracts that are terminated after the date of this Agreement in accordance with their respective terms, other than as a result of a default or breach by Allergan or any of its Subsidiaries of any of the provisions thereof, and except where the failure to be valid and binding obligations and in full force and effect and enforceable has not had and would not reasonably be expected to have, individually or in the aggregate, an Allergan Material Adverse Effect. To the knowledge of Allergan, as of the date hereof, no Person is seeking to terminate or challenging the validity or enforceability of any Allergan Material Contract, except such terminations or challenges which have not had and would not reasonably be expected to have, individually or in the aggregate, an Allergan Material Adverse Effect. Neither Allergan nor any of its Subsidiaries, nor, as of the date hereof, to the knowledge of Allergan, any of the other handparties thereto has violated any provision of, or committed or failed to perform any act which (with respect to the subject matter thereof. No event or circumstance has occurred thatwithout notice, with notice or lapse of time or both, ) would constitute an event of a default under any provision of, and as of the date hereof neither Allergan nor any of its Subsidiaries has received written notice that it has violated or defaulted under, any Allergan Material Contract, except for those violations and defaults (or potential defaults) which have not had and would not reasonably be expected to have, individually or in the aggregate, an Allergan Material Adverse Effect. Allergan has made available to AbbVie true and complete copies of each Allergan Material Contract or result as in a termination thereof or would cause or permit effect as of the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contractdate hereof.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 2 contracts
Sources: Transaction Agreement (Allergan PLC), Transaction Agreement (AbbVie Inc.)
Material Contracts. (ai) Section 4.10(aExcept as set forth in Schedule 5.1(j)(i) of the Company Disclosure Schedule sets forth a trueLetter, complete and correct list of each as of the following Contracts date of this Agreement, neither the Company nor any of its Subsidiaries is a party to or bound by:
(A) any lease of real or personal property providing for annual rentals of $15,000,000 or more;
(B) any agreement or agreements involving more than $5,000,000 individually or $10,000,000 in the aggregate to acquire (I) a License, or an interest in an entity holding a License, that upon acquisition by the Company would become a Communications License or (II) any interest in an entity that holds a License that upon acquisition of such entity by the Company would become a Foreign License;
(C) any partnership, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture material to the Company or any of its Subsidiaries or in which the Company or any of its Subsidiaries owns any interest valued at more than $10,000,000 without regard to percentage voting or economic interest (unless pursuant to such agreement or arrangement the Company and its Subsidiaries do not have a future funding obligation reasonably likely to require funding of more than $15,000,000 in the aggregate);
(D) any Contract (other than among direct or indirect wholly-owned Subsidiaries of the Company) relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset) in excess of $50,000,000;
(E) 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;
(F) any non-competition Contract or other Contract that (I) purports to limit in any material respect either the type of business in which the Company or its Subsidiaries (or, after the Effective Time, Parent or its Affiliates) may engage or the manner or locations in which any of them may so engage in any business or (II) could require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Affiliates;
(G) any Contract (other than (I) a Contract with respect to compensation or similar arrangements not involving a director of the Company or one of the Section 16 Officers and (II) any Contract entered into in the ordinary course of business) between the Company or any of its Subsidiaries and any director or officer of the Company or any Person beneficially owning, as of the date hereof, five percent or more of the outstanding Shares;
(H) any Contract that contains a put, call or similar right pursuant to which the Company is or any of its Subsidiaries could be required to purchase or sell, as applicable, any equity interests of any Person or assets that have a fair market value or purchase price of more than $25,000,000; and
(I) any other Contract or group of Contracts with a single counterparty that, if terminated or subject to a default by any party thereto, would, individually or by which in the Company is bound aggregate, reasonably be expected to result in a Material Adverse Effect (the Contracts described in clauses (A) – (I), together with all exhibits and which have not been entirely fulfilled or performed (schedules to such Contracts, collectively, being the “Material Contracts”):
(i) all Contracts that contain restrictions with respect to payment of dividends or any other distribution in respect of the Membership Units or other Equity of the Company;).
(ii) any A true and complete copy of each Material Contract that by its terms requires the payment by has previously been delivered or on behalf made available to Parent (subject to applicable confidentiality restrictions) and each such Contract is a valid and binding agreement of the Company in excess or one of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business)its Subsidiaries, or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material 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;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a).
(b) The Company is in material compliance with the terms and provisions of each Material Contract. The Companymay be, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth , and neither the entire agreement and understanding (or complete description Company nor any of its Subsidiaries nor, to the knowledge of the material terms, as applicable), between officers of the Company, on one hand, and any other party thereto is in material default or breach under the other parties thereto, on the other hand, with respect to the subject matter thereof. 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 terms of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any such Material Contract.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 2 contracts
Sources: Merger Agreement (SBC Communications Inc), Merger Agreement (At&t Corp)
Material Contracts. (a) Section 4.10(a) 3.17 of the Company Seller Disclosure Schedule sets forth as of the date of this Agreement a true, true and complete and correct list of each of the following Contracts (other than purchase orders and invoices, Benefit Plans and Compensation Agreements) to which any of the Company Transferred Entities is a party or by which the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):
(i) all Contracts that contain restrictions with respect to payment involving payments by the Transferred Entities of dividends more than $250,000 per year or any other distribution in respect $2,000,000 over the term of the Membership Units Contract, or other Equity having a term of the Companymore than four (4) years and not terminable within 180 days;
(ii) any Contract that by its terms requires Contracts requiring the payment by Transferred Entities to provide more than $250,000 of services per year or on behalf $2,000,000 of services over the term of the Company Contract, or that are anticipated to generate, individually, revenue for any Transferred Entity of more than $1,000,000 in excess of $100,000 per annum 2022 or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum2023;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees any Contract containing any future capital expenditure obligations of the Company extended in the Ordinary Course of Business), Transferred Entities (or investment in, any Person or any agreement otherwise relating to the making of any such loan, advance or investment Business) in excess of $25,000250,000;
(iv) Contracts evidencing Indebtedness for borrowed money of any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively Transferred Entity with a third party in connection with the sale or purchase of any product or serviceprincipal amount greater than $1,000,000;
(v) Contracts requiring any Contract that relates Transferred Entity to an acquisition pay, perform, discharge or divestiture otherwise guarantee any Indebtedness of material assets that contains covenants, indemnities or any other contractual obligations that could impose Person (other than a Liability that is material to the CompanyTransferred Entity) with a principal amount greater than $1,000,000;
(vi) any Contract under which the Company has joint venture, partnership or other similar agreement involving co-investment between any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than Transferred Entity and a Permitted Encumbrancethird party;
(vii) all Contracts under which for the sale, transfer or other disposition of any Person (assets of any Transferred Entity involving payments of more than $1,000,000, other than sales of inventory in the Company) has directly or indirectly guaranteed Indebtedness ordinary course of the Company in excess of $50,000business consistent with past practice;
(viii) any bonds Contract relating to the acquisition or Contracts disposition of Guarantee in any business (whether by merger, sale of stock, sale of assets or otherwise) under which the Company acts as Transferred Entities have a surety or guarantor continuing obligation with respect to any an “earn out,” contingent purchase price, or similar contingent payment obligation (fixed that is reasonably expected to be $250,000 or contingent) of another Person;greater in amount; and
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount containing covenants that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, restrict or limit in any material respect, respect the ability of the Company Transferred Entities after the Closing to engage in the Business or compete in any line of business or with respect to the Business with any Person or in any geographic area or during any period of time;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)area.
(b) The Company is in material compliance with the terms Sellers have made available to Purchaser true, correct and provisions complete copies of each Material ContractContract and all amendments related thereto. The Company, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) a legal, valid and binding on obligation of the Company party thereto in accordance with its respective terms applicable Transferred Entities, and, to the knowledge of Sellers, of each counterparty thereto, and (ii) is in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties theretono Transferred Entity, on the other handor, with respect to the subject matter thereof. No knowledge of Sellers, other party thereto is in breach of, or in default under, any such Material Contract, and no event or circumstance has occurred that, that with notice or lapse of time or both, both would constitute an event of such a breach or 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. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contract.
(d) The Company has no Liability for of the deferred purchase price of propertyTransferred Entities, goods or servicesor, whether connected or not to the acquisition knowledge of Sellers, any business (earn-out other party thereto, except for such failures to be valid, binding or other similar type of payments) in full force and effect and such breaches, defaults or noncompetition agreementevents that have not had and would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Ambipar Emergency Response), Purchase and Sale Agreement (Ambipar Emergency Response)
Material Contracts. (a) Section 4.10(a4.14(a) of the Company Purchaser Disclosure Schedule sets forth a true, complete and correct list of each of the following Contracts to which which, as of the Company date of this Agreement, Purchaser or any of its Subsidiaries is a party or by which the Company is bound and which have not been entirely fulfilled or performed (such Contractseach, collectively, the a “Purchaser Material ContractsContract”):
(i) all Contracts that contain restrictions with respect to payment any “material contract” (as such term is defined in Item 601(b)(10) of dividends or any other distribution in respect Regulation S-K of the Membership Units or other Equity SEC as determined as of the Companydate of this Agreement);
(ii) any each Contract that by its terms requires the payment by or on behalf of the Company in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum;
(iiiA) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance not to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person otherwise restricting or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability of the Company to Purchaser or any of its Subsidiaries to) compete in any line of business or with geographic area or (B) to restrict the ability of Purchaser or any Person or of its Subsidiaries to conduct business in any geographic area or during any period of timearea;
(xixiii) each Contract (other than any Purchaser Benefit Plan) providing for or resulting in payments by Purchaser or any of its Subsidiaries that exceeded $250,000 in the calendar year ended December 31, 2023, or that is reasonably likely to require, during the remaining term of such Contract, annual payments by Purchaser or any of its Subsidiaries that exceed $250,000;
(iv) all Contracts granting to any Person an option or a first refusal, first offer, or similar preferential right to purchase or acquire any Purchaser Assets;
(iv) employment agreements all material Contracts (excludingA) for the granting or receiving of a license, sublicense or franchise (in each case, including any such Contracts relating to any Intellectual Property) providing for certaintyor resulting in payment over $250,000 per year or (B) under which any Person is obligated to pay or has the right to receive a royalty, any employees who are employed at willlicense fee, franchise fee or similar payment in which it is reasonably expected to pay or receive a royalty, license fee, franchise fee or similar payment over $250,000, in each case of clause (A) and (iiB), other than agreements with employees, non-exclusive licenses granted to Purchaser’s or its Subsidiaries’ customers, and non-exclusive licenses to commercially available, off-the-shelf Software that have been granted on standardized, generally available terms;
(vi) Contracts all partnerships, joint ventures, or other similar agreements or arrangements;
(vii) any agreement with independent contractors any director, officer, or consultants stockholder of Purchaser or any Subsidiary thereof that is required to be described under Item 404 of Regulation S-K of the SEC in the Purchaser SEC Reports;
(viii) any agreement relating to indebtedness for borrowed money or similar arrangementsthe deferred purchase price of property (in either case, whether incurred, assumed, guaranteed, or secured by any asset), except any such agreement with an aggregate outstanding principal amount not exceeding $1,000,000;
(ix) any agreement for the disposition or acquisition by Purchaser or any of its Subsidiaries with material obligations of Purchaser or any of its Subsidiaries (other than confidentiality obligations) remaining to which be performed, or material Liabilities of Purchaser or any of its Subsidiaries continuing, after the Company is a party and which date of this Agreement, of any material business or any material amount of assets other than in the ordinary course of business;
(x) any agreement restricting or limiting the payment of dividends or the making of distributions to stockholders, including intercompany dividends or distributions other than such restrictions or limitations that are not cancellable without material penalty or without more than ninety (90) days’ noticerequired by applicable Law; and
(xxxi) all material agreements with any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)Governmental Authority.
(b) The Company is in material compliance with the terms and provisions of each Material Contract. The Company, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a4.14(b) of the Company Purchaser Disclosure ScheduleSchedule sets forth all Contracts granting to any Person an option or a first refusal, first offer, or similar preferential right to purchase or acquire any material assets of Purchaser, a true and complete copy of which have been made available to the Company.
(c) A true and complete copy of each Purchaser Material Contract (including any related amendments) entered into before the date of this Agreement has been filed as an exhibit (by reference or otherwise) to the Purchaser Annual Report on Form 20-F for the fiscal year ended December 31, 2023, filed with the SEC on April 30, 2024, or disclosed by Purchaser in a subsequent Purchaser SEC Report or made available to the Company before the date of this Agreement. Each Purchaser Material Contract is a valid and binding agreement of Purchaser or its applicable Subsidiary, except where the failure to be valid and binding would not, individually or in the aggregate, reasonably be expected to have a Purchaser Material Adverse Effect. Except as would not be material to Purchaser, (i) valid and binding on neither Purchaser or such Subsidiary nor, to the Company party thereto Knowledge of Purchaser, any other party, is in accordance with its respective terms and breach of or default under any such Purchaser Material Contract, (ii) in full force and effect. Each as of the date of this Agreement, there are no material disputes concerning any such Purchaser Material Contract and (or descriptioniii) sets forth the entire agreement and understanding (or complete description as of the material termsdate of this Agreement, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default no party under any Purchaser 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. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any given written notice of termination or its intent to terminate by any party or otherwise seek a material amendment to any such Purchaser Material Contract.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Fusion Fuel Green PLC), Stock Purchase Agreement (Ilustrato Pictures International Inc.)
Material Contracts. (a) Subsections (i) through (x) of Section 4.10(a3.16(a) of the Company Disclosure Schedule sets forth a true, complete and correct list of each of the following Contracts types of Contracts, arrangements or understandings to which the any Group Company is a party other than any such Contract that is a Company Employee Plan or by which Company Employee Agreement (such Contracts as are required to be set forth in Section 3.16(a) of the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, Disclosure Schedule being the “Material Contracts”):), and none of the Company or any of its Subsidiaries is a party to or bound by any Material Contracts not listed in Section 3.16(a) of the Company Disclosure Schedule:
(i) all Contracts each Contract that contain restrictions with respect would be required to payment of dividends or any other distribution in respect be filed by the Company pursuant to Item 4 of the Membership Units or other Equity Instructions to Exhibits of Form 20-F under the CompanyExchange Act;
(ii) any each Contract that by its terms requires the payment by or on behalf is expected, as of the Company in excess of $100,000 per annum or the delivery date hereof, by the Company to involve consideration of goods or services with a fair market value more than US$500,000, in excess the aggregate, over the remaining term of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annumsuch Contract;
(iii) all Contracts involving a relating to any credit, loan (or facility arrangement, guarantee or other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business)security arrangement, or investment inIndebtedness (whether or not incurred, assumed, guaranteed or secured by any Person or any agreement relating to the making asset of any such loan, advance or investment Group Company) in excess of $25,000US$500,000, other than any such Contracts solely between any Group Companies;
(iv) all joint venture contracts, strategic cooperation or partnership arrangements, or other agreements involving a sharing of profits, losses, costs or liabilities by any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or serviceGroup Company;
(v) all Contracts relating to the purchase or sale of any Contract that relates to an acquisition shares or divestiture of material assets that contains covenantssecurities of, indemnities or other contractual obligations that could impose a Liability that is material to the Companyequity interests in, any Group Company other than Company Equity Awards;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly that limit, or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect purport to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability of the any Group Company to compete in any line of business or with any Person person or entity or in any geographic area or during any period of time;
(xixvii) all Contracts involving any directors, executive officers or shareholders of the Company holding more than 5% of the share capital of the Company, required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(iviii) employment agreements (excluding, all Contracts providing for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (change of control payment or similar arrangements) payments to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ noticeany Third Party in excess of US$500,000; and
(xxix) all other Contracts, whether or not made in the ordinary course of business, which are material to any Contract to purchaseGroup Company or the conduct of its business, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate absence of the Company, for an amount in excess of $100,000which would, individually (or in the case of aggregate, have a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)Material Adverse Effect.
(b) The Except as would not have a Company Material Adverse Effect, (i) each Material Contract is a legal, valid and binding agreement, subject to the Bankruptcy and Equity Exception, and no Group Company is in material compliance with the terms and provisions of each breach or violation of, or default under, any Material Contract. The Company, and (ii) as of the date hereof, no Group Company has received any notice of cancellation of any Material Contract from the other party; (iii) to the Knowledge of the Company, as of the date hereof, no other party to is in material breach or violation of, or default under, any Material Contract is not in breach or Contract; and (iv) as of the date hereof, no Group Company has received any written claim of material default under any such Material Contract and, to the Knowledge of its terms. The Company has not received notice the Company, no fact or event exists that could give rise to any claim of any breach, material default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. 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. The Company has no reason filed with the SEC or furnished or made available to believe Parent true and complete copies of all Material Contracts, including any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contractamendments thereto.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 2 contracts
Sources: Merger Agreement (Wang Benson Haibing), Merger Agreement (Taomee Holdings LTD)
Material Contracts. (a) Section 4.10(a3.11(a) of the Company Disclosure Schedule sets forth Letter contains a true, true and complete and correct list of each listing of the following Contracts contracts and other agreements to which Pecten as of the Company date of this Agreement is a party or by to which the Company is bound Assets are subject (each such contract or agreement, along with all amendments and which have not been entirely fulfilled or performed (such Contractssupplements thereto, collectively, the being referred to herein as a “Material ContractsContract”):
(i) contracts, agreements and instruments representing Indebtedness for Borrowed Money and all Contracts that contain restrictions with respect to payment of dividends or any other distribution in respect of the Membership Units or other Equity of the Companyguarantees thereof;
(ii) any Contract that by its terms requires contracts containing covenants limiting the payment by or on behalf freedom of the Company in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company Pecten to receive payments in excess of $100,000 per annum;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability of the Company to compete engage in any line of business or compete with any Person or in operate at any geographic area or during any period of timelocation;
(xixiii) all (i) employment agreements (excludingprice swaps, for certainty▇▇▇▇▇▇, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (futures or similar arrangementsinstruments;
(iv) contracts to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchasePecten, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a).
(b) The Company is in material compliance with the terms and provisions of each Material Contract. The Company, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties theretoan Affiliate of Pecten, on the other hand, with respect is a party or is otherwise bound;
(v) contracts containing any preferential rights to the subject matter thereof. No event purchase 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. The Company has no reason to believe any party similar rights relating to any Material Contract will not fulfill its obligations thereunder in all material respectsAssets;
(vi) joint venture or partnership agreements, and the Company has not received including any notice of termination agreement or intent commitment to terminate by make any party loan or capital contribution to any Material Contract.joint venture or partnership;
(dvii) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not contracts relating to the acquisition or disposition by Pecten of any business (earn-out whether by acquisition or disposition of equity interests or assets) pursuant to which Pecten has or will have any remaining material obligation or liability or benefit;
(viii) contracts or agreements which, individually, require or entitle Pecten to make or receive payments of at least Five Hundred Thousand Dollars ($500,000) annually, provided that the calculation of the aggregate payments for any such agreement or contract shall not include payments attributable to any renewal periods or extensions for which Pecten may exercise a renewal or extension option in its sole discretion;
(ix) contracts relating to the storage, transportation, treating, sale, or purchase of hydrocarbons, or the provision of services related thereto; and
(x) licenses relating to Intellectual Property (whether as licensee or licensor) other similar type than licenses with respect to software used or accessed by Pecten under a “shrink wrap,” “click wrap,” or “off the shelf” software license that is generally commercially available on standard terms.
(b) Subject to regulatory requirements of payments) or noncompetition agreement.which SHLX has been informed, SPLC has made available to SHLX a correct and complete copy of each Material Contract listed on Section 3.11(a)
Appears in 2 contracts
Sources: Contribution Agreement (Shell Midstream Partners, L.P.), Contribution Agreement
Material Contracts. (a) Except as disclosed in any Company Report filed and publicly available or as set forth on Section 4.10(a) 3.16 of the Company Disclosure Schedule sets forth a trueLetter, complete and correct list of each or to the extent any such Contracts constitute Employee Plans, as of the following Contracts to which filing date of the Chapter 11 Plan no Endo Company is party to or bound by (each such Contract, a party or by which the Company is bound “Material Contract” and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):
(i) all Contracts that contain restrictions with respect to payment any Affiliate or current or former officer or director of dividends any Endo Company (other than employment-related Contracts or any other distribution in respect of the Membership Units or other Equity of the CompanyEmployee Plans);
(ii) Contracts relating to any Contract that material business, equity or asset acquisition by its terms requires the payment by any Endo Company or on behalf any disposition of any significant portion of the business, equity or assets of any Endo Company (in excess each case other than acquisitions or dispositions involving aggregate payments of less than $100,000 per annum 1,000,000 or the delivery by the Company acquisition, sale or disposition of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended Inventory in the Ordinary Course of Business), in each case, since January 1, 2023;
(iii) any Contract that (A) relates to Indebtedness under clauses (a) or investment in(b) of the definition thereof of any Endo Company; (B) relates to the mortgaging or pledging of, or otherwise placing an Encumbrance (other than a Permitted Encumbrance) on, any Person of the assets or any agreement relating to the making properties of any such loanEndo Company; or (C) is in the nature of a capital or direct financing lease that is required by GAAP to be treated as a long-term liability involving payments above $1,000,000 annually, advance or investment in excess each case other than any Contract under which the Liabilities of $25,000the applicable Endo Company will be fully discharged under the Bankruptcy Code;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or serviceCollective Bargaining Agreement;
(v) any Contract that relates pursuant to which an acquisition Endo Company (A) is granted or divestiture of material assets that contains covenants, indemnities obtains or other contractual obligations that could impose a Liability agrees to grant or obtain any right to use or otherwise exploit any Intellectual Property that is material to the Company;
Business, (viB) any Contract under which the Company has any outstanding Indebtedness is restricted in its right to use or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to register any Intellectual Property including, without limitation, included in the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company Transferred Assets that is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the CompanyBusiness, or (C) permits or agrees to permit any other than Person to use, enforce or register any material Intellectual Property included in the Transferred Assets, including any such agreement license agreements, coexistence agreements and covenants not to sue; in each case excluding any Contracts (i) containing non-exclusive licenses of Intellectual Property relating to the development, manufacture, marketing, advertising, promotion, distribution, sale or other commercialization of Products entered into in the Ordinary Course of Business, in each case that are not individually material to the Business or (ii) entered into for commercially available “off-the-shelf” Software licensed to a Seller on a non-exclusive basis;
(xviivi) any Contracts Contract or consent decree with or from any Governmental Authority to which the Company is a partyAuthority;
(xviiivii) any Contracts Contract that limitimposes on any Endo Company or any of their respective Affiliates (including Buyers and their Affiliates following the Closing) (other than those contained in confidentiality agreements or similar Contracts) (A) any restriction on soliciting customers or employees or any non-competition restrictions, (B) any restriction on entering into any line of business, or from freely providing services or supplying products to any customer or potential customer, or in any part of the world, (C) a “most favored nation” pricing provision or exclusive marketing or distribution rights relating to any products or territory or minimum purchase obligations or exclusive purchase obligations with respect to any goods or services binding such Endo Company or its Affiliates in favor of the counterparty, or (D) other than restrictions that will cease to be effective on and after the Closing, any restriction on either the payment of dividends or distributions or the incurrence of Encumbrances on the property or assets of any Endo Company;
(viii) any Contract with the customers and suppliers required to be listed on Section 3.18(a) or Section 3.18(b) of the Disclosure Letter;
(ix) any Contract with a sole source supplier, pursuant to which such supplier provides to an Endo Company equipment, materials or services that are necessary for the sale, performance, manufacturing or support of the Business;
(x) any irrevocable power of attorney given by any Endo Company to any Person for any purpose whatsoever with respect to any Endo Company; and
(xi) any agreement relating to any strategic alliance, joint development, joint marketing, partnership, joint venture or similar arrangement (including any such Contract involving a sharing of revenues, profits, losses, costs or liabilities).
(b) Except as set forth on Section 3.16(b) of the Disclosure Letter, Sellers have made available to Buyers a true, correct and complete copy of each Material Contract, as amended to date. As of the filing date of the Chapter 11 Plan, each Material Contract is, and as of the Closing Date and subject to approval of the Bankruptcy Court, assuming payment of the Cure Claims, each Transferred Contract will be, valid and binding on the Endo Companies and, to the Knowledge of the Sellers, the counterparties thereto, and in full force and effect, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general principles of equity (regardless of whether considered in a proceeding in equity or at law). As of the filing date of the Chapter 11 Plan, to the Knowledge of the Sellers, no party has repudiated in writing any material provision of a Material Contract or given written notice that a Material Contract has terminated or will be terminating and, excluding the effect of the Bankruptcy Cases, no Endo Company is in breach of, or default under, in any material respect, the ability a Material Contract to which it is a party. As 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;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate filing date of the CompanyChapter 11 Plan, except for an amount in excess of $100,000violations, individually (in the case of breaches or defaults which have been cured and for which no Endo Company has any Liability, or which will be cured as a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term result of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation payment of the business of the applicable Cure Claims, no Endo Company and not otherwise disclosed pursuant to this Section 4.10(a).
(b) The Company is in material compliance with the terms and provisions of each Material Contract. The Companyand, and to the Knowledge of the CompanySellers, the no other party to any Material Contract is not Contract, has breached or defaulted in breach any material respect under, or default under any of its terms. The Company has not received notice of any breachimproperly terminated, default revoked or notice of termination by any Person under accelerated, any Material Contract. A true, complete and correct copy there exists no condition or event which, after notice, lapse of time or both, would constitute any such breach, default, termination, revocation or acceleration, in each written case as would not, individually or in the aggregate, reasonably be expected to have a Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure ScheduleAdverse Effect.
(c) Each Material Contract is Section 3.16(c) of the Disclosure Letter lists each material insurance policy maintained by the Endo Companies as of the filing date of the Chapter 11 Plan, and the deductibles and coverage limits for each such policy. To the Knowledge of Sellers, (ia) valid the Endo Companies own or hold policies of insurance, or are self-insured, of the types and binding on in amounts providing reasonably adequate coverage against all risks customarily insured against by companies in similar lines of business as the Company party thereto in accordance with its respective terms Endo Companies or as may otherwise be required by applicable Law and (iib) all such insurance policies are in full force and effecteffect except for any expiration thereof in accordance with the terms thereof occurring after the date of this Agreement. Each Material Contract (The Endo Companies have not received written notice of cancelation or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, modification with respect to the subject matter thereof. No such insurance policies other than in connection with ordinary renewals, and there is no existing default or event or circumstance has occurred thatwhich, with the giving of notice or lapse of time or both, would constitute an event a default by any insured thereunder. All premiums in respect of default each insurance policy maintained by the Endo Companies have been paid, or will be paid, when due. There is no claim pending under any Material Contract such insurance policies as to which coverage has been questioned, denied or result in a termination thereof or would cause or permit disputed by the acceleration or other changes underwriters of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contractsuch policies.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Endo, Inc.), Purchase and Sale Agreement (Endo International PLC)
Material Contracts. (a) Except for this Agreement, the Contracts filed as exhibits to the Company SEC Reports, and the Contracts listed in Subsections (i) through (xx) of Section 4.10(a3.16(a) of the Company Disclosure Schedule sets forth a trueSchedule, complete and correct list of each as of the following Contracts to which date hereof, none of the Company or any of its Subsidiaries is a party to or bound by which the Company is bound and which have not been entirely fulfilled or performed (such following Contracts, collectively, the “Material Contracts”)::
(i) all Contracts any Contract that contain restrictions with respect would be required to payment of dividends or any other distribution in respect be filed by the Company pursuant to Item 4 of the Membership Units or other Equity Instructions to Exhibits of Form 20-F under the CompanyExchange Act;
(ii) any Contract that by its terms requires relating to the payment by formation, creation, operation, management or on behalf control of any Subsidiary of the Company in excess of $100,000 per annum or the delivery by the Company of goods any other partnership, joint venture, strategic collaboration, global affiliation or services with a fair market value in excess of $100,000 per annum business cooperation, limited liability company or provides for the Company to receive payments in excess of $100,000 per annumsimilar arrangement;
(iii) all Contracts any Contract involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course ordinary course of Businessbusiness) or advance to (other than travel and entertainment advances allowances to the employees of the Company and any of its Subsidiaries extended in the Ordinary Course ordinary course of Businessbusiness), or investment in, any Person person or any agreement Contract relating to the making of any such loan, advance or investment in excess of $25,000for more than US$5,000,000;
(iv) any Contract that (i) requires involving Indebtedness of the Company to purchase or any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase its Subsidiaries of any product or servicemore than US$5,000,000;
(v) any Contract that relates to an acquisition (including so called take-or-pay or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vikeep-well agreements) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person person (other than the CompanyCompany or any of its Subsidiaries) has directly or indirectly guaranteed Indebtedness of the Company in excess or any of $50,000its Subsidiaries of more than US$5,000,000;
(vi) 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 US$5,000,000, other than a Permitted Encumbrances;
(vii) any management service, consulting, financial advisory or any other similar type Contract and all Contracts with investment or commercial banks;
(viii) any bonds Contract for the acquisition, disposition, sale, transfer or Contracts lease (including leases in connection with financing transactions) of Guarantee in which properties or assets of the Company acts or any of its Subsidiaries that have a fair market value or purchase price of more than US$5,000,000 (by merger, purchase or sale of assets or stock or otherwise) entered into since December 31, 2014 or, if prior to that date, have representations, warranties or indemnities that remain in effect or as a surety or guarantor with respect to any obligation (fixed or contingent) of another Personwhich claims are pending;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has litigation, arbitration, claim or other dispute with amount in controversy greater than US$5,000,000;
(x) any obligation Contract involving a standstill or Liability that will continue after the Closing Datesimilar arrangement;
(xi) any non-competition Contract limiting or restraining other Contract that purports to limit, curtail or restrict in any material respect the ability of the Company or any successor thereto from engaging or competing of its Subsidiaries to compete in any mannergeographic area, in any location industry or in any line of business;
(xii) all Affiliate Contractsany Contract for the employment of any senior executive officer;
(xiii) any Company IP Agreements as well as any Contract under that contains a put, call or similar right pursuant to which the Company is or any of its Subsidiaries could be required to purchase or sell, as applicable, any equity interests of any person or assets that have a party providing for the license fair market value or purchase price of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other more than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licenseeUS$5,000,000;
(xiv) any Contract concerning (other than Contracts granting Company Options, or Company RSs) giving the acquisitionother party the right to terminate such Contract as a result of this Agreement or the consummation of the Transactions, dispositionincluding the Merger, occupancy, management or operation where (A) such Contract requires any payment in excess of any Real Property owned, leased or used US$5,000,000 to be made by the CompanyCompany or any of its Subsidiaries in any calendar year or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract is in excess of US$5,000,000 in any calendar year;
(xv) all collective bargaining agreements entered into any Contract that contains restrictions with respect to (A) payment of dividends or any distribution with respect to equity interests of the Company or any of its Subsidiaries, (B) pledging of share capital of the Company or any of its Subsidiaries or (C) issuance of guarantee by the CompanyCompany or any of its Subsidiaries;
(xvi) any Contract providing that for (A) a license, covenant not to s▇▇ or other right granted by any Third Party under any Intellectual Property to the Company indemnify or any Person of its Subsidiaries, (B) a license, covenant not to s▇▇ or other right granted by the Company or any of its Subsidiaries to any Third Party under any Intellectual Property, (C) an indemnity of any person by the Company or any of its Subsidiaries against any charge of infringement, misappropriation, unauthorized use or violation of any Intellectual Property right, or (D) any royalty, fee or other amount payable by the Company or any of its Subsidiaries to any person by reason of the ownership, use, sale or disposition of Intellectual Property, in an amount that would be material to the Companyeach case of clauses (A) through (D), other than any agreements for off-the-shelf Software and such agreement Contracts that are not material to business of the Group Companies, taken as a whole, and in each case of clauses (C) and (D), other than Contracts entered into by the Company and its Subsidiaries in the Ordinary Course ordinary course of Businessbusiness;
(xvii) any Contracts with any Governmental Authority to which the Company is a partyContract granting rights in respect of exclusivity, “most favored nation” or similar rights;
(xviii) any Contracts Contract between or among the Company or any of its Subsidiaries, on the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, that limit, involves payments of more than US$5,000,000 in any material 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 timeone year;
(xix) all each Control Agreement and any other any Contract which (iA) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which provides the Company is with effective control over any of its Subsidiaries in respect of which it does not, directly or indirectly, own a party and which are not cancellable without material penalty majority of the equity interests (each, an “Operating Subsidiary”), (B) provides the Company or without more than ninety any of its Subsidiaries the right or option to purchase the equity interests in any Operating Subsidiary, or (90C) days’ notice; andtransfers economic benefits from any Operating Subsidiary to any other Subsidiary of the Company;
(xx) any Contract to purchase, lease between the Company or otherwise acquire the right to own, use any of its Subsidiaries and any director or lease any property or assets, including such Contracts entered into by an Affiliate executive officer of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) Company or $150,000 in the aggregate (in the case of a lease, for the entire term any person beneficially owning five percent or more of the lease, not outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act (including any option termthose that would be required to be disclosed if the Form 20-F were filed as of the date hereof); andor
(xxi) any other Contract which, if terminated, could reasonably be expected to result in a Company Material Adverse Effect. Each such Contract described in clauses (i) to (xxi) and each such Contract that is material would be a Material Contract if it had not been filed as an exhibit to the operation of the business of the Company and not otherwise disclosed pursuant SEC Reports is referred to this Section 4.10(a)herein as a “Material Contract.”
(b) The Except as would not have, individually or in the aggregate, a Company is in material compliance with the terms and provisions of Material Adverse Effect: (i) each Material Contract. The Contract is a legal, valid and binding obligation of a Group Company, as applicable, in full force and effect and enforceable against such Group Company in accordance with its terms, subject to the Knowledge Bankruptcy and Equity Exception; (ii) to the knowledge of the Company, the other party to any each Material Contract is not a legal, valid and binding obligation of the counterparty thereto, in full force and effect and enforceable against such counterparty in accordance with its terms, subject to the Bankruptcy and Equity Exception; (iii) no Group Company and, to the knowledge of the Company, no counterparty, is or is alleged to be in breach or violation of, or default under under, any Material Contract; (iv) to the knowledge of the Company, no person intends to terminate any Material Contract; and (v) neither the execution of this Agreement nor the consummation of any Transaction shall constitute a default under, give rise to cancellation rights under, or otherwise adversely affect any of its terms. The Company has not received notice the rights of any breach, default or notice of termination by any Person Group Company under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. 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. The Company has no reason furnished or made available to believe Parent true and complete copies of all Material Contracts, including any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contractamendments thereto.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 2 contracts
Sources: Merger Agreement (Zhang Ray Ruiping), Agreement and Plan of Merger (eHi Car Services LTD)
Material Contracts. (a) Neither the Company nor any of its Subsidiaries is a party to any Contract required to have been filed with the SEC by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act that has not been so filed.
(b) Section 4.10(a2.7(b) of the Company Disclosure Schedule sets forth a truelists, complete and correct list of each as of the date of this Agreement, the following Contracts types of contracts and agreements to which the Company or any of its Subsidiaries is a party or by which (such contracts and agreements as are required to be set forth on Section 2.7(b) of the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, Disclosure Schedule being the “Material Contracts”):
(i) all Contracts that contain restrictions each contract and agreement (A) with respect consideration paid or payable to payment of dividends the Company or any other distribution of its Subsidiaries of more than $100,000, in respect the aggregate, and (B) with suppliers to the Company or any of its Subsidiaries for expenditures paid or payable by the Membership Units Company or other Equity any of its Subsidiaries of more than $100,000, in the Companyaggregate, in each case over the twelve (12)-month period ending December 31, 2022;
(ii) any each Advisory Contract that by its terms requires the payment by or on behalf of the Company in excess of $100,000 per annum other investment advisory, asset management or the delivery similar agreements entered into by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides and its Subsidiaries, providing for the Company to receive payments revenues in excess of $100,000 per annum;
(iii) all Contracts involving broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising contracts and agreements to which the Company or any of its Subsidiaries is a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances party that are material to the employees business of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000Company;
(iv) all Service Agreements and management contracts, including any Contract that (i) requires contracts involving the payment of royalties or other amounts calculated based upon the revenues or income of the Company or any of its Subsidiaries or income or revenues related to purchase any product or service in excess Product of $100,000 from a third party or (ii) requires that the Company deal exclusively with or any of its Subsidiaries to which the Company or any of its Subsidiaries is a third party in connection with the sale or purchase of any product or serviceparty;
(v) all Contracts providing for the development of any Contract that relates to an acquisition software or divestiture Intellectual Property Rights, independently or jointly, either by or for the Company or any of material assets that contains covenants, indemnities or its Subsidiaries (other contractual obligations that could impose a Liability that is material to than employee invention assignment agreements and consulting agreements with authors on the Company’s or any of its Subsidiaries’ standard form of agreement);
(vi) any Contract under which the Company has any outstanding all Contracts evidencing Indebtedness with a principal amount, or evidencing an Encumbrance on any property or asset involving obligations, in excess of the Company, other than a Permitted Encumbrance$100,000;
(vii) all Contracts under which any Person (other than the Company) has directly partnership, joint venture, property management, profit sharing, carry interest or indirectly guaranteed Indebtedness of the Company in excess of $50,000similar Contracts;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company or any of its Subsidiaries is a party, other than any Company Permits;
(xviiiix) any all Contracts that limit, in any material respector purport to limit, the ability of the Company or any of its Subsidiaries to compete in any line of business or with any Person person or entity or in any geographic area or during any period of timetime or to hire or retain any person;
(xixx) all Contracts that result in any person or entity holding a power of attorney from the Company or any of its Subsidiaries that relates to the Company and its Subsidiaries or their respective businesses;
(ixi) employment agreements all leases or master leases of personal property reasonably likely to result in annual payments of $50,000 or more in a twelve (excluding, for certainty, any employees who are employed at will) and 12)-month period;
(iixii) Contracts with independent contractors which involve the license or consultants grant of rights to Company Owned IP by the Company or any of its Subsidiaries, but excluding any nonexclusive licenses (or similar arrangementssublicenses) of Company Owned IP granted to which the Company is a party and which Company’s clients in the ordinary course of business that are not cancellable without material penalty substantially in the same form as the Company’s or without more than ninety (90) daysits Subsidiaries’ noticestandard form Advisory Contracts as have been provided to Purchaser; and
(xxxiii) any Contract to purchase, lease or otherwise acquire “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annumSecurities Act) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract contract that is material to the operation of the business Company and its Subsidiaries, taken as a whole.
(i) Each Material Contract is a legal, valid and binding obligation of the Company and not otherwise disclosed pursuant to this Section 4.10(a).
(b) The Company is in material compliance with the terms and provisions or any of each Material Contract. The Companyits Subsidiaries party thereto and, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto enforceable in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and against the other parties thereto, on there are no grounds for termination, rescission or repudiation of any Material Contract, and neither the Company nor any of its Subsidiaries is in material breach or violation of, or material default under, any Material Contract nor has any Material Contract been canceled by the other hand, with respect party; (ii) to the subject matter thereof. No event Knowledge of the Company, no other party is in material breach or circumstance has occurred thatviolation of, with notice or lapse material default under, any Material Contract; and (iii) the Company or any of time its Subsidiaries have not received any written, or bothto the Knowledge of the Company, would constitute an event oral claim of default under any such Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunderContract. The Company has no reason furnished or made available to believe any party to any Purchaser true and complete copies of all Material Contract will not fulfill its obligations thereunder Contracts without redaction, including amendments thereto that are material in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contract.
(d) nature. The Company has no Liability for the deferred purchase price of property, goods is not renegotiating or services, whether connected or not offering to renegotiate any Contract with a Top Customer in a way that would be materially adverse to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreementCompany.
Appears in 2 contracts
Sources: Second Tranche Stock Purchase Agreement (Siebert Financial Corp), Stock Purchase Agreement (Siebert Financial Corp)
Material Contracts. (a) Except as set forth in Section 4.10(a) 3.13 of the Company Disclosure Schedule sets forth a trueSchedule, complete and correct list of each as of the following date hereof, there are no Contracts to which included in the Company is a party or by which the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):
Purchased Assets (i) all Contracts containing covenants that contain restrictions with respect limit or purport to payment of dividends or any other distribution in respect of the Membership Units or other Equity of the Company;
(ii) any Contract that by its terms requires the payment by or on behalf of the Company in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, limit the ability of the Company a Seller or Transferred Entity to compete in any line of business or with any Person Person, industry or in any geographic geographical area or during any period of time;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and that relates to the Business; (ii) Contracts with independent contractors which expressly creates a partnership or consultants (joint venture or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract arrangement that is material relates to the operation of the business Business; (iii) for the sale or exclusive license of any material assets of the Company Business other than Inventory or Products or for the furnishing of services by a Seller or Transferred Entity other than in the ordinary course of business consistent with past practice; (iv) which is a collective bargaining agreement, employee association agreement or other agreement with any labor union, employee representative group, works council or similar collection of employees; (v) between or among a Seller or Transferred Entity, on the one hand, and not otherwise disclosed pursuant one or more Affiliates of a Seller (other than another Seller or Transferred Entity), on the other hand; (vi) under which the Business has made payments in excess of $2,000,000 in the last fiscal year or anticipate making payments in excess of $2,000,000 in the current fiscal year (other than purchase orders or invoices entered into in the ordinary course of business and ordinary course trade payables and trade receivables negotiated on an arms’ length basis); (vii) involves the sale, development, use or license of any Intellectual Property that is primarily used in the conduct of and material to the Business other than non-exclusive licenses entered into in the ordinary course of business; (viii) under which the Business received payments in excess of $2,000,000 in the last fiscal year or anticipates receiving payments in excess of $2,000,000 in the current fiscal year (other than sales orders or invoices entered into in the ordinary course of business); or (ix) containing any “take-or-pay” or “requirements” provision requiring any Seller (relating to the Business) or any Transferred Entity to make a minimum payment for or purchase a minimum quantity of goods and services from third party suppliers irrespective of usage, except for Contracts under this Section 4.10(a)clause (ix) which require payments by or to the Business of less than $1,000,000 per annum. Each such contract described in clauses (i)-(ix) is referred to herein as a “Material Contract.”
(b) The Company As of the date hereof (i) Each Seller and Transferred Entity is not in material compliance with the terms and provisions breach of each or default under any Material Contract. The CompanyContract to which such Seller or Transferred Entity is a party and, and to the Knowledge of the CompanyHoneywell, the no other party to any Material Contract is not in breach thereof or default thereunder, (ii) o the Knowledge of Honeywell, neither any Seller nor any Transferred Entity has received any written notice or claim of material default under any Material Contract or, as of the date of this Agreement, any written notice of an intention to terminate or challenge the validity or enforceability of any Material Contract and to the Knowledge of Honeywell, no such action is threatened, and (iii) to the Knowledge of Honeywell, no event has occurred that, with or without notice or lapse of time or both, would result in a material breach or default under any Material Contract by Honeywell. Sellers have Made Available to Purchaser true and complete copies of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any each Material Contract, including all material amendments, modifications, supplements, exhibits, schedules, addenda and restatements thereto and thereof. A true, complete and correct copy Sellers have not posted any surety bond or letter of each written Material Contract has been provided credit with respect to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure ScheduleBusiness.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth applicable Seller and/or Transferred Entity and, to the entire agreement and understanding (or complete description Knowledge of the material terms, as applicable), between the Company, on one hand, and the other parties theretoSellers, on the other hand, with respect parties thereto subject to the subject matter thereof. 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. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material ContractEnforceability Exceptions.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 2 contracts
Sources: Stock and Asset Purchase Agreement (Honeywell International Inc), Stock and Asset Purchase Agreement (Be Aerospace Inc)
Material Contracts. (a) Section 4.10(a4.06(a) of the Company Seller Disclosure Schedule sets forth a true, complete and correct list of Schedules lists each of the following Contracts to which the Company is a party that are primarily used in or by which the Company is bound and which have not been entirely fulfilled related to, or performed (such Contracts, collectivelyprimarily arise out of, the “Business, the Purchased Assets or the Assumed Liabilities (together with all Leases, the Material Contracts”):
(i) all Contracts that contain restrictions with respect to payment involving aggregate consideration in excess of dividends $2,000,000 or requiring performance by any other distribution party more than one year from the date hereof, which, in respect of the Membership Units each case, cannot be cancelled without penalty or other Equity of the Companyon less than 90 days’ notice;
(ii) any Contract that by its terms requires the payment by or on behalf of the Company in excess of $100,000 per annum or the delivery by the Company with (A) any supplier of goods or services with a fair market value that has resulted in excess or that Seller expects to result in expenditures by the Business of more than $100,000 per annum 1,000,000 in 2017 or provides for 2018 or (B) any customer that has resulted in or that Seller reasonably expects to result in sales by the Company to receive payments Business of more than $2,000,000 in excess of $100,000 per annum2017 or 2018;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances any Contract related to the employees of the Company extended in the Ordinary Course of Business)Business with a sales representative, manufacturer’s representative, distributor, dealer, broker, sales agency, advertising agency, or investment inother Person engaged in sales, any Person distribution, or promotional activities or any agreement relating other Contract providing for commissions, in each case, that has resulted in or that Seller reasonably expects to result in expenditures by the making Business of any such loan, advance more than $1,000,000 in 2017 or investment in excess of $25,0002018;
(iv) all Contracts that relate to the sale of any Contract that (i) requires of the Company to purchase any product or service Purchased Assets, other than Inventory and Tangible Personal Property in the ordinary course of business, for consideration in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service1,000,000;
(v) any Contract all executory Contracts that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material relate to the Companyacquisition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise), in each case involving amounts in excess of $2,000,000;
(vi) any Contract under which the Company has any except for agreements relating to trade receivables, all Contracts relating to indebtedness (including guarantees), in each case having an outstanding Indebtedness or evidencing an Encumbrance on any property or asset principal amount in excess of the Company, other than a Permitted Encumbrance$1,000,000;
(vii) all Contracts under which any Person relating to the placing of an Encumbrance (other than the Companya Permitted Encumbrance) has directly or indirectly guaranteed Indebtedness on any of the Company in excess of $50,000Purchased Assets;
(viii) any bonds lease for tangible personal property providing for rental payments in excess of $1,000,000 in any fiscal year or Contracts of Guarantee $5,000,000 in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Personaggregate;
(ix) all Contracts involving any Contract that expressly limits, in any material respect, the freedom of the Business to compete with any Person or in any geographical area;
(x) any commitment to make any material capital expenditures to the extent binding on the Business;
(xi) any Contract relating to any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development profit sharing or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any businessrelationship;
(xii) all Affiliate Contractsany Contract that contains a “most favored nation”, exclusivity, right of first offer, right of first refusal, requirements, “take or pay”, termination fee or similar provision, which, in each case, cannot be cancelled without penalty or on less than 90 days’ notice;
(xiii) all collective bargaining agreements or Contracts with any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of labor organization, union or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licenseeassociation;
(xiv) any Contract concerning which materially restricts the acquisition, disposition, occupancy, management or operation use of any Real Property owned, leased or used by the Company;Intellectual Property; and
(xv) all collective bargaining agreements entered into by Contracts, the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that loss or termination of which would be material reasonably likely to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is have a party;
(xviii) any Contracts that limit, in any material 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;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)Material Adverse Effect.
(b) The Company is in material compliance with the terms and provisions of each Material Contract. The Company, and Seller has provided to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete Buyer a true and correct copy of each written of the Material Contract has been provided Contracts. Except as would not be material to Purchaser and a description of the Business, each verbal Material Contract is set forth in Section 4.10(a) full force and effect and constitutes a legal, valid, and binding obligation of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and Seller or its Affiliates, enforceable against such party and, to Seller’s Knowledge, binding on the Company and enforceable against any other party thereto thereto, in accordance with its respective terms and (ii) in full force and effectterms. Each Except as would not be material to the Business, neither the Seller, nor its Affiliates, nor, to Seller’s Knowledge, any other party to a Material Contract (is in breach of, or description) sets forth the entire agreement and understanding (or complete description of the material termsdefault under, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. 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. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contractrespect.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 2 contracts
Sources: Transaction Agreement, Transaction Agreement (Starbucks Corp)
Material Contracts. (a) Except for the Original Merger Agreement, the Contracts filed as exhibits to the Company SEC Reports, and the Contracts listed in Subsections (i) through (xxi) of Section 4.10(a3.16(a) of the Company Disclosure Schedule sets forth a trueSchedule, complete and correct list of each as of the following Contracts to which Original Execution Date, none of the Company or any of its Subsidiaries is a party to or bound by which the Company is bound and which have not been entirely fulfilled or performed (such following Contracts, collectively, the “Material Contracts”)::
(i) all Contracts any Contract that contain restrictions with respect would be required to payment of dividends or any other distribution in respect be filed by the Company pursuant to Item 4 of the Membership Units or other Equity Instructions to Exhibits of Form 20-F under the CompanyExchange Act;
(ii) any Contract that by its terms requires relating to the payment by formation, creation, operation, management or on behalf control of any Subsidiary of the Company in excess of $100,000 per annum or the delivery by the Company of goods any other partnership, joint venture, strategic collaboration, global affiliation or services with a fair market value in excess of $100,000 per annum business cooperation, limited liability company or provides for the Company to receive payments in excess of $100,000 per annumsimilar arrangement;
(iii) all Contracts any Contract involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course ordinary course of Businessbusiness) or advance to (other than travel and entertainment advances allowances to the employees of the Company and any of its Subsidiaries extended in the Ordinary Course ordinary course of Businessbusiness), or investment in, any Person person or any agreement Contract relating to the making of any such loan, advance or investment in excess of $25,000for more than US$5,000,000;
(iv) any Contract that (i) requires involving Indebtedness of the Company to purchase or any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase its Subsidiaries of any product or servicemore than US$5,000,000;
(v) any Contract that relates to an acquisition (including so called take-or-pay or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vikeep-well agreements) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person person (other than the CompanyCompany or any of its Subsidiaries) has directly or indirectly guaranteed Indebtedness of the Company in excess or any of $50,000its Subsidiaries of more than US$5,000,000;
(vi) 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 US$5,000,000, other than a Permitted Encumbrances;
(vii) any management service, consulting, financial advisory or any other similar type Contract and all Contracts with investment or commercial banks;
(viii) any bonds Contract for the acquisition, disposition, sale, transfer or Contracts lease (including leases in connection with financing transactions) of Guarantee in which properties or assets of the Company acts or any of its Subsidiaries that have a fair market value or purchase price of more than US$5,000,000 (by merger, purchase or sale of assets or stock or otherwise) entered into since December 31, 2014 or, if prior to that date, have representations, warranties or indemnities that remain in effect or as a surety or guarantor with respect to any obligation (fixed or contingent) of another Personwhich claims are pending;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has litigation, arbitration, claim or other dispute with amount in controversy greater than US$5,000,000;
(x) any obligation Contract involving a standstill or Liability that will continue after the Closing Datesimilar arrangement;
(xi) any non-competition Contract limiting or restraining other Contract that purports to limit, curtail or restrict in any material respect the ability of the Company or any successor thereto from engaging or competing of its Subsidiaries to compete in any mannergeographic area, in any location industry or in any line of business;
(xii) all Affiliate Contractsany Contract for the employment of any senior executive officer;
(xiii) any Company IP Agreements as well as any Contract under that contains a put, call or similar right pursuant to which the Company is or any of its Subsidiaries could be required to purchase or sell, as applicable, any equity interests of any person or assets that have a party providing for the license fair market value or purchase price of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other more than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licenseeUS$5,000,000;
(xiv) any Contract concerning (other than Contracts granting Company Options, or Company RSs) giving the acquisitionother party the right to terminate such Contract as a result of the Original Merger Agreement, dispositionthis Agreement or the consummation of the Transactions, occupancyincluding the Merger, management or operation where (A) such Contract requires any payment in excess of any Real Property owned, leased or used US$5,000,000 to be made by the CompanyCompany or any of its Subsidiaries in any calendar year or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract is in excess of US$5,000,000 in any calendar year;
(xv) all collective bargaining agreements entered into any Contract that contains restrictions with respect to (A) payment of dividends or any distribution with respect to equity interests of the Company or any of its Subsidiaries, (B) pledging of share capital of the Company or any of its Subsidiaries or (C) issuance of guarantee by the CompanyCompany or any of its Subsidiaries;
(xvi) any Contract providing that for (A) a license, covenant not to ▇▇▇ or other right granted by any Third Party under any Intellectual Property to the Company indemnify or any Person of its Subsidiaries, (B) a license, covenant not to ▇▇▇ or other right granted by the Company or any of its Subsidiaries to any Third Party under any Intellectual Property, (C) an indemnity of any person by the Company or any of its Subsidiaries against any charge of infringement, misappropriation, unauthorized use or violation of any Intellectual Property right, or (D) any royalty, fee or other amount payable by the Company or any of its Subsidiaries to any person by reason of the ownership, use, sale or disposition of Intellectual Property, in an amount that would be material to the Companyeach case of clauses (A) through (D), other than any agreements for off-the-shelf Software and such agreement Contracts that are not material to business of the Group Companies, taken as a whole, and in each case of clauses (C) and (D), other than Contracts entered into by the Company and its Subsidiaries in the Ordinary Course ordinary course of Businessbusiness;
(xvii) any Contracts with any Governmental Authority to which the Company is a partyContract granting rights in respect of exclusivity, “most favored nation” or similar rights;
(xviii) any Contracts Contract between or among the Company or any of its Subsidiaries, on the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, that limit, involves payments of more than US$5,000,000 in any material 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 timeone year;
(xix) all each Control Agreement and any other any Contract which (iA) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which provides the Company is with effective control over any of its Subsidiaries in respect of which it does not, directly or indirectly, own a party and which are not cancellable without material penalty majority of the equity interests (each, an “Operating Subsidiary”), (B) provides the Company or without more than ninety any of its Subsidiaries the right or option to purchase the equity interests in any Operating Subsidiary, or (90C) days’ notice; andtransfers economic benefits from any Operating Subsidiary to any other Subsidiary of the Company;
(xx) any Contract to purchase, lease between the Company or otherwise acquire the right to own, use any of its Subsidiaries and any director or lease any property or assets, including such Contracts entered into by an Affiliate executive officer of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) Company or $150,000 in the aggregate (in the case of a lease, for the entire term any person beneficially owning five percent or more of the lease, not outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act (including any option termthose that would be required to be disclosed if the Form 20-F were filed as of the Original Execution Date); andor
(xxi) any other Contract which, if terminated, could reasonably be expected to result in a Company Material Adverse Effect. Each such Contract described in clauses (i) to (xxi) and each such Contract that is material would be a Material Contract if it had not been filed as an exhibit to the operation of the business of the Company and not otherwise disclosed pursuant SEC Reports is referred to this Section 4.10(a)herein as a “Material Contract.”
(b) The Except as would not have, individually or in the aggregate, a Company is in material compliance with the terms and provisions of Material Adverse Effect: (i) each Material Contract. The Contract is a legal, valid and binding obligation of a Group Company, as applicable, in full force and effect and enforceable against such Group Company in accordance with its terms, subject to the Knowledge Bankruptcy and Equity Exception; (ii) to the knowledge of the Company, the other party to any each Material Contract is not a legal, valid and binding obligation of the counterparty thereto, in full force and effect and enforceable against such counterparty in accordance with its terms, subject to the Bankruptcy and Equity Exception; (iii) no Group Company and, to the knowledge of the Company, no counterparty, is or is alleged to be in breach or violation of, or default under under, any Material Contract; (iv) to the knowledge of the Company, no person intends to terminate any Material Contract; and (v) none of the execution of the Original Merger Agreement, the execution of this Agreement or the consummation of any Transaction shall constitute a default under, give rise to cancellation rights under, or otherwise adversely affect any of its terms. The Company has not received notice the rights of any breach, default or notice of termination by any Person Group Company under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. 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. The Company has no reason furnished or made available to believe Parent true and complete copies of all Material Contracts, including any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contractamendments thereto.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Ocean Imagination L.P.), Agreement and Plan of Merger (Ctrip Investment Holding Ltd.)
Material Contracts. (ai) Section 4.10(a) Except for this Agreement and except for Contracts filed as exhibits to the Company Reports, as of the date hereof, none of the Company Disclosure Schedule sets forth or its Subsidiaries is a true, complete and correct list of each party to or bound by:
(A) any Contract that would be required to be filed by the Company pursuant to Item 4 of the following Contracts Instructions to Exhibits of Form 20-F under the Exchange Act;
(B) any Contract involving the payment or receipt of amounts by the Company or any of its Subsidiaries, or relating to indebtedness for borrowed money or any financial guaranty, of more than RMB 50,000,000 in any calendar year on its face;
(C) any Contract that contains a put, call or similar right pursuant to which the Company is or any of its Subsidiaries could be required to purchase or sell, as applicable, any equity interests of any Person or assets that have a party fair market value or by purchase price of more than RMB 30,000,000;
(D) any Contract relating to the formation, creation, operation, management or control of any joint venture;
(E) any Contract between the Company or any of its Subsidiaries and any director or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act; and
(F) any non-competition Contract or other Contract that limits or purports to limit in any material respect the type of business in which the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectivelyits Subsidiaries may engage, the type of goods or services which the Company or its Subsidiaries may manufacture, produce, import, export, offer for sale, sell or distribute or the manner or locations in which any of them may so engage in any business or use their assets. Each such Contract described in clauses (A) through (F) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company Reports is referred to herein as a “Material ContractsContract”):
(i) all Contracts that contain restrictions with respect to payment of dividends or any other distribution in respect of the Membership Units or other Equity of the Company;.
(ii) any Contract that by its terms requires Except as is not, individually or in the payment by or on behalf aggregate, a Material Adverse Effect, (A) each of the Company in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum;
(iii) all Material Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel is valid and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance binding on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any mannerits Subsidiaries, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material 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;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a leasemay be, per annum) or $150,000 in the aggregate (in the case of a leaseand, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a).
(b) The Company is in material compliance with the terms and provisions of each Material Contract. The Company, and to the Knowledge of the Company, the each other party thereto, and is in full force and effect subject to any Material Contract the Bankruptcy and Equity Exception; and (B) there is not in no breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination Material Contracts by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid or its Subsidiaries and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No no event or circumstance has occurred that, that with notice or the lapse of time or both, the giving of notice or both would constitute an event of a breach or 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. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and by the Company has not received any notice of termination or intent to terminate by any party to any Material Contractits Subsidiaries.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (China GrenTech CORP LTD), Merger Agreement (China GrenTech CORP LTD)
Material Contracts. (ai) Section 4.10(a6.1(A)(t)(i) of the Company Allergan Disclosure Schedule sets forth a true, complete and correct list as of the date of this Agreement of each of the following Contracts (other than any Allergan Benefit Plan) to which the Company Allergan or any of its Subsidiaries is a party or by which the Company it is bound (each such Contract required to be so listed, and each of the following types of Contracts (other than any Allergan Benefit Plan) described below to which have not been entirely fulfilled Allergan or performed (such Contractsany of its Subsidiaries becomes a party or by which it otherwise becomes bound after the date of this Agreement, collectively, the an “Allergan Material ContractsContract”):
(A) each (i) all acquisition or divestiture Contract (including any Contracts that contain restrictions with respect pursuant to payment of dividends or which any other distribution in respect member of the Membership Units Allergan Group has transferred or other Equity agreed to transfer ownership of the Company;
any Intellectual Property) and (ii) license (including any Contract that by its terms in-license or out-license and any sublicense), collaboration agreement or similar or equivalent Contract, that, in the case of each of clauses (i) and (ii), (x) has a maximum potential value (or which otherwise requires the payment by receipt or on behalf making of the Company payments) in excess of $100,000 per annum 100 million (including pursuant to any “earn-out,” contingent value rights, milestone payments, license fees, royalty payments, development costs or other contingent payment or value obligations), (y) involves the delivery by issuance of any Equity Securities of Allergan or any of its Subsidiaries to a Third Party following the Company date of goods this Agreement or services (z) grants to any Person (other than any member of the Allergan Group) any right of first refusal, right of first negotiation, right of first offer, option to purchase, option to license, or any other similar rights with respect to any Allergan Product or any material Intellectual Property of Allergan;
(B) any Contract with any Governmental Entity that is material to Allergan and its Subsidiaries, taken as a fair market whole, and involving or that would reasonably be expected to involve payments to or from any Governmental Entity in an amount having a maximum potential value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum100 million;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(ivC) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution limits or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect purports to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability freedom of the Company Allergan or any of its Subsidiaries to engage or compete in any line of business or with any Person or in any geographic area or during that would so limit or purport to limit, in any period material respect, the freedom of timeAbbVie or any of its Affiliates to take such actions after the Effective Time, (y) contains exclusivity or “most favored nation” obligations or restrictions that restrict or purport to restrict Allergan or any of its Subsidiaries in any material respect or that would so limit or purport to limit AbbVie or any of its Affiliates after the Effective Time, (z) contains any other provisions materially restricting or purporting to materially restrict the ability of Allergan or any of its Subsidiaries to sell, market, distribute, promote, manufacture, develop, commercialize, test or research any Allergan Products through third parties or that would so limit or purport to limit AbbVie or any of its Affiliates after the Effective Time;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xxD) any Contract relating to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, third party indebtedness for an amount borrowed money in excess of $100,000100 million (whether incurred, individually (in the case assumed, guaranteed or secured by any asset) of a lease, per annum) Allergan or $150,000 in the aggregate (in the case any of a lease, for the entire term of the lease, not including any option term); andits Subsidiaries;
(xxiE) any Contract restricting Allergan or any of its Subsidiaries from (x) the payment of dividends (y) the making of distributions to shareholders or (z) the ability to repurchase or redeem Equity Securities;
(F) any joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization, research, development or other Contract that similar agreement, which is material to the operation Allergan Group, taken as a whole;
(G) any Contracts or other transactions with any (A) executive officer or director of Allergan, or (B) affiliate (as such term is defined in Rule 12b-2 promulgated under the Exchange Act) or “associates” (or members of any of their “immediate family”) (as such terms are respectively defined in Rule 12b-2 and Rule 16a-1 of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a).
(bExchange Act) The Company is in material compliance with the terms and provisions of each Material Contract. The Company, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breachsuch executive officer, default director or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. 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. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contract.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.beneficial owner;
Appears in 2 contracts
Sources: Transaction Agreement, Transaction Agreement
Material Contracts. (a) Section 4.10(a) 4.11 of the Company Disclosure Schedule sets forth a true, complete and correct list of Letter lists each of the following Contracts contracts and agreements (and all amendments, modifications and supplements thereto and all side letters to which the Company or any of its 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 the Company is any of their respective properties or assets are bound and which have not been entirely fulfilled or performed (such other than Government Contracts, collectively, the “Material Contracts”which are addressed in Section 4.10):
(i) all Contracts that contain restrictions with respect any contract or agreement, whether written or otherwise, for the purchase or sale of any material personal property or for the furnishing of services to payment of dividends or by the Company or any other distribution in respect of its Subsidiaries that involves future aggregate annual payments to or by the Membership Units Company or other Equity any of its Subsidiaries of $1,000,000 or more (excluding those contracts and agreements terminable by the CompanyCompany or such Subsidiary upon 180 days’ notice or less without liability to the Company exceeding $500,000);
(ii) any Contract that by its terms requires contract, agreement or instrument relating to or evidencing capitalized lease obligations or other indebtedness of, for the payment by benefit of, or on behalf of payable to, the Company in excess or any of $100,000 per annum its Subsidiaries (or the delivery any guaranty of capital lease obligations or other indebtedness of or by the Company or any of goods or services with a fair market value its Subsidiaries) in excess the amount of $100,000 per annum 500,000 or provides for the Company to receive payments in excess of $100,000 per annummore;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) any contract or advance agreement pursuant to (other than travel and entertainment advances which any third party is authorized to use any material intellectual property rights owned by or exclusively licensed to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000its Subsidiaries;
(iv) any Contract that (i) requires contract or agreement pursuant to which the Company or any of its Subsidiaries is authorized to purchase use any product or service in excess of $100,000 from a third party or (ii) requires that the material Company deal exclusively with a third party in connection with the sale or purchase of any product or serviceIntellectual Property Rights;
(v) any Contract that relates agreement concerning an interest rate cap, interest rate collar, interest rate swap, currency hedging transaction or any other similar agreement to an acquisition which the Company or divestiture any of material assets that contains covenants, indemnities or other contractual obligations that could impose its Subsidiaries is a Liability that is material to the Companyparty;
(vi) any Contract under agreement (other than agreements containing immaterial or de minimis restrictions) that contains any non-compete or exclusivity provisions with respect to any line of business in which the Company has or any outstanding Indebtedness of its Subsidiaries is currently engaged or evidencing an Encumbrance on geographic area with respect to the Company or any property of its Subsidiaries, or asset that purports to restrict in any material respect the right of the Company, other than a Permitted EncumbranceCompany or any of its Subsidiaries to conduct any line of business in which the Company or any of its Subsidiaries is currently engaged or to compete with any Person or operate in any geographic area or location;
(vii) all Contracts under which any Person (material partnership, limited liability company agreement, joint venture or other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000similar agreement entered into with any third party;
(viii) any bonds contract or Contracts of Guarantee in which the Company acts as a surety or guarantor agreement with respect to any obligation (fixed acquisition or contingent) disposition of another Personany person or business or material portion thereof pursuant to which the Company or any of its Subsidiaries has any continuing indemnification, “earn-out” or other contingent payment obligation;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development contract or similar arrangementagreement pursuant to which the Company or any of its Subsidiaries agrees to indemnify or hold harmless any director or executive officer of the Company or any of its Subsidiaries (other than the organizational documents of the Company or the Company’s Subsidiaries);
(x) all Contracts involving any resolution contract or settlement agreement that would prevent, materially delay or materially impede the Company’s ability to consummate the Offer, the Merger or any of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;other transactions contemplated by this Agreement; or
(xi) any Contract limiting or restraining the Company or commitments and agreements to enter into any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability of the Company to compete foregoing. Each such contract described in any line of business or with any Person or in any geographic area or during any period of time;
(xix) all clauses (i) employment agreements through (excludingxi) above, for certaintytogether with each contract described in paragraph (b) below, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) is referred to which the Company is herein as a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)“Contract.”
(b) The Company is in All the material compliance with the terms and provisions of each Material Contract. The Company, and contracts that are required to be filed as exhibits to the Knowledge of the Company, the other party to any Material Contract is not in breach Company SEC Reports have been described or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedulefiled as required.
(c) Each Material Contract of the Contracts is (i) a valid and binding on obligation of the Company (or the Subsidiaries of the Company party thereto), and to the Company’s knowledge, the other parties thereto, enforceable against the Company and its Subsidiaries and, to the Company’s knowledge, the other parties thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, except as applicable)enforceability may be limited by bankruptcy laws, between other similar laws affecting creditors’ rights and general principles of equity affecting the Company, on one hand, availability of specific performance and the other parties thereto, on the other hand, with respect to the subject matter thereof. 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. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contractequitable remedies.
(d) The Neither the Company nor any of its Subsidiaries is, nor to the Company’s knowledge is any other party, in breach, default or violation (and no event has no Liability for the deferred purchase price of property, goods or services, whether connected occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, to the acquisition Company’s knowledge, through the action or inaction of any business (earn-out third party that with notice or other similar type the lapse of paymentstime or both would constitute a breach, default or violation) of any term, condition or noncompetition agreementprovision of any Contract, except for breaches, defaults or violations that have not had and would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (United Industrial Corp /De/), Merger Agreement (Textron Inc)
Material Contracts. (ai) Section 4.10(a) Except as set forth in Schedule 8(d), as of the Company Disclosure Schedule sets forth a truedate hereof Seller, complete and correct list of each of the following Contracts to which the Company is a party or by which the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):
(i) all Contracts that contain restrictions with respect to payment the Business, is not party to or otherwise bound by or subject to:
1) any written employment, severance or sales representative contract which contains an obligation (excluding commissions) to pay more than $100,000 per year;
2) any written consulting contract;
3) any real property lease or equipment lease which constitutes part of dividends the Business or the Assets;
4) any other distribution in Contract containing any covenant limiting the freedom of Seller, with respect of the Membership Units Business or other Equity the operations of the CompanyBusiness, to engage in any line of business or compete with any Person in any geographic area in any material respect;
(ii5) any Contract that by its terms requires in effect on the payment by date of this Agreement relating to the disposition or on behalf acquisition of the Company in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business)assets of, or investment any interest in, any Person or any agreement relating business enterprise which relates to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, Business other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii6) any Contracts offset agreement entered into in connection with an international sales transaction and relating to any Governmental Authority contract that imposes on the Business an obligation to perform that will continue in effect on or after the Closing Date;
7) any Contract of any kind that (i) requires a payment by any party in excess of, or a series of payments which in the aggregate exceed, $100,000, (ii) has a term, or requires the performance of any obligations by any party over a period, in excess of one year, or (iii) involves any director, officer or stockholder of the Seller;
8) any Contract pursuant to which the Company Seller on behalf of the Business has made or will make loans or advances, or has or will have incurred debts or become a guarantor or surety or pledged its credit on or otherwise become responsible with respect to any undertaking of another Person, in each case, in an amount over $100,000 (except for the negotiation or collection of negotiable instruments in transactions in the Ordinary Course of Business);
9) any indenture, loan agreement, note, mortgage, security agreement, lease of real property or personal property or other Contract relating to the borrowing of funds, an extension of credit or financing for which the Business is obligated; or
10) any Contract involving a partnership, joint venture or other cooperative undertaking.
ii) Except as disclosed in Schedule 8(d), each contract disclosed in Schedule 8(d) is a party;
legal, valid and binding obligation of Seller enforceable against Seller in accordance with its terms (xviiiexcept as limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws now or hereafter in effect relating to or affecting creditors’ rights generally, including the effect of statutory and other laws regarding fraudulent conveyances and preferential transfers), and except with respect to liquidated damages owed by Seller and any delays or circumstances in connection therewith, Seller is not in default and has not failed to perform any obligation thereunder, and, to the Knowledge of Seller, there does not exist any event, condition or omission which would constitute a material breach or material default (whether by lapse of time or notice or both) by any Contracts that limitother Person, which would give rise to any right of termination. Except as disclosed in any material respectSchedule 8(d), the ability as of the Company date of this Agreement Seller has not received any written notification from any other Person party to compete any of the Contracts disclosed in any line Schedule 8(d) of business or with any Person or in any geographic area or during any period a claim of time;
(xix) all default by Seller. Seller has previously made available to Buyer (i) employment agreements true, accurate and complete copies of each document set forth on Schedule 8(d) (excludingcollectively, for certainty, any employees who are employed at willthe “Identified Contracts”) and (ii) a written description of each oral arrangement so listed on Schedule 8(d). Except as set forth on Schedule 8(d), all such Identified Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts arrangements have been entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (Seller in the case Ordinary Course of a lease, per annum) or $150,000 Business. Except for sales of assets in the aggregate (in the case Ordinary Course of a leaseBusiness and this Agreement, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a).
(b) The Company is in material compliance with the terms and provisions of each Material Contract. The Company, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under neither Seller nor any of its terms. The Company Affiliates has not received notice of any breach, default Contract or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, arrangement with respect to the subject matter thereof. 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 sale or other changes disposition of the Business or any right or obligation or of the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material ContractAssets.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Mastec Inc), Asset Purchase Agreement (Mastec Inc)
Material Contracts. (a) Except for the contracts described in or filed as an exhibit to the Company SEC Documents or set forth in Section 4.10(a) 3.13 or Section 3.18 of the Company Disclosure Schedule sets forth a true, complete and correct list of each of the following Contracts to which the Company is a party or by which the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):), neither Company nor any of its Subsidiaries is a party to or is bound by any of the following:
(i) all Contracts that contain restrictions any contract or agreement entered into other than in the ordinary course of business consistent with respect to payment past practice for the acquisition of dividends the securities of or any other distribution in respect material portion of the Membership Units assets of any other Person or other Equity of the Companyentity;
(ii) any Contract that by its terms requires contract or agreement for the payment by or on behalf purchase of the Company services in excess of $100,000 per annum which cannot be cancelled by Company or the delivery by the Company any of goods its Subsidiaries without penalty or services with a fair market value further payment or without more than 45 days’ notice;
(iii) any contract, agreement or instrument in excess of $100,000 per annum that expires or provides for may be renewed at the Company to receive payments in excess option of $100,000 per annum;
(iii) all Contracts involving a loan (any Person other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating of its Subsidiaries so as to expire more than one year after the making date of any such loan, advance or investment in excess of $25,000this Agreement;
(iv) any Contract that material contract with any independent contractor or consultant (ior similar arrangement) requires the Company to purchase any product or service in excess of $100,000 from a third party or which is not cancelable without penalty and without more than thirty (ii30) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or servicedays’ notice;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenantstrust indenture, indemnities mortgage, promissory note, loan agreement or other contractual obligations that could impose contract, agreement or instrument for the borrowing of money, any currency exchange, commodities or other hedging arrangement or any leasing transaction of the type required to be capitalized in accordance with GAAP, in each case, where Company or any of its Subsidiaries is a Liability that is material to the Companylender, borrower or guarantor;
(vi) any Contract under which contract or agreement limiting the freedom of Company has or any outstanding Indebtedness of its Subsidiaries or evidencing an Encumbrance on any property of their respective employees to engage in any line of business or asset of the Company, to compete with any other than a Permitted EncumbrancePerson;
(vii) all Contracts under which any Person (other than the contract or agreement with any Affiliate of Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds agreement of guarantee, support, indemnification, assumption or Contracts of Guarantee in which the Company acts as a surety endorsement of, or guarantor any similar commitment with respect to to, the obligations, liabilities (whether accrued, absolute, contingent or otherwise) or indebtedness of any obligation (fixed or contingent) other Person other than those entered into in the ordinary course of another Personbusiness;
(ix) all Contracts involving any joint venturematerial agreement which would be terminable other than by Company or its Subsidiaries or under which a payment obligation would arise or be accelerated, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangementin each case as a result of the consummation of the transactions contemplated by this Agreement;
(x) all Contracts involving any resolution material alliance, cooperation, joint venture, stockholders’ partnership or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Datesimilar agreement;
(xi) any Contract limiting broker, distributor, dealer, agency, sales promotion, market research, market consulting or restraining advertising agreement involving in excess of $100,000 (other than software licenses entered into in the Company or any successor thereto from engaging or competing in any manner, in any location or in any ordinary course of business);
(xii) all Affiliate Contractsany material research, development, sales representative, marketing or reseller agreement, or any service, support or maintenance agreement related to the business or technology of Company or any of its respective Subsidiaries;
(xiii) any Company IP Agreements as well as material agreement, option or commitment or right with, or held by, any Contract under which the Company is a party providing for the license of Third Party to acquire, use or settlement with respect have access to any Intellectual Property includingassets or properties, without limitationor any interest therein, the Company’s Intellectual Property of Company or any of its Subsidiaries (other than commercially available software and hardware) and any Intellectual Property license agreements under which licenses entered into in the Company is currently a licenseeordinary course of business);
(xiv) any Contract concerning the acquisitionmaterial agreement that affects or relates to Company IP, dispositionincluding, occupancywithout limitation, management any material agreement pursuant to which any person or operation of entity is authorized to use or has an ownership or security interest in any Real Property owned, leased or used by the CompanyCompany IP;
(xv) all collective bargaining agreements entered into any material contract or agreement which would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by the Company;this Agreement; and
(xvi) any Contract providing that other contract the loss of which would have a Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material 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;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)Material Adverse Effect.
(b) The Company and each of its Subsidiaries have performed all of the obligations required to be performed by them and are entitled to all accrued benefits under, and are not alleged to be in default in respect of, each Material Contract to which Company or any Subsidiary is a party or by which Company or any Subsidiary is bound, except as would not, individually or in the aggregate, have a Company Material Adverse Effect. Each of the Material Contracts is in material compliance with the terms full force and provisions of each Material Contract. The Companyeffect, and to the Knowledge of the Company, the without amendment (other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth than as disclosed in Section 4.10(a) 3.13 of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Companyand there exists no default or event of default or event, on one handoccurrence, and the other parties thereto, on the other handcondition or act, with respect to Company or any of its Subsidiaries or, to the subject matter thereof. No knowledge of Company, with respect to any other contracting party, which, with the giving of notice, the lapse of the time or the happening of any other event or circumstance has occurred that, with notice or lapse of time or bothcondition, would constitute an become a default or event of default under any Material Contract Contract, except, as would not, individually or result in a termination thereof the aggregate, be material to Company. True, correct and complete copies of all Material Contracts have been furnished or would cause made available to Parent or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason filed as exhibits to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material ContractSEC Documents.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Palmsource Inc)
Material Contracts. (a) Except for the Original Merger Agreement, the Contracts filed as exhibits to the Company SEC Reports, and the Contracts listed in Subsections (i) through (xxi) of Section 4.10(a3.16(a) of the Company Disclosure Schedule sets forth a trueSchedule, complete and correct list of each as of the following Contracts to which Original Execution Date, none of the Company or any of its Subsidiaries is a party to or bound by which the Company is bound and which have not been entirely fulfilled or performed (such following Contracts, collectively, the “Material Contracts”)::
(i) all Contracts any Contract that contain restrictions with respect would be required to payment of dividends or any other distribution in respect be filed by the Company pursuant to Item 4 of the Membership Units or other Equity Instructions to Exhibits of Form 20-F under the CompanyExchange Act;
(ii) any Contract that by its terms requires relating to the payment by formation, creation, operation, management or on behalf control of any Subsidiary of the Company in excess of $100,000 per annum or the delivery by the Company of goods any other partnership, joint venture, strategic collaboration, global affiliation or services with a fair market value in excess of $100,000 per annum business cooperation, limited liability company or provides for the Company to receive payments in excess of $100,000 per annumsimilar arrangement;
(iii) all Contracts any Contract involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course ordinary course of Businessbusiness) or advance to (other than travel and entertainment advances allowances to the employees of the Company and any of its Subsidiaries extended in the Ordinary Course ordinary course of Businessbusiness), or investment in, any Person person or any agreement Contract relating to the making of any such loan, advance or investment in excess of $25,000for more than US$5,000,000;
(iv) any Contract that (i) requires involving Indebtedness of the Company to purchase or any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase its Subsidiaries of any product or servicemore than US$5,000,000;
(v) any Contract that relates to an acquisition (including so called take-or-pay or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vikeep-well agreements) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person person (other than the CompanyCompany or any of its Subsidiaries) has directly or indirectly guaranteed Indebtedness of the Company in excess or any of $50,000its Subsidiaries of more than US$5,000,000;
(vi) 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 US$5,000,000, other than a Permitted Encumbrances;
(vii) any management service, consulting, financial advisory or any other similar type Contract and all Contracts with investment or commercial banks;
(viii) any bonds Contract for the acquisition, disposition, sale, transfer or Contracts lease (including leases in connection with financing transactions) of Guarantee in which properties or assets of the Company acts or any of its Subsidiaries that have a fair market value or purchase price of more than US$5,000,000 (by merger, purchase or sale of assets or stock or otherwise) entered into since December 31, 2014 or, if prior to that date, have representations, warranties or indemnities that remain in effect or as a surety or guarantor with respect to any obligation (fixed or contingent) of another Personwhich claims are pending;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has litigation, arbitration, claim or other dispute with amount in controversy greater than US$5,000,000;
(x) any obligation Contract involving a standstill or Liability that will continue after the Closing Datesimilar arrangement;
(xi) any non-competition Contract limiting or restraining other Contract that purports to limit, curtail or restrict in any material respect the ability of the Company or any successor thereto from engaging or competing of its Subsidiaries to compete in any mannergeographic area, in any location industry or in any line of business;
(xii) all Affiliate Contractsany Contract for the employment of any senior executive officer;
(xiii) any Company IP Agreements as well as any Contract under that contains a put, call or similar right pursuant to which the Company is or any of its Subsidiaries could be required to purchase or sell, as applicable, any equity interests of any person or assets that have a party providing for the license fair market value or purchase price of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other more than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licenseeUS$5,000,000;
(xiv) any Contract concerning (other than Contracts granting Company Options, or Company RSs) giving the acquisitionother party the right to terminate such Contract as a result of the Original Merger Agreement, dispositionthis Agreement or the consummation of the Transactions, occupancyincluding the Merger, management or operation where (A) such Contract requires any payment in excess of any Real Property owned, leased or used US$5,000,000 to be made by the CompanyCompany or any of its Subsidiaries in any calendar year or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract is in excess of US$5,000,000 in any calendar year;
(xv) all collective bargaining agreements entered into any Contract that contains restrictions with respect to (A) payment of dividends or any distribution with respect to equity interests of the Company or any of its Subsidiaries, (B) pledging of share capital of the Company or any of its Subsidiaries or (C) issuance of guarantee by the CompanyCompany or any of its Subsidiaries;
(xvi) any Contract providing that for (A) a license, covenant not to s▇▇ or other right granted by any Third Party under any Intellectual Property to the Company indemnify or any Person of its Subsidiaries, (B) a license, covenant not to s▇▇ or other right granted by the Company or any of its Subsidiaries to any Third Party under any Intellectual Property, (C) an indemnity of any person by the Company or any of its Subsidiaries against any charge of infringement, misappropriation, unauthorized use or violation of any Intellectual Property right, or (D) any royalty, fee or other amount payable by the Company or any of its Subsidiaries to any person by reason of the ownership, use, sale or disposition of Intellectual Property, in an amount that would be material to the Companyeach case of clauses (A) through (D), other than any agreements for off-the-shelf Software and such agreement Contracts that are not material to business of the Group Companies, taken as a whole, and in each case of clauses (C) and (D), other than Contracts entered into by the Company and its Subsidiaries in the Ordinary Course ordinary course of Businessbusiness;
(xvii) any Contracts with any Governmental Authority to which the Company is a partyContract granting rights in respect of exclusivity, “most favored nation” or similar rights;
(xviii) any Contracts Contract between or among the Company or any of its Subsidiaries, on the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, that limit, involves payments of more than US$5,000,000 in any material 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 timeone year;
(xix) all each Control Agreement and any other any Contract which (iA) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which provides the Company is with effective control over any of its Subsidiaries in respect of which it does not, directly or indirectly, own a party and which are not cancellable without material penalty majority of the equity interests (each, an “Operating Subsidiary”), (B) provides the Company or without more than ninety any of its Subsidiaries the right or option to purchase the equity interests in any Operating Subsidiary, or (90C) days’ notice; andtransfers economic benefits from any Operating Subsidiary to any other Subsidiary of the Company;
(xx) any Contract to purchase, lease between the Company or otherwise acquire the right to own, use any of its Subsidiaries and any director or lease any property or assets, including such Contracts entered into by an Affiliate executive officer of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) Company or $150,000 in the aggregate (in the case of a lease, for the entire term any person beneficially owning five percent or more of the lease, not outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act (including any option termthose that would be required to be disclosed if the Form 20-F were filed as of the Original Execution Date); andor
(xxi) any other Contract which, if terminated, could reasonably be expected to result in a Company Material Adverse Effect. Each such Contract described in clauses (i) to (xxi) and each such Contract that is material would be a Material Contract if it had not been filed as an exhibit to the operation of the business of the Company and not otherwise disclosed pursuant SEC Reports is referred to this Section 4.10(a)herein as a “Material Contract.”
(b) The Except as would not have, individually or in the aggregate, a Company is in material compliance with the terms and provisions of Material Adverse Effect: (i) each Material Contract. The Contract is a legal, valid and binding obligation of a Group Company, as applicable, in full force and effect and enforceable against such Group Company in accordance with its terms, subject to the Knowledge Bankruptcy and Equity Exception; (ii) to the knowledge of the Company, the other party to any each Material Contract is not a legal, valid and binding obligation of the counterparty thereto, in full force and effect and enforceable against such counterparty in accordance with its terms, subject to the Bankruptcy and Equity Exception; (iii) no Group Company and, to the knowledge of the Company, no counterparty, is or is alleged to be in breach or violation of, or default under under, any Material Contract; (iv) to the knowledge of the Company, no person intends to terminate any Material Contract; and (v) none of the execution of the Original Merger Agreement, the execution of this Agreement or the consummation of any Transaction shall constitute a default under, give rise to cancellation rights under, or otherwise adversely affect any of its terms. The Company has not received notice the rights of any breach, default or notice of termination by any Person Group Company under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. 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. The Company has no reason furnished or made available to believe Parent true and complete copies of all Material Contracts, including any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contractamendments thereto.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Zhang Ray Ruiping), Agreement and Plan of Merger (eHi Car Services LTD)
Material Contracts. (a) Except for Contracts set forth in Section 4.10(a3.11(a) of the Company Holdings Disclosure Schedule sets forth a true(collectively, complete and correct list of each of the following Contracts "Material Contracts"), neither Holdings (with respect to which the Business) nor any Transferred Company is a party to or by which the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):by:
(i) all Contracts any Contract that contain provides for payment to a Transferred Company for the performance of services in an amount in excess of $1,000,000 annually;
(ii) any Contract to be performed relating to capital expenditures (other than those provided for in the Capital Expenditure Plans of the Business for 1999) in excess of $500,000 in any calendar year, or in the aggregate require expenditures in excess of $2,000,000;
(iii) any Contract not entered into the ordinary course of business, requiring payments by or to the Transferred Companies in excess of $1,000,000;
(iv) any Contract which contains restrictions with respect to payment of dividends or any other distribution in respect of the Membership Units or other Equity capital stock of the a Transferred Company;
(iiv) any Contract that by its terms requires the payment by or on behalf of the Company relating to indebtedness for borrowed money in an amount in excess of $100,000 per annum 1,000,000 (excluding trade payables in the ordinary course of business, intercompany indebtedness and leases for telephones, copy machines, facsimile machines and other office equipment);
(vi) any lease (or the delivery sublease) of Real Property requiring payments by the Company of goods or services with a fair market value Transferred Companies in an amount in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum1,000,000 annually;
(iiivii) all Contracts involving a any loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course ordinary course of Businessbusiness in amounts not exceeding $1,000,000 in the aggregate), or investment inin (other than investments in any Transferred Company), any Person Person, or any agreement Contract relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000investment;
(viii) any bonds guarantee in respect of any indebtedness or Contracts obligation of Guarantee any Person in which an amount in excess of $1,000,000 (other than in the Company acts as a surety or guarantor ordinary course of business and other than with respect to any indebtedness or obligation (fixed or contingent) of another Personany Transferred Company);
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any material Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability of the any Transferred Company to compete engage in any line of business or to compete with any Person or in any geographic area or during any period of timePerson;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xxx) any Contract to purchasematerial amendment, lease modification or otherwise acquire the right to own, use or lease supplement in respect of any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)foregoing.
(b) The Company is in material compliance with the terms and provisions of each Material Contract. The Company, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is Except as set forth in Section 4.10(a3.12(b) of the Company Holdings Disclosure Schedule.
(c) Each Material Contract is : (i) valid and binding on the there is no pending default under or breach of any Material Contract by Holdings or any Transferred Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one handthereto, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No no event or circumstance has occurred that, with notice or the lapse of time or the giving of notice or both, would constitute an event of a default under thereunder by Holdings or any Transferred Company party thereto, in any such case in which such default, breach or event, individually or in the aggregate, would have a Material Contract or result in a termination thereof or would cause or permit Adverse Effect on the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has Business; and (ii) no reason to believe any party to any such Material Contract will not fulfill its obligations thereunder has given written notice to Holdings or any Transferred Company of, or made a written claim against Holdings or any Transferred Company with respect to, any breach or default thereunder, in all material respectsany such case, and in which such breach or default, individually or in the Company has not received any notice of termination or intent to terminate by any party to any aggregate, would have a Material ContractAdverse Effect on the Business.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 2 contracts
Sources: Agreement and Plan of Merger and Reorganization (Fah Co Inc), Merger Agreement (Avis Rent a Car Inc)
Material Contracts. (a) As of the date of this Agreement, Section 4.10(a4.18(a) of the Company Disclosure Schedule sets forth a true, complete and correct list of each all of the following Contracts to which the Company or any Company Subsidiary is a party or by which are applicable to any of their assets or properties, in each case as amended through the Company is bound and which have not been entirely fulfilled or performed date hereof (such Contracts, collectively, the each a “Material ContractsContract”):
(i) all Contracts that contain restrictions with respect are material to payment the Company and the Company Subsidiaries, taken as a whole, other than (x) Contracts of dividends Project Entities entered into in Development and Investment Activities under which the Company or any Company Subsidiary other distribution in respect of than a Project Entity has guaranteed the Membership Units Indebtedness or other Equity payment obligation of the Companysuch Project Entity and (y) SPV Guarantees;
(ii) Except for SPV Guarantees, Contracts under which the Company or any Contract that by its terms requires Company Subsidiary (other than a Project Entity) has guaranteed the Indebtedness or other payment by obligation of any Project Entity or on behalf Minority Investment, including as a result of the Company in excess of $100,000 per annum or the execution, delivery and performance by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for this Agreement and the consummation by the Company to receive payments in excess of $100,000 per annumthe Merger and the other transactions contemplated hereby;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors SPV Guarantees and Contracts required to be disclosed in clause (a)(ii) above, Contracts providing for the borrowing or lending of money by the Company or any Company Subsidiary, whether as borrower, lender or guarantor other than (x) loans to employees in connection with their initial hiring in the Ordinary Course of BusinessBusiness not exceeding $100,000 individually and (y) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xviiiv) Contracts pursuant to which any material property or assets of the Company or any Company Subsidiary is, or may reasonably be expected to become subject to, a Lien (other than Permitted Liens) other than (x) SPV Guarantees, and (y) Contracts creating Liens on assets of Project Entities entered into in Development and Investment Activities;
(v) joint venture, alliance, affiliation or partnership Contracts or joint development or similar Contracts of the Company and Company Subsidiaries (other than Special Purpose Vehicles), including with respect to any direct or indirect investment in, or development of, real property by the Company or a Company Subsidiary other than a Special Purpose Vehicle;
(vi) other than SPV Guarantees and Contracts of Special Purpose Vehicles entered into in Development and Investment Activities that do not have recourse to the Company or any Company Subsidiary other than a Special Purpose Vehicle, Contracts for the acquisition or sale, directly or indirectly (by merger or otherwise), of material assets (whether tangible or intangible) of the Company or any Company Subsidiary or the Equity Interests of the Company or any Company Subsidiary, including Contracts for any such completed acquisitions or sales pursuant to which an “earn out” or similar form of obligation (whether absolute or contingent) is currently pending or for which there are any continuing indemnification or similar obligations, in each case excluding any such Contracts entered into prior to January 1, 2003 and with respect to which there are no remaining obligations on the part of any party (including any indemnification obligations);
(vii) any interest rate or currency swaps, caps, floors or option Contracts with of the Company or any Governmental Authority Company Subsidiary or any other interest rate or currency risk management arrangement or foreign exchange Contracts of the Company or any Company Subsidiary;
(viii) all material Contracts concerning Company Intellectual Property;
(ix) contracts with, or commitments to, Affiliates of the Company, as set forth in Section 4.22 of the Company Disclosure Schedule;
(x) Contracts pursuant to which the Company or any Company Subsidiary is a party;
obligated to make any capital contribution or other investment in or loan to any Person other than (xviiix) any SPV Guarantees, (y) Contracts that limit, relating to the items described in any material respect, the ability Section 4.6 of the Company Disclosure Schedule with respect to compete in any line of business or with any Person or in any geographic area or during any period of time;
(xix) all (i) employment agreements (excludingProject Entities, for certainty, any employees who are employed at will) and (iiz) Contracts with independent contractors or consultants (or similar arrangements) to of Project Entities entered into in Development and Investment Activities for which the Company is a party and which are not cancellable without material penalty or without more Company Subsidiaries (other than ninety (90Project Entities) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)have no recourse obligations.
(b) The Neither the Company nor any Company Subsidiary is, or as of the date of this Agreement, has received any notice that any other party is, in breach, default or violation or is unable to perform in material compliance with any respect (each a “Default”) under any Material Contract (and no event has occurred or not occurred through the terms and provisions of each Material Contract. The Company’s or any Company Subsidiary’s action or inaction or, and to the Knowledge of the Company, through the other party action or inaction of any third parties, which with notice or the lapse of time or both would constitute or give rise to a Default), except for those Defaults which would not be reasonably likely to have, individually or in the aggregate, a Company Material Adverse Effect. As of the date of this Agreement, neither the Company nor any Material Contract is not in breach or default under any of its terms. The Company Subsidiary has not received written notice of any breachthe termination of, default or notice of termination by any Person under intention to terminate, any Material Contract, except for such notices or terminations that would not be reasonably likely to have, individually or in the aggregate, a Company Material Adverse Effect. A trueNo Claims for indemnification under any purchase or sale Contract have been made by or against the Company or any Company Subsidiary since January 1, complete and correct copy of each written Material Contract has 2003 that have not been provided fully resolved prior to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) the date hereof and, to the Knowledge of the Company Disclosure ScheduleCompany, there are no such Claims threatened.
(c) Each Material As of the date of this Agreement, neither the Company nor any Company Subsidiary is party to any Contract is containing covenants that would limit in any material respect after the Effective Time the ability of Parent or any of its Subsidiaries (excluding, after the Effective Time, the Company or any Company Subsidiary) to (i) valid and binding on the Company party thereto engage in accordance with its respective terms and any line of business, (ii) compete with any person in full force any market or line of business or (iii) operate, manage, finance or develop properties in any geographic area or for any type of use (the types of limitations and effect. Each Material Contract rights described in clauses (or descriptioni) sets forth the entire agreement and understanding through (or complete description of the material terms, as applicableiii), between the Company“Exclusivity Arrangements”), on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. 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 than Exclusivity Arrangements that restrict activities in a termination thereof specific local market (as opposed to broader regional, state or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason national restrictions) that apply only to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, Development and the Company has not received any notice of termination or intent to terminate by any party to any Material ContractInvestment Activities.
(d) The Except as would not be reasonably likely to have a Company Material Adverse Effect, (i) no default has no Liability occurred with respect to any of the SPV Guarantees or, if applicable, any Contracts providing for construction or other loans, such that there would be recourse under such Contracts to the Company or any Company Subsidiary for the deferred purchase price Indebtedness or other payment obligation of propertyany other Person other than a Special Purpose Vehicle, goods and (ii) as of the date of this Agreement, no claim against the Company or services, whether connected or not any Company Subsidiary other than a Special Purpose Vehicle has been made in writing to the acquisition Company by the counterparties thereto under such SPV Guarantees or such Contracts. Except as would not be reasonably likely to have a Company Material Adverse Effect, (x) no default has occurred under any joint venture, limited liability company or partnership Contracts to the extent such Contracts are the governing documents of any business Special Purpose Vehicle such that there would be recourse under such Contracts to the Company or any Company Subsidiary other than a Special Purpose Vehicle, and, (earn-out y) as of the date of this Agreement, no claim against the Company or any Company Subsidiary other similar type of payments) or noncompetition agreementthan a Special Purpose Vehicle has been made in writing to the Company by the counterparties to such Contracts under such Contracts.
Appears in 2 contracts
Sources: Merger Agreement (Cb Richard Ellis Group Inc), Merger Agreement (Trammell Crow Co)
Material Contracts. (a) Section 4.10(a3.11(a) of the Company Disclosure Schedule sets forth a true, complete and correct accurate list of each of the following Contracts to which the Company or any of its Subsidiaries is a party or by which that fall within the Company is bound following categories and which have not been entirely fulfilled or performed existing as of the date hereof (such Contracts, collectively, the “Company Material Contracts”):
(i) all Contracts that contain restrictions with respect to payment any Contract for the purchase or sale of dividends or any other distribution in respect of the Membership Units services, equipment or other Equity assets (other than relating to Oil and Gas Properties) that either (1) provides for annual payments by the Company and/or its Subsidiaries of $300,000 or more; or (2) gives rise to anticipated receipts of more than $300,000 in any calendar year, in each case that cannot be terminated on not more than 90 days’ notice without payment by the CompanyCompany and/or its Subsidiaries of any material penalty;
(ii) any Contract that by its terms requires the payment by material partnership, joint venture or on behalf of the Company in excess of $100,000 per annum other similar agreement or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annumarrangement;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement Contract relating to the making acquisition or disposition of any such loanmaterial business (whether by merger, advance sale of stock, sale of assets or investment in excess of $25,000otherwise) pursuant to which the Company has material ongoing obligations entered into within the three years prior to the date hereof;
(iv) any Contract that as obligor or guarantor relating to Indebtedness (i) requires the Company to purchase in either case, whether incurred, assumed, guaranteed or secured by any product or service in excess of asset), except any such agreement with an aggregate outstanding principal amount not exceeding $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service300,000;
(v) any Contract containing any area of mutual interest, joint bidding area, joint acquisition area, or non-compete or similar type of provision that relates materially restricts the ability of the Company or any of the Company’s Subsidiaries to an acquisition (A) compete in any line of business or divestiture geographic area or with any Person during any period of time after the Closing or (B) make, sell or distribute any products or services, or use, transfer or distribute, or enforce any of their rights with respect to, any of their material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Companyproperties;
(vi) any Contract under which to sell, lease, farmout, exchange or otherwise dispose of all or any part of the Oil and Gas Properties of the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbranceand its Subsidiaries;
(vii) all Contracts under which any Person (each Contract for the sale, purchase, exchange or other than disposition of Hydrocarbons produced from the Company) has directly Oil and Gas Leases or indirectly guaranteed Indebtedness ▇▇▇▇▇ of the Company in excess of $50,000and its Subsidiaries;
(viii) each Contract that contains any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Persondrilling commitments;
(ix) all Contracts involving each Contract for any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development material Derivative Transaction of the Company or similar arrangementany of its Subsidiaries;
(x) all Contracts involving any resolution joint development agreement, exploration agreement, participation, farmout, farmin or settlement program agreement or similar Contract (or series of any actual or threatened Action under which related Contracts) requiring the Company has or any obligation Subsidiary to make expenditures that would reasonably be expected to be in excess of (x) $1,000,000 in any calendar year or Liability that will continue after (y) $2,000,000 during the Closing Dateterm thereof, other than customary joint operating agreements and continuous development obligations under Oil and Gas Leases;
(xi) any Contract limiting that provides for a “take-or-pay” clause or restraining any similar prepayment obligation, acreage dedication, minimum volume commitments or capacity reservation fees to a gathering, transportation or other arrangement downstream of the wellhead, that cover, guaranty or commit volumes in excess of 5,000 barrels of oil equivalent of Hydrocarbons of the Company or and its Subsidiaries per day over a period of one month (calculated on a yearly average basis) and for a term greater than 10 years, except for any successor thereto from engaging or competing in any manner, in any location or in any businessContracts that are terminable without penalty within 90 days;
(xii) all Affiliate Contractseach Contract that contains any standstill, “most favored nation” or most favored customer provision, preferential right or rights of first or last offer, negotiation or refusal or any similar requirement or right in favor of any third party, in each case other than those contained in (A) any agreement in which such provision is solely for the benefit of the Company or any of its Subsidiaries, (B) customary royalty pricing provisions in Oil and Gas Leases or (C) customary preferential rights in joint operating agreements or unit agreements affecting the business or the Oil and Gas Properties of the Company or any of its Subsidiaries;
(xiii) any Company IP Agreements as well as any each Contract under which the Company is a party providing for the license or group of or settlement with respect related Contracts reasonably expected to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other result in Transaction Expenses of more than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;$100,000; and
(xiv) any Contract concerning the acquisitionthat constitutes a seismic, dispositiondata or geophysical license, occupancy, management agreement or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material 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;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)permit.
(b) The Each Company is in material compliance with the terms and provisions of each Material Contract. The Company, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete a valid and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) binding agreement of the Company Disclosure Schedule.
(c) Each Material Contract or one of its Subsidiaries, and is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement , and understanding (or complete description none of the material terms, as applicable), between the Company, on one handany Subsidiary of the Company or, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No event Company’s knowledge, any other party is in default or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default breach under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes terms of any right or obligation or the loss of any benefit thereunder. The such Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contract, except for any such defaults or breaches which would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 2 contracts
Sources: Merger Agreement (Talos Energy Inc.), Merger Agreement (Talos Energy Inc.)
Material Contracts. (a) Section 4.10(a) of Except for this Agreement and the Contracts filed as exhibits to the Company Disclosure Schedule sets forth a trueSEC Reports filed with the SEC prior to the date of this Agreement, complete and correct list of each of the following Contracts to which the no Group Company is a party to, and no Group Company’s properties or by which assets are bound by, any of the Company is bound and which have not been entirely fulfilled or performed types of Contracts listed in clauses (i) through (xi) of this Section 3.15(a) (such Contracts, collectively, types of Contracts being the “Material Contracts”):
(i) all Contracts each Contract that contain restrictions with respect would be required to payment of dividends or any other distribution in respect be filed by the Company pursuant to Item 4 of the Membership Units or other Equity of Instructions to Exhibits to the Company’s most recently filed annual report on Form 20-F;
(ii) each Contract relating to any Contract that by its terms requires the payment by Indebtedness or on behalf of the Company Lien in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annumRMB30 million;
(iii) all Contracts each Contract in respect of any (A) joint venture, strategic cooperation or collaboration arrangement, joint sales or marketing agreement, or partnership arrangement, in each case, that is material to the business of the Group Companies taken as a whole, or (B) other agreement involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course sharing of Business) profits, losses, costs or advance to (other than travel and entertainment advances liabilities by any Group Company that is material to the employees business of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000Group Companies taken as a whole;
(iv) any each Contract that involves the acquisition or disposition, directly or indirectly (iby merger, license or otherwise), of any securities of any person (other than a Company Share Award) requires the Company to purchase or any product or service in excess of $100,000 from assets that have a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale fair market value or purchase price of any product or servicemore than RMB30 million;
(v) any each Contract that relates to an acquisition or divestiture with a Governmental Authority in excess of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the CompanyRMB30 million;
(vi) any each Contract under which the Company has any outstanding Indebtedness with a Major Customer or evidencing an Encumbrance on any property or asset Major Supplier in excess of the Company, other than a Permitted EncumbranceRMB30 million;
(vii) all Contracts under which any Person (other than the Company) has directly each Contract with a sales representative or indirectly guaranteed Indebtedness of distributor with expected aggregate annual payments by or to the Company or any of its Subsidiaries in excess of $50,000RMB30 million;
(viii) each Contract (including any bonds distribution agreements) that limits, or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect purports to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability of the any Group Company to compete in any line of business or with any Person or in any geographic area or during any period of time;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is time in a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract manner that is material to the operation of Group Companies, taken as a whole, or any Contract that grants any exclusive rights to any third party (including any exclusive license or exclusive distribution or usage arrangements) if such Contract, exclusive rights or restrictions resulting therefrom are material to the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a).Group Companies, taken as a whole;
(bix) The Company is each Contract in material compliance with the terms and provisions excess of each Material Contract. The Company, and to the Knowledge of the Company, the other party to RMB1,000,000 between any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Group Company, on the one hand, and any directors or officers of any Group Company or their immediate family members or shareholders (other than the other parties theretoChairman Parties) of any Group Company holding more than 5% of the voting securities of any Group Company, on the other hand, with respect to the subject matter thereof. No event under which there are material rights 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. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contract.outstanding;
(dx) The Company has no Liability each Contract providing for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or similar payment payable by any Group Company to any person (other than to another Group Company) in excess of RMB4 million;
(xi) each Contract involving payments by the Company or any of its Subsidiaries in excess of RMB30 million in the aggregate under each Contract;
(xii) each Contract relating to any capital expenditure or any disbursement Contract with a contract value exceeding RMB30 million;
(xiii) each share or stock redemption or purchase or other Contract affecting or relating to the 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;
(xiv) each Contract under which the Company or any of its Subsidiaries has granted any Person any registration rights, or any right of first refusal, first offer or first negotiation with respect to any Ordinary Shares or securities of any Subsidiaries of the Company; and
(xv) each Contract that contains a put, call or similar type right pursuant to which the Company or any of payments) its Subsidiaries could be required to purchase or noncompetition agreementsell, as applicable, any equity interests of any Person.
Appears in 2 contracts
Sources: Merger Agreement (Chuanwei Zhang), Merger Agreement (China Ming Yang Wind Power Group LTD)
Material Contracts. (a) Section 4.10(a) of Except for this Agreement, the Confidentiality Agreement and the Company Disclosure Schedule sets forth a truePlans, complete and correct list neither the Company nor any Subsidiary of each of the following Contracts to which the Company is a party to or bound by which the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):any Contract:
(i) all Contracts that contain restrictions with respect to payment which is a “material contract” (as such term is defined in Item 601(b)(10) of dividends or any other distribution in respect Regulation S-K of the Membership Units or other Equity of SEC) to the Company;
(ii) which constitutes a contract or commitment relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any Contract that by its terms requires the payment by or on behalf of the Company asset) in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum5,000,000;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) which purports to limit or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, restrict in any material respect, respect (A) the ability of the Company or its Subsidiaries to compete solicit customers or (B) the manner in any which, the line of business in which or with the localities in which, all or any Person or in any geographic area or during any period of time;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation portion of the business of the Company and not otherwise disclosed pursuant to its Subsidiaries, including, following consummation of the transactions contemplated by this Section 4.10(a).Agreement, Parent and its Subsidiaries, competes or would compete;
(biv) The Company is in material compliance with which would prohibit or materially delay the terms and provisions of each Material Contract. The Company, and to the Knowledge consummation of the CompanyOffer, the Merger or any of the other party transactions contemplated hereby or otherwise materially impair the ability of the Company to any Material Contract is not in breach perform its obligations hereunder;
(v) which would require the Company or default under any of its terms. The Company has not received notice Subsidiaries to purchase or procure goods and/or services of any breach, default more than $10,000,000 over the remaining term of such contract (“Supplier Long-Term Agreements”) or notice that is an agreement for the sale of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided goods to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding Company’s top ten customers based on revenue for the twelve-month period ending on the Company party thereto in accordance with its respective terms and Balance Sheet Date (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable“Customer Long-Term Agreements”), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. 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. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contract.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.;
Appears in 2 contracts
Sources: Merger Agreement (Precision Castparts Corp), Merger Agreement (Titanium Metals Corp)
Material Contracts. Except pursuant to an acquisition permitted by Section 4.1(d) or to employment or compensation arrangements with directors and officers, the Company shall not, and shall not permit any of its Subsidiaries to, enter into or amend or modify in any manner materially adverse to the Company and its Subsidiaries taken as a whole (ai) Section 4.10(aany contract or agreement (A) described in clause (i) and clause (ii) of the definition of “Company Disclosure Schedule sets forth a trueContract”, complete and correct list of each (B) containing actual or contingent obligations of the following Contracts Company or its Subsidiaries secured by a lien (other than Permitted Encumbrances) in excess of $15.0 million (except as otherwise permitted by Section 4.1(l)) (C) pursuant to which the Company is a party or by which the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):
(i) all Contracts that contain restrictions with respect to payment of dividends or any other distribution in respect of the Membership Units its Subsidiaries is burdened from continuing indemnification, “earn out” or other Equity of the Company;
(ii) any Contract contingent payment obligations that by its terms requires the payment by or on behalf of the Company in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value each case would reasonably be expected to result in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum;
5.0 million (iiiprovided, that nothing in this clause (i)(C) all Contracts involving a loan (other than accounts receivable owing from trade debtors shall prohibit entering into customer agreements and supply agreements in the Ordinary Course ordinary course of Businessbusiness consistent with past practice) or advance to (other than travel and entertainment advances to D) under which the employees Company or any Subsidiary of the Company extended in is the Ordinary Course of Business)landlord, tenant, subtenant or occupant with respect to real property that has an aggregate value, or investment in, any Person involves payment by or to the Company or any agreement relating to the making of any such loan, advance or investment in excess its Subsidiaries of more than $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party 25.0 million or (ii) requires any supply or sales agreement that the Company deal exclusively with a third party in connection with the sale has an aggregate value, or purchase of any product involves payment by or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging of its Subsidiaries of more than $75.0 million on an annual basis or competing in any mannerthat has an aggregate value, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which involves payment by or to the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material 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;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a).
(b) The Company is in material compliance with the terms and provisions of each Material Contract. The Company, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice Subsidiaries of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) more than $150.0 million for the duration of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material termsagreement, as applicableexcept for renewal(s), between the Companymade following reasonable advance notice to Parent, on one hand, and the other parties thereto, substantially similar terms of existing contracts or replacements of existing contracts with new counterparties on the other hand, with respect substantially similar terms to the subject matter thereof. 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. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contractexisting contract being replaced.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 2 contracts
Sources: Merger Agreement (Hexion Specialty Chemicals, Inc.), Merger Agreement (Huntsman International LLC)
Material Contracts. (a) Except as set forth on Section 4.10(a) 3.16 of the Company Disclosure Schedule sets forth a trueSchedule, complete and correct list of each of the following Contracts to which neither the Company nor any of its Subsidiaries is a party or by which the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):
to any: (i) all Contracts that contain restrictions collective bargaining agreement or contract with respect to payment of dividends or any other distribution in respect of the Membership Units or other Equity of the Company;
labor union; (ii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan; (iii) stock purchase, stock option, stock appreciation or similar plan; (iv) contract for the employment of any Contract that officer, individual employee or other person on a full-time or consulting basis involving an annual compensation commitment by its terms requires the payment by or on behalf of the Company or a Subsidiary in excess of $100,000 per annum 200,000; (v) agreement or indenture relating to the delivery by the Company borrowing of goods or services with a fair market value money in excess of $100,000 per annum 1,000,000 or provides to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien (as defined herein)) on any material portion of the Company's assets; (vi) guaranty of any obligation for the Company to receive payments borrowed money in excess of $100,000 per annum;
1,000,000; (iiivii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) lease or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business)agreement under which it is lessee of, or investment inholds or operates any personal property owned by any other party, any Person for which the annual rental exceeds $250,000, (viii) contract or any agreement relating to group of related contracts with the making same party for the purchase of any inventories, supplies or services, under which the undelivered balance of such loaninventories, advance supplies or investment services has a selling price in excess of $25,000;
1,000,000; (ivix) any Contract that (i) requires contract or group of related contracts with the Company to purchase any product same party for the sale of products or service services under which the undelivered balance of such products or services has a sales price in excess of $100,000 1,000,000; (x) agreement pertaining to Intellectual Property (as hereinafter defined) including, license agreements or similar arrangements; or (xi) contract which prohibits or materially limits the Company or a Subsidiary in any material respect from a third party freely engaging in business in the United States or anywhere else in the world (all such contracts and agreements, "Material Contracts"). The Company has provided or made available to ICS (i) true and complete copies of all written Material Contracts, or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) such Material Contracts that have not been reduced to writing, a written description thereof, each of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement which is listed on Section 3.16 of any actual or threatened Action under which the Disclosure Schedule. Neither the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material 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;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a).
(b) The Company is in material compliance with the terms and provisions of each Material Contract. The Company, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under nor any of its terms. The Company Subsidiaries is, or has not received any notice of or has any breachknowledge that any other party is, in default or notice of termination by in any Person respect under any such Material Contract. A true, complete and correct copy of each written except for those defaults which would not reasonably be likely, either individually or in the aggregate, to have a Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, Adverse Effect with respect to the subject matter thereof. No Company; and there has not occurred any event or circumstance has occurred that, with notice or the lapse of time or the giving of notice or both, would constitute an event such a material default. For purposes of default under any Material Contract this Agreement, "Permitted Liens" shall mean (i) Liens for Taxes (other than those pursuant to Section 412 of the Code) or result governmental assessments, charges or claims, the payment of which is not yet due, or for Taxes, the validity of which are being contested in a termination thereof good faith by appropriate proceedings; (ii) statutory Liens incurred in the ordinary course of business for sums not yet due or would cause being contested in good faith; (iii) Liens relating to deposits made in the ordinary course of business; and (iv) Liens which do not individually or permit in the acceleration aggregate materially interfere with or other changes materially impair the conduct of any right or obligation the Business as it is currently being conducted, or the loss value, marketability, use or ownership of any benefit thereunder. The Company has no reason the asset to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contractwhich it attaches.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 2 contracts
Sources: Merger Agreement (Integrated Circuit Systems Inc), Merger Agreement (Microclock Inc)
Material Contracts. (a) Section 4.10(a) 4.16 of the Company Seller Disclosure Schedule Letter sets forth a true, correct and complete and correct list of each of the following Contracts contracts and other agreements (including any amendments thereto), other than any Affiliate Contract, in effect on the date of this Agreement to which the any Subject Company is a party or by which is primarily associated with the Retail Business and to which the Company Seller or any of its Affiliates (other than any Subject Company) is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):a party:
(i) all any Contracts and other agreements that contain restrictions covenants prohibiting or limiting the right to compete of any Subject Company or prohibiting or restricting the ability of any Subject Company to deal with respect to payment of dividends any Person or in any other distribution in respect of geographical area and that will be binding on the Membership Units or other Equity of Subject Companies following the CompanyClosing;
(ii) any Contracts and other agreements relating to partnerships, limited liability company agreements, joint ventures or other similar arrangements;
(iii) any Contracts and other agreements that include any obligation to make payments, contingent or otherwise, arising out of the prior acquisition or disposition of a business;
(iv) any Contracts and other agreements for the acquisition, sale, lease or disposition of any site leases or equipment capital assets that require payment of or delivery of assets valued at $1,000,000 individually (or in the aggregate, in the case of any related series of contracts and other agreements);
(v) any Contracts that are collective bargaining agreements;
(vi) any Contracts that are settlement, conciliation or similar agreements with any Governmental Authority and pursuant to which outstanding obligations must be satisfied by any of the Subject Companies after the execution date of this Agreement, or any such agreements with one or more private parties pursuant to which the Subject Companies will be required after the execution date of this Agreement to pay consideration in excess of $175,000;
(vii) any (x) Contract with the Texas General Land Office (the “GLO”) for the sale of electric power, (y) any Contract for the sale of electric power to any commercial and industrial customer (other than any Contract with the GLO) which is within the top 75% (by forecasted volume March 1, 2009 forward) of Contracts with commercial and industrial customers (other than the GLO) as of three days prior to the date of this Agreement or (z) any master agreement for ERCOT supply (including natural gas, renewable energy credits and other commodity hedging); provided, however that identifying information with respect to certain commercial and industrial customers and certain counterparties subject to confidentiality restrictions has been redacted and is not provided in Section 4.16 of the Seller Disclosure Letter;
(viii) any Contracts under which a Subject Company has created, incurred, assumed or guaranteed any outstanding indebtedness for borrowed money, any capitalized lease obligation or any other indebtedness, or under which such Subject Company has imposed a security interest or Encumbrance (other than a Permitted Encumbrance) on any of its assets, tangible or intangible;
(ix) any outstanding agreements of guaranty or surety by a Subject Company, or by the Seller or any of the Seller’s Affiliates (other than a Subject Company) for the benefit of a Subject Company;
(x) any Contract with the Seller or any of the Seller’s Affiliates relating to the future provisions of goods or services related to the Retail Business and which requires any future payment in excess of $1,000,000 in the aggregate during any twelve (12) month period;
(xi) any employment Contract providing annual compensation in excess of $150,000;
(xii) any consulting Contract providing annual compensation in excess of $250,000;
(xiii) any Contract under which a Subject Company has advanced or loaned any amount to any of its terms requires directors, officers and employees outside the ordinary course of business; and
(xiv) any Contracts with any employee that require payment or increased obligations to such employee by or on behalf of the Company in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company Subject Companies to receive payments in excess of $100,000 per annum;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the any employees of the Company extended in Subject Companies as a result of the Ordinary Course of Business), transactions contemplated by this Agreement or investment in, any Person which impose severance or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual termination payment obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Subject Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor or, with respect to any obligation (fixed or contingent) Continuing Employee or, to the Knowledge of another Person;
(ix) all Contracts involving the Seller, any joint ventureformer employee of the Subject Companies whose employment was primarily sales related, partnership, strategic alliance, shareholders’ agreement, cowhich contain non-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement competition restrictions in favor of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Subject Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material 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;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a).
(b) The Neither the Seller nor any Subject Company has received written notice of any material default on the part of any Subject Company under any contract or other agreement referred to in Section 4.16(a). No Subject Company is in material compliance with the terms and provisions of each Material Contract. The Company, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has such contract or other agreement, except for any such breach or default which would not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided reasonably be expected to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. 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 Subject Company liability that is material to the acceleration or Subject Companies, taken as a whole. To the Knowledge of the Seller, as of the date of this Agreement, no other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contract.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out such contract or other similar type of payments) agreement is in breach or noncompetition agreementdefault, in either case, in any material respect thereunder.
Appears in 2 contracts
Sources: LLC Membership Interest Purchase Agreement (NRG Energy, Inc.), LLC Membership Interest Purchase Agreement (Reliant Energy Inc)
Material Contracts. (a) Except for this Agreement, the Company Benefit Plans set forth on Section 4.10(a3.9(a) of the Company Disclosure Schedule sets and the agreements filed as exhibits to the Company SEC Documents and except as set forth a true, complete and correct list of each on Section 3.20 of the following Contracts to which Company Disclosure Schedule, as of the date of this Agreement, neither the Company nor any of its Subsidiaries is a party to or by which the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):by:
(i) all Contracts that contain restrictions with respect to payment any “material contract” (as such term is defined in Item 601(b)(10) of dividends or any other distribution in respect Regulation S-K of the Membership Units or other Equity of the CompanySEC);
(ii) any Contract that by its terms requires (A) imposes any express restriction on the payment by right or on behalf ability of the Company in excess or any of $100,000 per annum its Subsidiaries to compete with any other person or acquire or dispose of the delivery by securities of another person (other than any agreement related to a Company Takeover Proposal or that contains provisions prohibiting such disclosure), (B) contains an exclusivity or “most favored nation” clause that restricts the business of the Company or any of goods or services with its Subsidiaries in a fair market value material manner, other than those contained in excess of $100,000 per annum or provides for the Company Oil and Gas Leases, or (C) contains any minimum volume commitment to receive which the Company reasonably expects that the Company and its Subsidiaries will be required to make annual payments in excess of $100,000 per annum5 million or for longer than one year;
(iii) all Contracts involving a loan (any mortgage, note, debenture, indenture, security agreement, guaranty, pledge or other than accounts receivable owing from trade debtors in the Ordinary Course agreement or instrument evidencing indebtedness for borrowed money or any guarantee of Business) or advance to (other than travel and entertainment advances to the employees such indebtedness of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment its Subsidiaries in an amount in excess of $25,00030 million, except for any transactions among the Company and its wholly owned Subsidiaries or among the Company’s wholly owned Subsidiaries;
(iv) any Contract that provides for the acquisition, disposition, license, use, distribution or outsourcing of assets, services, rights or properties (iother than Company Oil and Gas Interests) requires with respect to which the Company reasonably expects that the Company and its Subsidiaries will be required to purchase any product or service make annual payments in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service30 million;
(v) any Contract that relates to an acquisition joint venture, partnership or divestiture of material assets that contains covenants, indemnities limited liability company agreement or other contractual obligations that could impose a Liability that is material similar Contract relating to the formation, creation, operation, management or control of any joint venture, partnership or limited liability company, other than (A) any such Contract solely between the Company and its Subsidiaries or among the Company’s Subsidiaries and (B) any customary joint operating agreements, unit agreements or participation agreements affecting the Company Oil and Gas Interests;
(vi) any Contract under which that obligates the Company has or any outstanding Indebtedness of its Subsidiaries to make any loans, advances or evidencing an Encumbrance on capital contributions to, or investments in, any property or asset person other than (A) advances for expenses required under customary joint operating agreements, unit agreements, participation agreements and customary advances to operators of the CompanyCompany Oil and Gas Interests not covered by a joint operating agreement, other unit agreement or participation agreement, (B) any loan or capital contribution to, or investment in, the Company or one of its wholly owned Subsidiaries or (C) loans or advances to an officer, director or employee of the Company or any of its Subsidiaries that is less than a Permitted Encumbrance$100,000 individually to such person and $500,000 in the aggregate;
(vii) all Contracts under which any Person (other than contract that provides for the Company) has directly or indirectly guaranteed Indebtedness of sale by the Company or any of its Subsidiaries of Hydrocarbons (A)(1) in excess of 7,500 barrels of oil equivalent of Hydrocarbons per day over a period of one month (calculated on a yearly average basis) or (2) for a remaining term greater than ten years or (B) which the Company reasonably expects that it will make aggregate payments in excess of $50,0005 million in any of the next three succeeding fiscal years or $10 million over the life of the contract that, in the case of (A) and (B), has a remaining term of greater than 91 days and does not allow the Company or such Subsidiary to terminate it without penalty to the Company or such Subsidiary within 91 days;
(viii) any bonds or Contracts of Guarantee in agreement pursuant to which the Company acts as a surety or guarantor any of its Subsidiaries has paid amounts associated with any Production Burden in excess of $5 million during the immediately preceding fiscal year or with respect to which the Company reasonably expects that it will make payments associated with any obligation (fixed or contingent) Production Burden in any of another Personthe next three succeeding fiscal years that could, based on current projections, exceed $5 million per year;
(ix) all Contracts involving any agreement which is a joint venture, partnership, strategic alliance, shareholders’ development agreement, co-marketing, co-promotion, joint development exploration agreement or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such acreage dedication agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material 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;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate in respect of each of the Companyforegoing, for an amount in excess of $100,000, individually customary joint operating agreements) that either (in the case of a lease, per annumA) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of Company and its Subsidiaries, taken as a whole, or (B) would reasonably be expected to require the Company and not otherwise disclosed pursuant its Subsidiaries to this Section 4.10(a).make expenditures in excess of $15 million in the aggregate during the 12-month period following the date hereof;
(bx) The any acquisition Contract that contains “earn out” or other contingent payment obligations (other than asset retirement obligations and plugging and abandonment obligations or customary indemnification obligations), that would reasonably be expected to result in payments in respect of such “earn out” or payment obligations after the date hereof by the Company is in material compliance with the terms and provisions of each Material Contract. The Company, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Subsidiaries in excess of $15 million; and
(xi) each contract for lease of personal property or real property (other than the Company has Oil and Gas Interests) involving payments in excess of $15 million in any calendar year or aggregate payments in excess of $60 million that are not received notice of terminable without penalty or other liability to the Company (other than any breach, default or notice of termination ongoing obligation pursuant to such contract that is not caused by any Person under any Material Contract. A truesuch termination) within 60 days, complete and correct copy of each written Material Contract has been provided other than contracts related to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Scheduledrilling rigs.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. 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. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contract.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 2 contracts
Sources: Merger Agreement (Carrizo Oil & Gas Inc), Merger Agreement (Callon Petroleum Co)
Material Contracts. (a) Section 4.10(aExcept as set forth on Schedule 3.7(a) of the Company Disclosure Schedule sets forth Schedule, as of the date of this Agreement, no Seller Party is a trueparty to or bound by, complete and correct list of each the Acquired Assets are not subject to, any of the following Contracts (in each case below, to which the Company extent that the same relates primarily to, or is a party or by which otherwise necessary to the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectivelyoperation of the Business, the “Material Contracts”Acquired Assets or the Assumed Liabilities):
(i) all any Contracts that contain restrictions for the purchase or sale of Inventory entered into in the ordinary course of business, which either individually or in conjunction with respect Contracts with the same party, and in connection with the same matter, relate to commitments in excess of $25,000 per annum (including any agreements requiring the payment of dividends or any other distribution in respect of the Membership Units royalties, milestones, minimum purchase payments or other Equity guarantees made by or on behalf of the Company);
(ii) any Contract that by its terms requires the payment by or on behalf of the Company in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making purchase, lease or similar arrangement of any such loanmachinery, advance equipment, furniture, fixture or investment similar property having a value in excess of $25,000;
(iviii) any Contract that Contracts with (iA) requires the Company to purchase any product director, officer, employee or service Affiliate of any Seller Party involving payments in excess of $100,000 from a third party 5,000 per annum (or the equivalent amount in another currency), or (iiB) requires that to the Company deal exclusively with a third party in connection with Knowledge of the sale Seller Parties, any Affiliate or purchase family member of any product of the foregoing involving payments in excess of $5,000 per annum;
(iv) any agreement with any independent contractor or servicesimilar Contract that (x) involves the payment or receipt of more than $25,000 per annum and (y) is not terminable within thirty (30) days’ notice or less without penalty, liability or premium;
(v) any Contract that relates currently effective collective bargaining or union agreements with respect to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Companyits employees;
(vi) any Contract under agreement (A) restricting any Seller Party from engaging, participating, or competing with any other Person, in any line of business, market or geographic area, or to make use of any Intellectual Property Rights; (B) granting most favored nation pricing, exclusive sales, distribution, marketing or other exclusive rights, rights of first refusal or rights of first negotiation to any other Person; (C) otherwise limiting the right of any Seller Party to make, use, sell, offer for sale, import, or distribute any Acquired Technology or services related thereto; or (D) any agreement pursuant to which any Seller Party has granted exclusive rights with respect to the Company has Acquired Technology, including any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted EncumbranceIntellectual Property Rights;
(vii) all Contracts under which any Person (agreement of guarantee, credit support, assumption or endorsement of, any indebtedness for borrowed money of other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000Persons;
(viii) any bonds line of credit, standby financing, revolving credit or Contracts other similar financing arrangement of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Personsort that is secured by any Acquired Assets;
(ix) all Contracts involving any agreement relating to any joint ventureventure or partnership arrangement between any Seller Party, partnershipon the one hand, strategic allianceand a third party, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangementon the other hand;
(x) all Contracts involving any resolution leases for real property or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Datepersonal property;
(xi) any Contract limiting distributorship, customer sales or restraining the Company leasing Contracts under which any Seller Party is currently providing or any successor thereto from engaging receiving products or competing in any manner, in any location or in any business;services and involving more than $25,000 per annum; and
(xii) all Affiliate Contractsany Contract of indemnification or warranty, other than (A) under a Seller Party’s unmodified forms of standard customer/distribution agreements, the forms of which have been made available to the Purchaser or its counsel, or (B) warranties implied by Law;
(xiii) any Company IP Agreements as well as Contract pursuant to which any Contract under which Seller Party has acquired or divested a business or entity, or all or substantially all of the Company is assets of a party providing for the business or entity, whether by way of merger, consolidation, purchase of stock, purchase or sale of assets, license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licenseeotherwise;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of with any Real Property owned, leased or used by the CompanyGovernmental Entity;
(xv) all collective bargaining agreements any confidentiality, secrecy or non-disclosure Contract in effect other than (A) any such Contract entered into with customers or distributors in the ordinary course of business pursuant to a Seller Party’s standard unmodified form (a copy of which has been made available to the Purchaser or its counsel) and (B) any such Contract entered into in connection with a possible disposition by the CompanyCompany of the Business, the terms of which prohibit the applicable Seller Party from disclosing the existence of such Contract, the parties thereto and/or the provisions thereof;
(xvi) any Contract providing that agreement pursuant to which rights of any third party are triggered or become exercisable, or under which any other consequence, result or effect arises, in connection with or as a result of the Company indemnify execution of this Agreement or the consummation of the transactions contemplated hereunder, either alone or in combination with any Person in an amount that other event, which trigger or exercise of rights, consequence, result or effect would be material materially impair the ability of the Purchaser to consummate the Company, other than any such agreement entered into in transactions hereunder or operate the Ordinary Course of Business;Business after Closing; and
(xvii) any Contracts related to research or development with any Governmental Authority respect to which the Company is a party;
(xviiiAcquired Technology. The agreements, documents and instruments set forth on Schedule 3.7(a) any Contracts that limit, in any material 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;
(xix) all (i) employment agreements (excluding, for certainty, any employees who Disclosure Schedule are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a).
(b) The Company is in material compliance collectively with the terms and provisions of each KNE Contracts referred to herein as “Material ContractContracts”. The Company, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is Except as otherwise set forth in Section 4.10(aSchedule 3.7(a) of the Company Disclosure Schedule, true, complete and correct copies of each document or instrument constituting a Material Contract in its complete, current and up-to-date version and true, complete and correct written description of the material terms of any non-written Contract listed on Schedule 3.7(a) of the Company Disclosure Schedule (Material Contracts) have been made available to the Purchaser by virtue of having been posted on the electronic data room.
(b) Except as set forth on Schedule 3.7(b) of the Company Disclosure Schedule, all of the Material Contracts are valid, binding in accordance with their respective terms, in full force and effect, and enforceable against (i) the Seller Party or KNE (as applicable) which are a party thereto, and (ii) to the Knowledge of the Seller Parties and KNE, each third party which is party thereto, in accordance with their respective terms, except, in each case, to the extent that enforceability may be limited by applicable bankruptcy, reorganization, insolvency, moratorium or other Laws affecting the enforcement of creditors’ rights generally and by general principles of equity, regardless of whether such enforceability is considered in a proceeding at law or in equity.
(c) Each Material Contract is (iExcept as set forth on Schedule 3.7(c) valid and binding on of the Company party thereto Disclosure Schedule, neither any Seller Party nor KNE is in accordance with its respective terms and (ii) default under or in full force and effectbreach or violation of any Material Contract. Each Material Contract (or description) sets forth To the entire agreement and understanding (or complete description Knowledge of the material termsSeller Parties, as applicable), between the Company, on one hand, and the no other parties thereto, on the other hand, with respect to the subject matter thereof. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of party is in default under any Material Contract or result in a termination thereof breach or would cause or permit the acceleration or other changes violation of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contract.
(d) The agreements, documents and instruments set forth on Schedule 3.7(d) of the Company has no Liability for Disclosure Schedule are referred to herein as the deferred purchase price of property“KNE Contracts”. Other than the KNE Contracts, goods or services, whether connected or KNE is not a party to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreementContract.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Spectranetics Corp), Asset Purchase Agreement (Kensey Nash Corp)
Material Contracts. Other than (ai) Section 4.10(aReal Property Leases, (ii) Company Plans, (iii) Contracts listed on Schedule 4.16(a) and 4.16(b) and (iv) Intellectual Property Licenses, Schedule 4.11(a) lists, as of the Company Disclosure Schedule sets forth a truedate hereof, complete and correct list of each all of the following Contracts executory contracts to which the Company is a party or by which its assets are bound (the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “"Material Contracts”"):
(i1) all individual Contracts that contain restrictions with customers with respect to payment which the Company billed more than $100,000 during 1999;
(2) any individual Contract which is an exclusive dealing, requirements or take or pay agreement involving expenditures in excess of dividends $50,000 during 1998;
(3) Contracts not listed or required to be listed pursuant to Section 4.11(a)(2) which provide for aggregate future annual payments by the Company of more than $100,000, except for purchase orders or sales orders arising in the ordinary and usual course of business, in which case they are listed only if any party thereto is obligated to make payments pursuant thereto aggregating more than $200,000;
(4) Contracts which establish a partnership, joint venture, material agency or other distribution similar arrangement;
(5) any Contract which relates to indebtedness for borrowed money in respect excess of $50,000 or the deferred purchase price of property (whether incurred, assumed, guaranteed or secured by any asset);
(6) any Contract which provides for future payments that are conditioned on or result from, in whole or in part, a change of control of the Membership Units Company or other Equity a change of management of the Company;
(ii7) any Contract that by its terms requires the payment by which relates to marketing, sales or on behalf of the Company in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or advertising and provides for the Company to receive aggregate future payments in excess of more than $100,000 per annum100,000;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) 8) any Contract under which the Company has guaranteed the obligations of any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the CompanyPerson, other than a Permitted Encumbrance;
(vii) all Contracts under which agreed to indemnify any Person (other than in the Company) has directly ordinary course of business), or indirectly guaranteed Indebtedness of the Company in excess of $50,000agreed to share Tax liability with any Person;
(viii9) any bonds or Contracts of Guarantee in Contract which relates to the acquisition by the Company acts as a surety of any of the capital stock or guarantor with respect to any obligation (fixed or contingent) substantially all of the assets of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi10) any Contract limiting or restraining which restricts the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability right of the Company to compete in any line of business or way with any other Person, or which contains covenants pursuant to which any non-natural Person has agreed not to compete, or otherwise restricts a non-natural Person's ability to engage freely, in any geographic area or during any period part of timethe Company Business;
(xix11) all (i) employment agreements (excluding, any Contract not disclosed herein or not otherwise required to be disclosed pursuant to this Schedule 4.11 which provides for certainty, any employees who are employed at will) annual payments in excess of $100,000 which extends more than a year from the date hereof and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which is not cancelable by the Company is a party and on 30 days' written notice without penalty;
(12) any Contract which are not cancellable without material penalty provides for the sale or without more lease after the date hereof of any of the assets of the Company other than ninety (90) days’ noticein the ordinary course of business; and
(xx13) any Contract which binds the Company to purchase, lease make payments to any director or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate former director of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a).
(b) The Company is in material compliance with the terms and provisions of each Material Contract. The Company, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. 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. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contract.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 2 contracts
Sources: Purchase Agreement (Insilco Holding Co), Purchase Agreement (Insilco Corp/De/)
Material Contracts. (a) Section 4.10(a5.13(a) of the Company Arch Disclosure Schedule Letter sets forth a true, correct and complete and correct list as of each the date hereof of all of the following types of Contracts used or held for use primarily in or related primarily to the operation or conduct of the Arch Business that are to be transferred to and assumed by the JV Entities as of the Closing Date and to which the Company Arch or any of its Affiliates is a party or by to which any of the Company is bound and which have not been entirely fulfilled Arch Contributed Assets or performed the Arch Transferred Subsidiaries are subject, in each case other than any Excluded Assets (such Contractseach, collectively, the an “Arch Material ContractsContract”):
(i) all Contracts that contain restrictions with respect to payment of dividends or any other distribution in respect of the Membership Units loan and credit agreement, Contract, note, debenture, bond, indenture, mortgage, security agreement, pledge or other Equity of the Companysimilar agreement pursuant to which any material Indebtedness for borrowed money is outstanding or may be incurred;
(ii) any Contract that by its terms requires (other than any coal supply agreement, or purchase order or commitment to sell or offer to sell coal) with a remaining term of more than one year from the date hereof which is expected to involve the payment by or on behalf of the Company an amount in excess of $100,000 per annum 10,000,000 or the delivery by the Company receipt of goods or services with a fair market value an amount in excess of $100,000 per annum or provides for 10,000,000 in the Company to receive payments in excess aggregate over the remaining term of $100,000 per annumsuch Contract;
(iii) all Contracts any joint venture, partnership or similar organizational Contract involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course sharing of Business) profits or advance losses related to (other than travel and entertainment advances to the employees all or any portion of the Company extended in the Ordinary Course of Arch Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company granting to any Person an option, right of first offer or right of first refusal to purchase or acquire any product or service in excess of $100,000 from a third party or Arch Contributed Asset (ii) requires that the Company deal exclusively with a third party in connection with the sale or other than purchase of any product or serviceoptions for additional coal volumes);
(v) any Contract that relates (A) provides for exclusive rights for the benefit of any third party, (B) grants “most favored nation” status to an acquisition any third party or divestiture (C) requires Arch or any of material assets that contains covenantsits Affiliates to provide any minimum level of service, indemnities in each case which (1) are, or other contractual obligations that could impose in a Liability that is manner which is, material to the CompanyArch Business taken as a whole and (2) may not be terminated (including such restrictive provisions) by Arch or its Affiliates on less than 90 days’ notice without payment by Arch or any of its Affiliates of any material penalty;
(vi) any Contract under which that restricts in any material respect the Company has ability of Arch or its Affiliates (or could restrict in any outstanding Indebtedness or evidencing an Encumbrance on any property or asset material respect the ability of the Company, other JV Entities) to compete in any business or with any Person in any geographical area and which may not be terminated (including such restrictive provisions) by Arch or its Affiliates on less than a Permitted Encumbrance90 days’ notice without payment by Arch or any of its Affiliates of any material penalty;
(vii) any Contract with a remaining term of more than one year from the date hereof that could require the JV Entities to purchase all Contracts under (or a specified portion of) their total requirements of any product or service from a third party or that contains “take or pay” provisions and which any Person (other than A) is expected to involve the Company) has directly or indirectly guaranteed Indebtedness payment of the Company an amount in excess of $50,00010,000,000 in the aggregate during the fiscal year ending December 31, 2019 or any future fiscal year and (B) may not be terminated (including such restrictive provisions) by Arch or its Affiliates on less than 90 days’ notice without payment by Arch or any of its Affiliates of any material penalty;
(viii) any bonds Contract relating to the disposition or Contracts acquisition by Arch or any of Guarantee its Affiliates of any material business or any material amounts of assets (other than in which the Company acts as a surety ordinary course of business) with obligations remaining to be performed or guarantor with respect to any obligation (fixed or contingent) of another PersonLiabilities continuing after the date hereof;
(ix) all Contracts involving any joint venturelease or agreement (including capital lease arrangements) under which Arch or any of its Affiliates is lessee of, partnershipor holds or operates, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangementany Tangible Personal Property for which the annual rental costs exceed $10,000,000;
(x) all Contracts involving any resolution coal supply agreement, or settlement purchase order or commitment to sell or offer to sell coal, (A) with a remaining term of more than three years from the date hereof or (B) with remaining deliverable tonnage of (1) 10,000,000 tons from any actual mines located in Wyoming that are set forth on Schedule 1.1(a) or threatened Action under which the Company has (2) 1,500,000 tons from any obligation or Liability mines located in Colorado that will continue after the Closing Dateare set forth on Schedule 1.1(a);
(xi) any Contract limiting involving swaps, futures, derivatives or restraining similar instruments, regardless of value, except such Contracts entered into as a hedging activity in the Company or any successor thereto from engaging or competing in any manner, in any location or in any businessordinary course of business consistent with Arch’s past practice and internal policy guidelines;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under pursuant to which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which is providing tax abatements or other similar economic incentives in connection with the Company is a party;
(xviii) any Contracts that limit, in any material 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;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ noticeArch Business; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxixiii) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)Arch Business.
(b) The Company is Arch and its Affiliates have duly performed and complied in all material compliance respects with the terms and provisions of their respective obligations under each Arch Material Contract. The Company, and to the Knowledge None of the Company, the other party to any Material Contract is not in breach Arch or default under any of its terms. The Company Affiliates has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. 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. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by default from any other party to any such Arch Material Contract. To the Knowledge of Arch, no other party to such Arch Material Contract is in default of its obligations thereunder.
(c) Except as set forth on Section 5.13(c) of the Arch Disclosure Letter, Arch has made available to Peabody true and complete copies of each Arch Material Contract.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 2 contracts
Sources: Implementation Agreement (Arch Coal Inc), Implementation Agreement (Peabody Energy Corp)
Material Contracts. (a) Section 4.10(a) Except for this Agreement and the Contracts filed as exhibits to the Company Reports, as of the date hereof, none of the Company Disclosure Schedule sets forth a true, complete and correct list of each of the following Contracts to which the Company or its Subsidiaries is a party to or by which the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):by:
(i) all Contracts any Contract that contain restrictions with respect is required to payment of dividends or any other distribution in respect be filed by the Company pursuant to Item 4 of the Membership Units or other Equity Instructions to Exhibits of Form 20-F under the CompanyExchange Act;
(ii) any Contract that by its terms requires involving the payment by or on behalf receipt of the Company in excess of $100,000 per annum or the delivery amounts by the Company or any of goods its Subsidiaries, or services with a fair market value relating to indebtedness for borrowed money or any financial guarantee, of more than US$3,500,000 in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annumany calendar year on its face;
(iii) all Contracts involving any Contract that contains a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) put, call or advance similar right pursuant to (other than travel and entertainment advances to the employees of which the Company extended in the Ordinary Course or any of Business)its Subsidiaries could be required to purchase or sell, or investment inas applicable, any equity interests of any Person or any agreement relating to the making assets that have a fair market value or purchase price of any such loan, advance or investment in excess of $25,000more than US$100,000;
(iv) any Contract that (i) requires relating to the Company to purchase any product formation, creation, operation, management or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase control of any product or servicejoint venture;
(v) any Contract that relates between the Company or any of its Subsidiaries and any director or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to an acquisition be disclosed pursuant to Item 7B or divestiture Item 19 of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to Form 20-F under the Company;Exchange Act; and
(vi) any non-competition Contract under which or other Contract that limits or purports to limit in any material respect the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset type of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee business in which the Company acts as a surety or guarantor with respect to any obligation (fixed its Subsidiaries may engage, the type of goods or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under services which the Company has or its Subsidiaries may manufacture, produce, import, export, offer for sale, sell or distribute or the manner or locations in which any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing of them may so engage in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability of the Company to compete in any line of business or with any Person or use their assets. Each such Contract described in any geographic area or during any period of time;
(xix) all clauses (i) employment agreements through (excluding, for certainty, any employees who are employed at willvi) and (ii) Contracts with independent contractors or consultants (or similar arrangements) above is referred to which the Company is herein as a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)“Material Contract”.
(b) The Except as would not have, individually or in the aggregate, a Material Adverse Effect, (i) each of the Material Contracts is valid and binding on the Company or its Subsidiaries, as the case may be, and, to the Knowledge of the Company, each other party thereto, and is in material compliance with full force and effect, subject to the terms Bankruptcy and provisions Equity Exception and (ii) there is no breach or default under any Material Contract by the Company or any of each Material Contract. The Company, its Subsidiaries and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No no event or circumstance has occurred that, that with notice or the lapse of time or both, the giving of notice or both would constitute an event of a breach or 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. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and by the Company has not received or any notice of termination or intent to terminate by any party to any Material Contractits Subsidiaries.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 2 contracts
Sources: Merger Agreement (New Horizon Capital Iii, L.P.), Merger Agreement (Exceed Co Ltd.)
Material Contracts. (a) Section 4.10(a) Schedule 5.14 sets forth a correct list as of the date hereof of all of the Contracts of the following types to which any of the Company Disclosure Schedule sets forth a true, complete and correct list of each of the following Contracts to which the Company Entities is a party or by which any of the Company Entities or their respective properties or assets is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):receives a benefit under:
(ia) all Contracts that contain restrictions providing for a merger, consolidation, acquisition or sale of all or a material (to the Company Entities, taken as a whole) portion of the assets of, or other extraordinary transaction in respect of, any Company Entity with respect or to payment of dividends any other Person, or any other distribution material capital investment in respect of the Membership Units any Person, in each case entered into since January 1, 2017 or pursuant to which any Company Entity has any ongoing indemnification or other Equity of the Companysimilar surviving obligations;
(iib) any Contract that by its terms requires (other than purchase orders or sales orders) entered into with a customer or supplier which involves the payment by or on behalf receipt of the Company an amount in excess of Five Million Dollars ($100,000 5,000,000) per annum or the delivery (measured by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for trailing (12) month period ending on the Company to receive payments in excess of $100,000 per annumInterim Balance Sheet Date) and which cannot be terminated within ninety (90) days;
(iiic) all Contracts involving for the purchase of materials, supplies, goods, services, equipment or other assets, which is with a loan Material Supplier (other than accounts receivable owing from trade debtors in purchase orders);
(d) for the Ordinary Course sale or license by a Company Entity of Business) materials, supplies, goods, services, equipment or advance to other assets, which is with a Material Customer (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Businesssales orders), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(ive) any Contract that (i1) requires the a Company Entity to purchase its total requirements of any product or service in excess of $100,000 from a third party or that contains “take or pay” provisions, (ii2) requires contains a “most-favored-nation” clause or similar term that provides preferential pricing or treatment to any third party, (3) contains any non-competition or non-solicitation covenant by a Company Entity in favor of another Person or otherwise limits the freedom of a Company deal exclusively with Entity to engage in any line of business in any area or (4) grants any Person an option or a third party in connection with the sale first refusal, first offer or similar preferential right to purchase or acquire any assets of any product or serviceCompany Entity;
(vf) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Companywith a Governmental Authority;
(vig) that is between a Company Entity, on the one hand, and any Related Party or EIS, on the other hand (each, an “Affiliate Agreement”);
(h) any credit agreement, loan agreement or indenture relating to Indebtedness of a Company Entity;
(i) any Contract under which the Company has Entities have permitted any outstanding Indebtedness or evidencing an Encumbrance on any property or material asset of the Company, to become encumbered by a Lien (other than a Permitted EncumbranceLien);
(viij) all Contracts under which any Person (other than the Company) has that provides for, directly or indirectly guaranteed Indebtedness indirectly, the establishment or operation or a partnership or joint venture, or otherwise involves a sharing of profits, losses, costs or liabilities with any Person;
(k) pursuant to which a Company Entity effected any compromise or settlement of any Proceeding since the Interim Balance Sheet Date;
(l) the primary purposes of which is the indemnification of any other Person by a Company Entity;
(m) that provides for a retention, severance, change in control or sale bonus payment in excess of One Hundred Thousand Dollars ($100,000) (or would provide for such bonus subject to the satisfaction of any conditions or contingencies) and any Company Retention Bonus Agreements;
(n) (A) that is a written Contract for the employment of any Employee located outside of the Company United States (i) with annual base salary and target annual cash bonus in excess of $50,000150,000; (ii) that is not terminable at will or upon notice of sixty (60) days or less for a cost (exclusive of costs arising prior to termination) of less than $200,000; or (iii) that would result in any payments to such person upon consummation or solely as a result of the Merger; (B) that is a written Contract for the employment of any Employee located in the United States (x) with an annual base salary in excess of $150,000; (y) that is not terminable at will; or (z) that would result in any payments to such individual upon the consummation or as a result of the Merger (either alone or in combination with another event);
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xio) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the a license to a Company Entity of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Company Licensed Intellectual Property (other than licenses of commercially available software Software licensed under a click-wrap or shrink-wrap license or subscription agreement, in each case, on a non-exclusive basis and hardware) and any Intellectual Property license agreements under which having an annual license, subscription or maintenance fee of $250,000 or less in the Company is currently a licenseeaggregate);
(xivp) any Contract concerning lease or agreement under which a Company Entity is lessee of, or holds or operates any personal property owned by any other party, for which the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Companyannual rent exceeds $250,000;
(xvq) all collective bargaining agreements entered into by pursuant to which a Company Entity has made or may make a capital investment in, loan to, acquisition or divestiture of the Company;Equity Interests or assets of, any Person, or the acquisition or divestiture of any business or third Person; and
(xvir) any Contract providing that the for a license by a Company indemnify any Person in an amount that would be material Entity of Company Owned Intellectual Property to the Company, a third party (other than any such agreement entered into non-exclusive licenses granted to a Company Entity’s, resellers and end-user customers in connection with the sale, distribution or use of a Company Entity’s products and services in the Ordinary Course ordinary course of Business;
business). The Company has provided to Purchaser a true and complete copy (xviior, with respect to any oral Contract, a written summary of the material terms and conditions of such oral Contract) any Contracts of each Contract set forth or required to be set forth on Schedule 5.14 (including all amendments, modifications, exhibits and schedules) (collectively with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respectReal Property Leases, the ability of the Company to compete “Material Contracts”). Each Material Contract is in any line of business or with any Person or in any geographic area or during any period of time;
(xix) all (i) employment agreements (excludingfull force and effect and constitutes a legal, for certaintyvalid, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case binding obligation of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a).
(b) The Company is in material compliance with the terms and provisions of each Material Contract. The CompanyEntity, and to the Knowledge of the Company’s Knowledge, the other party or parties thereto, enforceable against such Company Entity, and to any Material Contract is not in breach the Company’s Knowledge, such other party or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto parties in accordance with its respective terms terms, subject to the Enforceability Limitations. The Company Entities have performed or complied with all material covenants and (ii) in full force obligations under each Material Contract, and effect. Each neither the Company Entities nor, to the Company’s Knowledge, any other party to a Material Contract (is in, or description) sets forth the entire agreement and understanding (is alleged to be in, material breach of or complete description of the material termsdefault under such Material Contract, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No nor has there occurred an event or circumstance has occurred that, condition that with notice or lapse the passage of time or giving of notice (or both, ) would constitute an event of such a material breach or default under by a Company Entity or to the Company’s Knowledge, any other party to such Material Contract. No party to a Material Contract has provided notice to a Company Entity that it plans to terminate any Material Contract or, if in writing (or result in a termination thereof or would cause or permit to the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill Company’s Knowledge, oral), materially reduce its obligations thereunder in all material respects, and business with the Company has not received any notice of termination or intent to terminate by any party to any Material ContractEntities.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 2 contracts
Sources: Merger Agreement (Zurn Water Solutions Corp), Merger Agreement (Zurn Water Solutions Corp)
Material Contracts. (a) Section 4.10(aSchedules 2.17(a)(i) through (xxv) of the Company Disclosure Schedule sets Letter set forth a true, complete and correct list of each of the following Contracts to which the Company or its Subsidiary is a party or by which that are in effect on the Company is bound and which have not been entirely fulfilled or performed Agreement Date (such Contracts, collectively, the “Material Contracts”):
(i) all Contracts that contain restrictions any Contract with respect to payment of dividends a (A) Significant Customer/Distributor or any other distribution in respect of the Membership Units or other Equity of the Company(B) Significant Supplier;
(ii) any Contract that by its terms requires the payment providing for payments by or on behalf of to the Company or its Subsidiary (or under which the Company or its Subsidiary has made or received such payments) in excess an aggregate annual amount of $100,000 per annum 250,000 or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annummore;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) any dealer, distributor, referral or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business)similar agreement, or investment inany Contract providing for the grant of rights to reproduce, license, market, refer or sell its products or services to any other Person or any agreement relating to the making advertising or promotion of the Business or pursuant to which any such loan, advance or investment in excess of $25,000third-parties advertise on any websites operated by the Company;
(iv) (A) any joint venture Contract, (B) any Contract that involves a sharing of revenues, profits, cash flows, expenses or losses with other Persons and (iC) requires any Contract that involves the payment by the Company or its Subsidiary of royalties to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or serviceother Person;
(v) any Contract that relates to an acquisition (i) separation agreement, (ii) severance agreement or divestiture (iii) other Contract, in each case of material assets that contains covenants(i), indemnities (ii) and (iii), providing for the payment of compensation or benefits upon or in connection with this Agreement (other contractual obligations that could impose a Liability that is material to than the CompanyEmployment Agreements, payments made under the Management Carve-out Plan or under this Agreement) with any current or former Employees or Contingent Workers under which the Company or its Subsidiary has any actual or potential Liability;
(vi) any Contract under which for or relating to the employment or service of any director, officer, or Company has Shareholder of more than 5% of the total shares of Company Shares or any outstanding Indebtedness or evidencing an Encumbrance on other type of Contract with any property or asset of the Company’s or the Company’s Subsidiary’s officers, other or Company Shareholder of more than a Permitted Encumbrance5% of the total shares of Company Shares, as the case may be;
(vii) all Contracts under any Contract (A) pursuant to which any Person (other than the Company) has directly party is granted exclusive rights or indirectly guaranteed Indebtedness “most favored party” rights of any type or scope with respect to any of the Company Products, Company Intellectual Property or Company Data; (B) that limits or would limit the freedom of the Company or its Subsidiary or any of their respective successors or assigns or their respective Affiliates to (I) engage or participate with any other Person, in excess any line of $50,000business, market or geographic area with respect to the Company Products or the Company Intellectual Property, or to grant by the Company or its Subsidiary of exclusive rights or licenses or (II) sell, distribute or manufacture any products or services or to purchase or otherwise obtain any software, components, parts or services; or (C) containing any “take or pay,” minimum commitments or similar provisions;
(viii) any bonds standstill or Contracts similar agreement containing provisions prohibiting a third party from purchasing Equity Interests of Guarantee in which the Company acts as a surety or guarantor with respect its Subsidiary or, in each case, the assets of the Company or its Subsidiary or otherwise seeking to any obligation (fixed influence or contingent) of another Personexercise control over the Company or its Subsidiary;
(ix) other than Contracts for Off-the-Shelf Software, all licenses, sublicenses and other Contracts involving to which the Company or its Subsidiary is a party and pursuant to which the Company or its Subsidiary acquired or is authorized to use any joint venture, partnership, strategic alliance, shareholders’ agreement, coThird-marketing, co-promotion, joint development or similar arrangementParty Intellectual Property;
(x) all Contracts involving any resolution license, sublicense or settlement of any actual or threatened Action under other Contract to which the Company or its Subsidiary is a party and pursuant to which any Person is authorized to use any Company-Owned Intellectual Property, other than any Contract entered into in substantial conformance with the Company’s or its Subsidiary’s standard form of agreement, a copy of which has any obligation or Liability that will continue after the Closing Datebeen provided to Acquirer;
(xi) any license, sublicense or other Contract limiting or restraining pursuant to which the Company or its Subsidiary has agreed to any successor thereto from engaging restriction on the right of the Company or competing its Subsidiary to use or enforce any Company-Owned Intellectual Property rights or pursuant to which the Company or its Subsidiary agrees to encumber, transfer or sell rights in or with respect to any manner, in any location or in any businessCompany-Owned Intellectual Property rights;
(xii) all Affiliate Contractsany Contracts relating to the membership of, or participation by, the Company or its Subsidiary in, or the affiliation of the Company or its Subsidiary with, any industry standards group or association;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license development of any software, technology or settlement with respect to any Intellectual Property includingRights, without limitationindependently or jointly, either by or for the Company or its Subsidiary (other than employee invention assignment agreements and consulting agreements with Authors on the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under or its Subsidiary’s standard form of agreement, copies of which the Company is currently a licenseehave been provided to Acquirer);
(xiv) any confidentiality, secrecy or non-disclosure Contract concerning the acquisition, disposition, occupancy, management or operation of other than any Real Property owned, leased or used such Contract entered into by the CompanyCompany or its Subsidiary in the ordinary course of business consistent with past practice;
(xv) all collective bargaining agreements entered into by any Contract to license or authorize any third party to manufacture, reproduce or license any of the CompanyCompany Products or Company Intellectual Property;
(xvi) any Contract providing that the Company indemnify settlement agreement with respect to any Person in an amount that would be material to the Company, other than any such agreement Legal Proceeding entered into in since the Ordinary Course of BusinessCourt Approval Date, including any threatened Legal Proceeding threatened;
(xvii) any Contracts Contract pursuant to which rights of any third party are triggered or become exercisable, or under which any other consequence, result or effect arises, in connection with or as a result of the execution of this Agreement or the consummation of the Share Purchase or the other Transactions, either alone or in combination with any Governmental Authority to which the Company is a partyother event;
(xviii) any Contracts that limitContract or plan (including any stock option, in merger and/or stock bonus plan) relating to the sale, issuance, grant, exercise, award, purchase, repurchase or redemption of any material respect, the ability shares of Company Shares or any other securities of the Company or its Subsidiary or, in each case, any options, warrants, convertible notes or other rights to compete in purchase or otherwise acquire any line such shares of business stock, other securities or with any Person options, warrants or in any geographic area other rights therefor, except for the repurchase rights disclosed on Schedule 2.2(a) or during any period Schedule 2.2(c) of timethe Company Disclosure Letter, other than the Company Option Plan and Contracts providing for Equity Interests thereunder;
(xix) all (i) employment agreements (excluding, for certainty, any Contract with any labor union or other labor organization or any collective bargaining agreement or similar Contract with its Employees or other person purporting to act as exclusive bargaining representative of any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; andContingent Workers;
(xx) any trust indenture, mortgage, promissory note, loan agreement or other Contract to purchasefor the borrowing of money, lease any currency exchange, commodities or otherwise acquire the right to own, use other hedging arrangement or lease any property or assets, including such Contracts entered into by an Affiliate leasing transaction of the Company, for an amount type required to be capitalized in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); andaccordance with GAAP;
(xxi) any Contract of guarantee, surety, support, indemnification (other than pursuant to its standard end user agreements), assumption or endorsement of, or any similar commitment with respect to, the Liabilities or indebtedness of any other Person;
(xxii) any Contract that is material for capital expenditures in excess of $250,000 in the aggregate on an annual basis;
(xxiii) any Contract pursuant to the operation of the business of which the Company and not otherwise disclosed or its Subsidiary is a lessor or lessee of any real property or any machinery, equipment, motor vehicles, office furniture, fixtures or other personal property;
(xxiv) any Contract pursuant to this Section 4.10(awhich the Company or its Subsidiary has acquired a business or entity, or assets of a business or entity, whether by way of merger, consolidation, purchase of stock, purchase of assets, license or otherwise, or any Contract pursuant to which it has any material ownership interest in any other Person; and
(xxv) any Contract with any Governmental Entity, any Company Authorization, or any Contract with a government prime contractor or higher-tier government subcontractor (in their capacity as such), including any indefinite delivery/indefinite quantity contract, firm-fixed-price contract, schedule contract, blanket purchase agreement, or task or delivery order (each a “Government Contract”).
(b) The All Material Contracts are in written form. Each of the Company and its Subsidiary has performed all of the material obligations required to be performed by it and is entitled to all benefits under, and is not alleged to be in material compliance with the terms and provisions of each Material Contract. The Companydefault in respect of, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) Each of the Company Disclosure Schedule.
(c) Each Material Contract Contracts is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect, subject only to the effect, if any, of applicable bankruptcy and other similar Applicable Law affecting the rights of creditors generally and rules of law governing specific performance, injunctive relief and other equitable remedies. Each Material Contract (There exists no material default or description) sets forth the entire agreement and understanding (event of default or complete description of the material termsevent, as applicable)occurrence, between the Company, on one hand, and the other parties thereto, on the other handcondition or act, with respect to either the subject matter thereof. No event Company or circumstance has occurred its Subsidiary or to the knowledge of the Company, with respect to any other contracting party, that, with notice or the giving of notice, the lapse of time or boththe happening of any other event or condition, would constitute an reasonably be expected to (i) become a material default or event of default under any Material Contract or result (ii) give any third party (A) the right to declare a material default or exercise any remedy under any Material Contract, (B) the right to a rebate, chargeback, refund, credit, penalty or change in a termination thereof delivery schedule under any Material Contract, (C) the right to accelerate the maturity or would cause or permit the acceleration or other changes performance of any right obligation of the Company or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to its Subsidiary under any Material Contract will not fulfill its obligations thereunder in all material respectsor (D) the right to cancel, and terminate or modify any Material Contract. Neither the Company nor its Subsidiary has not received any notice of termination or intent other communication regarding any actual or possible violation or breach of, default under, or intention to terminate by any party to cancel or modify any Material Contract.
(d) The . Neither the Company nor its Subsidiary has no any Liability for the deferred purchase price renegotiation of propertyGovernment Contracts. True, goods or services, whether connected or not correct and complete copies of all Material Contracts have been provided to Acquirer at least three (3) Business Days prior to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreementAgreement Date.
Appears in 1 contract
Material Contracts. (a) Section 4.10(a) of the Company Disclosure Schedule sets forth 3.6 contains a true, correct and complete and correct list of each of the following Contracts pursuant to which the any Company is a party has any rights or by which the Company is bound and which have not been entirely fulfilled benefits or performed undertakes any obligations or liabilities (such Contracts, collectivelycollectively with all Leases, the “Material Contracts”):), true and correct copies of which Material Contracts have been made available to the Purchaser:
(ia) all Contracts other than Leases that have a duration of more than two (2) years remaining and are not terminable without penalty upon ninety (90) days or less prior written notice by any party;
(b) all Contracts that require or could reasonably be expected to require any party thereto to pay $100,000 or more in any twelve (12) month period, or $500,000 or more in the aggregate;
(c) all employment (other than Europhil Standard Employment Letters and Dolex Envíos Standard Employment Letters), termination, collective bargaining, retention, change in control, compensation and bonus Contracts and plans, and all Contracts and plans providing for stock options or stock purchases, stock appreciation rights, pensions, severance payments (other than GPN Plans), deferred or incentive compensation, retirement payments or profit sharing, or other similar employee benefits with any current or (to the extent any Company has ongoing obligations under such Contracts) former employee, officer, director, shareholder or consultant of any Company;
(d) all Contracts that contain restrictions with respect any restrictive covenant or confidentiality agreement (other than agreements relating solely to payment of dividends information about a customer’s business or any other distribution in respect of services provided to the Membership Units or other Equity of customer by the Company);
(iie) any Contract that all notes, bonds, indentures and other instruments and agreements evidencing, creating or otherwise relating to obligations for Company Indebtedness and guarantees by its terms requires the payment by or on behalf of the Company in excess of $100,000 per annum or the delivery by the a Company of goods or services with a fair market value in excess obligations of $100,000 per annum or provides for the any Person other than another Company to receive payments in excess of $100,000 per annum;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course guarantees by way of Business) endorsement or advance to (other than travel and entertainment advances to the employees of the Company extended negotiable instruments in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(ivf) all Contracts for capital expenditures under which any Contract that (i) requires the Company to purchase any product or service has remaining obligations in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or serviceeach;
(vg) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect obligated to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement agreements entered into in the Ordinary Course of Business;
(xviih) Contracts to loan money or extend credit to any other Person;
(i) Contracts constituting Affiliate Agreements;
(j) Contracts with banks or other Persons or financial institutions to which any Company transmits money for customers or uses for deposits other than customary Contracts entered into when opening or modifying accounts in the Ordinary Course of Business;
(k) Contracts with any Governmental Authority to which Correspondent (the Company is a party“Correspondent Contracts”);
(xviiil) Contracts relating to the provision of any Contracts that limit, in any material respect, other services by a Company not relating to the ability transmission 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;money; or
(xixm) all Contracts as to armored cars and coin and currency counting or pick-up. Except as set forth in Schedule 3.6, (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate all of the CompanyMaterial Contracts are in full force and effect, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a).
(b) The no Company is in material compliance with the terms and provisions of each Material Contract. The CompanyDefault under, and to the Knowledge of any Seller, no event has occurred which, with the passage of time or giving of notice or both, could reasonably be expected to result in any Company being in material Default under, any of the terms of the Material Contracts or could reasonably be expected to cause the acceleration of any material obligation of any Company, give rise to any right or termination or cancellation by any party other than the Companies, nor do the Sellers have Knowledge of, and no Company has received notice of, or made a written claim with respect to, any Default by any other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breachthereto, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description none of the material terms, as applicable), between Material Contracts requires the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. 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 consent of any right or obligation or other party thereto in connection with the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate transactions contemplated by any party to any Material Contractthis Agreement.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Sources: Securities Purchase Agreement (Global Payments Inc)
Material Contracts. (a) Section 4.10(a) 3.12 of the Company Seller Disclosure Schedule sets forth a true, complete and correct list of each of the following lists all Contracts described in clauses (i) through (xvii) below to which the Company or RIAP is a party or by which the Company is otherwise bound and which have not not, as of the date hereof, been entirely fulfilled terminated or fully performed ("MATERIAL CONTRACTS"). A true, correct and complete copy of each such Contracts, collectively, the “Material Contracts”):Contract has been made available to Buyer:
(i) all any Contracts that contain restrictions with respect to payment providing for a commitment of dividends employment or consultation services requiring payments in any other distribution one year in respect excess of the Membership Units or other Equity of the Company$100,000;
(ii) any Contract that by its terms requires Contracts with any Person containing any provision or covenant prohibiting or materially limiting the payment by or on behalf ability of the Company or RIAP to engage in excess any business activity or compete with any Person other than by reason of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annumconfidentiality;
(iii) all any Contracts involving a loan relating to any Indebtedness of the Company or RIAP or under which any Lien (other than accounts receivable owing from trade debtors in the Ordinary Course of BusinessPermitted Liens) or advance to (other than travel and entertainment advances to the employees has been imposed on any asset of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000RIAP;
(iv) any Contract that Contracts providing for (i) requires the Company to purchase future disposition or acquisition of any product assets or service properties of the Wireless Manufacturing Business, other than dispositions or acquisitions in excess the ordinary course of $100,000 from a third party or business, and (ii) requires that the Company deal exclusively with a third party in connection with the sale any merger or purchase of any product or serviceother business combination;
(v) any Contract that relates to an acquisition Employee Plans for the benefit of any of the directors, officers or divestiture employees of material assets that contains covenantsthe Company or RIAP including, indemnities but not limited to, any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, pension, retirement, executed compensation, severance or other contractual obligations that could impose plan or arrangement (other than option plans maintained by RIG LP, a Liability that is material to Delaware limited partnership, for the Companybenefit of certain employees of the Company and RIAP);
(vi) any Contract under which the Company or RIAP has any outstanding Indebtedness loaned or evidencing an Encumbrance on any property advanced or asset of the Companyis committed to advance or loan money to its Affiliates, other than a Permitted Encumbrancedirectors, officers or employees;
(vii) all Contracts under which any Person (other than the Company) has directly Contract between or indirectly guaranteed Indebtedness of among the Company in excess and any of $50,000its Affiliates;
(viii) any bonds Contract for the lease of personal property to or Contracts from any Person which provides for lease payments in excess of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person$100,000 per year;
(ix) all Contracts involving any joint ventureContract (other than this Agreement) that limits or contains restrictions on the ability of the Company or RIAP to incur or suffer to exist any Lien (other than in respect of the Company's or RIAP's rights under such Contract), partnershipto purchase or sell any assets, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development to change the lines of business in which it participates or similar arrangementengages or to engage in any merger or other business combination;
(x) all any other Contracts involving any resolution or settlement (excluding warranty obligations of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or RIAP) that (A) involve the payment, pursuant to the terms of any successor thereto from engaging or competing in any mannersuch Contract, in any location or in any business;
(xii1) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which by the Company is a party providing for the license or RIAP of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material 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;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a).
(b) The Company is in material compliance with the terms and provisions of each Material Contract. The Company, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. 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. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contract.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.50,000 annually or
Appears in 1 contract
Material Contracts. (a) Other than Contracts related to employee benefits, which are provided for in Section 4.10(a) of the 3.13, Lease Agreements, Company Disclosure Leases and Real Estate Contracts, which are provided for in Section 3.15, and Contracts related to Intellectual Property or IT Assets, which are provided for in Section 3.16, Schedule 3.17 sets forth a true, complete true and correct list of each of the following (i) all Assigned Contracts or Contracts to which the any Company is a party that (A) involve the sale or purchase of goods or tangible assets and are reasonably likely to involve the payment or receipt of more than $500,000 per year, and (B) involve the sale or purchase of services or intangible assets and are reasonably likely to involve the payment or receipt of more than $250,000 per year; (ii) all partnership, joint venture or similar Contracts that are Assigned Contracts or to which a Company is party, in each case that involve the ownership or operation of any business with any other Person; (iii) all Assigned Contracts and any Contract to which a Company is party, in each case with a term of more than one year that cannot be cancelled by such Asset Seller or Company on less than 90 days’ notice without premium or penalty that are reasonably likely to involve the payment or receipt of more than $500,000 per year; (iv) all Contracts obligating any Company to loan any amounts to or make any investment or capital contribution in any Person; (v) all Contracts relating to the borrowing of money by any Company or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the Purchased Assets or on any portion of the assets of a Company; (vi) any guaranty of any Company of any obligation for borrowed money, letter of credit or other guaranty of an obligation in excess of $50,000, or in the aggregate in excess of $250,000; (vii) except for Contracts for the employment of Persons employed by the Chihuahua Sub, the Monclova Sub or the Saltillo Sub, the execution of which are required by the Laws of Mexico, all Contracts for the employment of any officer, individual employee or other Person with a Company on a full-time or consulting basis or, with respect to the Asset Sellers, with a Business Employee; (viii) all Contracts that contain any provision or covenant that prohibit or limit the ability of an Asset Seller or Company from engaging in any line of business, to compete with any Person or to carry on or expand the scope of the Business (or with respect to a Company, any business) in any geographic area; (ix) all Contracts that contain any provision or covenant that would, upon Closing, prohibit or materially limit the ability of Purchaser or any of its Affiliates to engage in any business activity or compete with any Person or prohibit or materially limit the ability of any Person to compete with Purchaser or any of its Affiliates; (x) all Contracts under which a Company or, with respect to or in connection with the Business, an Asset Seller is the lessee of, or holds or operates any personal property owned by any other Person, for which the annual rental exceeds $100,000; (xi) all Contracts under which an a Company or, with respect to or in connection with the Business, an Asset Seller is the lessor of, or permits any Person to hold or operate any property, real or personal, for which the annual rental exceeds $100,000; (xii) all Contracts relating to the Business or to which a Company is bound party with, or bids or proposals of the Business or a Company to, a Governmental Authority; (xiii) all Contracts providing for “earn-outs,” “performance guarantees” or other similar contingent payments by a Company; (xiv) all Contracts relating to the Business or with a Company that grant material exclusivity rights or “most favored nations” status to the counterparty thereof; (xv) all support agreements, insurance, surety bonds or other similar Contracts relating to the Business or with a Company; (xvi) all powers of attorney relating to the Business or granted by a Company; (xvii) all Contracts for the acquisition of all or any portion of a Person or all or substantially all of its assets or the disposition of any material assets of a Company, other than Contracts in which the applicable acquisition or disposition has been consummated and there are no obligations ongoing; (xviii) all Contracts with any foreign sales agent, foreign sales representative and any other third party involved in interacting with a Governmental Authority on behalf of an Asset Seller or Company; and (xix) all other Contracts to which have not been entirely fulfilled any Asset Seller or performed any of its Affiliates (including the Companies) is a party and that is material to, and otherwise necessary for, the continued operation of the Business (such Contracts, collectivelytogether with the Contracts related to employee benefits, Lease Agreements, Company Leases, Real Estate Contracts and Contracts related to Intellectual Property or IT Assets, the “Material Contracts”):
(i) all Contracts that contain restrictions with respect to payment of dividends or any other distribution in respect of the Membership Units or other Equity of the Company;
(ii) any Contract that by its terms requires the payment by or on behalf of the Company in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material 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;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a).
(b) The Company is in material compliance with the terms Seller has delivered or made available to Purchaser a correct and provisions complete copy of each Material Contract, together with all amendments and supplements thereto. The CompanyNotwithstanding any provision of this Section 3.17, Seller, the Asset Sellers and Companies will not be required to provide copies of Material Contracts and other documents and data to any person to whom such access would be in violation of any Export Control Laws.
(i) Each Material Contract is in full force and effect and is valid, binding and enforceable against the Asset Seller or the Affiliate (including the Companies) of the applicable Asset Seller that is party thereto and, to the Knowledge of the CompanySeller, against the other party parties thereto in accordance with its terms, subject to the General Enforceability Exceptions, (ii) none of the Asset Sellers, any of its Affiliates (including any Company), or, to Seller’s Knowledge, any other Person is in material breach or violation of, or default under, any Material Contract, (iii) none of the Asset Sellers or any of its Affiliates (including any Company) has received any written notice of a default under or breach of any Material Contract; (iv) each of the Asset Sellers and its Affiliates (including Company) have performed all material obligations required to be performed by it under each Material Contract. None of the Asset Sellers or any of its Affiliates (including any Company) (A) has received any written notice of termination, cancellation or non-renewal with respect to any Material Contract is not in breach Contract, or default under (B) has waived or released any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person material rights under any Material Contract. A trueTo the Knowledge of Seller, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) none of the Company Disclosure Schedule.
counterparties to the Material Contracts (c1) Each plans to terminate, cancel or not renew such Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms Contract, and (ii2) in full force and effect. Each Material Contract (no event or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one handdevelopment has occurred, and the other parties theretono fact, on the other handcircumstance or condition exists, that (with respect to the subject matter thereof. No event or circumstance has occurred that, with without notice or lapse of time or both) could reasonably be expected to give any Person the right to receive or require a material rebate, would constitute an event of default chargeback, penalty or change in delivery schedule under any Material Contract or result in a termination thereof cancel, terminate or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to modify any Material Contract. None of the Asset Sellers or any of its Affiliates (including any Company) has made any misrepresentations or inaccurate certifications in connection with any bid or proposal to any Governmental Authority.
(d) The Company has Contracts referenced as numbers 4, 5, 6, 7 and 8 on Schedule 1.01-5(b) (the “Intercompany Contracts”) contain terms, conditions, pricing and agreements no Liability for less favorable to Seller than those terms, conditions, pricing and agreements contained in or otherwise governing the deferred purchase price previous supply arrangements between the Business and the Seller’s other Affiliates that the Intercompany Contracts replaced as of propertythe date hereof, goods or servicesprovided that Seller may, whether connected or with the consent of Purchaser, not to be unreasonably withheld, amend the acquisition of any business (earn-out or other similar type of paymentsIntercompany Contracts between the date hereof and Closing to the extent necessary for this Section 3.17(d) or noncompetition agreementto be true.
Appears in 1 contract
Material Contracts. (aSchedule 4.1(r) Section 4.10(a) of set forth the Company Disclosure Schedule sets forth a true, complete and correct list of each of the following Contracts to which the Company any Seller is a party with respect to the Acquired Business or by which any of them or their assets may be bound in connection with the Company is bound and which have not been entirely fulfilled or performed Acquired Business (each such ContractsContract required to be disclosed in Schedule 4.1(r), collectivelyincluding each such Contract entered into after the date of this Agreement, the a “Material ContractsContract”):
(i) all Contracts any Contract (other than purchase orders with suppliers or customers entered into in the Ordinary Course of Business) that contain restrictions with respect Sellers reasonably anticipate will involve aggregate payments by or to payment Sellers of dividends or any other distribution in respect of the Membership Units or other Equity of the Companymore than $50,000;
(ii) any Contract that by its terms requires the payment by or on behalf of the Company in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company lease of real or personal property in which the amount of payments which the Acquired Business is required to receive make, or is entitled to receive, on an annual basis exceeds $50,000;
(iii) any material distribution, franchise, license, sales, commission, consulting agency or advertising Contract which (A) involves annual payments in excess of $100,000 per annum50,000 or (B) is not cancellable on thirty (30) calendar days’ notice without payment or penalty;
(iiiiv) all Contracts involving a loan any Contract relating to or instrument evidencing, any Assumed Liabilities;
(v) any Contract entered into during the last five (5) years (or under which there are continuing material obligations) relating to the sale or disposition of material assets (other than accounts receivable owing from trade debtors in the Ordinary Course sale of Business) inventory or advance to (other than travel and entertainment advances to the employees of the Company extended obsolete or worn-out assets or assets replaced in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any license agreement or other Contract under which relating to Intellectual Property that is necessary or otherwise material to the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset operation of the Company, other than a Permitted EncumbranceAcquired Business;
(vii) all Contracts under which any Person joint venture Contract, partnership agreement, or limited liability company agreement or other Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any Seller with any other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000Person;
(viii) any bonds Contract providing for capital expenditures after the date hereof in an amount in excess of $100,000 individually or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Personaggregate;
(ix) all Contracts involving any joint venturewritten warranty, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development guaranty or other similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement undertaking with respect to contractual performance extended by any Intellectual Property including, without limitation, the Company’s Intellectual Property (Seller other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xviix) any Contracts written employment or collective bargaining agreement or Contract with any Governmental Authority labor union or any labor organization applicable to which the Company is a party;
(xviii) any Contracts that limitemployees, in any material respect, the ability of the Company to compete in any line of business or Contract with any Person director, officer, employee or in any geographic area or during any period of time;
consultant, other than those (xix1) all (i) employment agreements (excluding, for certainty, any employees who that are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which terminable at-will by the Company is a party and which are not cancellable without material penalty or without applicable Seller on no more than ninety thirty (9030) days’ notice; and
(xx) any Contract to purchase, lease notice without liability or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a).
(b) The Company is in material compliance with the terms and provisions of each Material Contract. The Company, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. 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 financial obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contract.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.or
Appears in 1 contract
Sources: Asset Purchase Agreement
Material Contracts. (a) Section 4.10(a) of Excluding Contracts for which neither the Company Disclosure nor any of its Assets will be bound or have liability after Closing, Schedule 4.15(a) sets forth a true, complete and correct list of each of the following Contracts to which the Company is a party or by which any of its Assets are bound as of the Company is bound Execution Date (the Contracts listed on Schedule 4.15(a) and which have not been entirely fulfilled or performed (such Contracts, any other Contracts that meet the descriptions in this Section 4.15(a) being collectively, the “Material Contracts”):
(i) all Contracts any Contract for the future purchase, exchange, sale, gathering, compression, collection, storage, processing, treating, dehydration or transportation of Hydrocarbons or the provision of services related thereto that contain restrictions with respect to payment results in gross revenues or gross expenditures in excess of dividends or any other distribution in respect of the Membership Units or other Equity of the Company$500,000;
(ii) other than Contracts of the nature addressed by Section 4.15(a)(i), any Contract (A) for the future sale of any Asset, (B) that by its terms requires grants a right or option to purchase, lease or otherwise acquire in the payment by future any Asset, or on behalf of (C) for the Company in excess of $100,000 per annum or the delivery by the Company supply of goods or services by the Company, other than in each case any Contract with a fair market purchase or similar price or remaining value in excess of less than $100,000 per annum or provides 500,000;
(iii) other than Contracts of the nature addressed by Section 4.15(a)(i), any Contract for the Company to receive receipt of any Assets or services requiring future payments in excess of $100,000 per annum;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000500,000;
(iv) any Contract that (i) requires the Company to purchase any product constitutes a pipeline interconnect or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or servicefacility operating agreement;
(v) any Contract for lease of equipment involving aggregate payments in excess of $500,000 in any calendar year that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Companyare not terminable without penalty within 60 days;
(vi) any Contract under which the Company has any outstanding Indebtedness for expenditures or evidencing an Encumbrance on any property or asset other approved capital commitments in excess of the Company, other than a Permitted Encumbrance$500,000;
(vii) all Contracts under which any Person (Contract for lease of personal or real property, other than the Company) has directly or indirectly guaranteed Indebtedness of the with respect to Company Real Property, involving aggregate payments in excess of $50,000500,000 in any calendar year that are not terminable without penalty within 60 days;
(viii) any bonds or Contracts outstanding agreement of Guarantee in which guaranty by the Company acts as a surety or guarantor with respect to in favor of any obligation (fixed or contingent) Person in an amount in excess of another Person$500,000;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development Contract with Contributor or similar arrangementany Affiliate of Contributor;
(x) all any outstanding futures, swap, collar, put, call, floor, cap, option or other Contracts involving any resolution that are intended to benefit from or settlement reduce or eliminate the risk of any actual or threatened Action under which fluctuations in the Company has any obligation or Liability that will continue after the Closing Dateprice of commodities;
(xi) any Contract limiting or restraining Organizational Documents of the Company or any successor thereto from engaging or competing in any manner, in any location or in any businessCompany;
(xii) any Contract relating to the acquisition by the Company of all Affiliate Contractsor substantially all the assets of any operating business or a majority of the capital stock or other controlling interest of any other Person;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of partnership, joint venture or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licenseesubstantially similar Contracts;
(xiv) any Contract concerning the acquisitionwith a supplier, dispositionvendor or service provider granting such supplier, occupancy, management vendor or operation of any Real Property owned, leased service provider exclusive rights to provide such product or used by the Companyservice;
(xv) all collective bargaining agreements entered into by the Companyany Contract that contains “take or pay” provisions;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be contains a “most favored nation” provision or a material to the Company, other than any such agreement entered into in the Ordinary Course of Businesslimitation on price increases;
(xvii) any Contracts with any Governmental Authority Contract pursuant to which the Company is a partyresponsible for any imbalances (gathering, processing, transportation or otherwise) that are associated with the Assets;
(xviii) any Contracts Contract that limit, in contains any material respect, covenant of the Company that materially limits or purports to limit the ability of the Company to compete in any line of business or with any Person or in any geographic area or during any period of timearea;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) Contract which relates to Indebtedness under which the Company is has outstanding obligations in excess of $500,000 or under which it has imposed a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; andsecurity interest on any of its Assets;
(xx) any Contract to purchaseemployment agreement or any change in control agreement, lease retention agreement, severance, termination or otherwise acquire the right to own, use separation agreement or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); andsimilar Contract;
(xxi) any other Contract that is material independent contractor agreement requiring future payments in excess of $500,000 with any Person regularly performing services directly related to the operation of Company’s business, including the business of Operator Agreement;
(xxii) excluding the Engagement Letters, any other financial advisory or similar Contract with investment or commercial banks;
(xxiii) any Contract with any Governmental Authority; and
(xxiv) any Contract entered into or assumed by the Company and not otherwise disclosed pursuant for which the primary purpose is to this Section 4.10(a)provide for the indemnification of any Person.
(b) The Company Contributor has made available to Buyer true, correct and complete copies of all Material Contracts.
(c) Except as set forth on Schedule 4.15(c), each of the Material Contracts is in full force and effect in all material compliance with respects and constitutes a legal, valid and binding obligation of the terms and provisions of each Material Contract. The CompanyCompany and, and to the Knowledge of the Company’s Knowledge, the other party thereto, subject to applicable bankruptcy, insolvency, reorganization, fraudulent conveyance, arrangement, moratorium and other similar Laws relating to or affecting the rights of creditors generally, and general equitable principles.
(d) Except as set forth on Schedule 4.15(d):
(i) the Company has not received written notification that any Material Contract is not in full force and effect, or that the Company or any other party thereto has breached its obligations thereunder;
(ii) neither the Company nor, to the Company’s Knowledge, any other party to any Material Contract, is in material breach or material default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.; and
(ciii) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. 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. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received written notification of any event, nor, to the Company’s Knowledge, has any event occurred, that (with or without notice or lapse of termination time) would reasonably be expected to result in a material breach of, or intent to terminate by a material default under, the terms of any party to Material Contract or materially adversely affect the value of any Material Contract.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Sources: Contribution Agreement (Silver Run Acquisition Corp II)
Material Contracts. (a) Section 4.10(a3.16(a) of the Company SALIC Disclosure Schedule sets forth contains a true, complete and correct list of each Contract in force as of the following Contracts date hereof (other than and excluding any Reinsurance Contract or Reserve Financing Contract (which are addressed in Section 3.21)) to which the any SALIC Group Company is a party or by under which any of the Company is bound and which have not been entirely fulfilled or performed SALIC Group Companies has material continuing obligations as of the date hereof that meets any of the following criteria (such Contractseach, collectively, the a “Material ContractsContract”):
(i) all Contracts that contain restrictions with respect to payment of dividends or any other distribution in respect of the Membership Units or other Equity of the Company;
(ii) any Contract that requires expenditures by its terms requires the payment by or on behalf of the a SALIC Group Company involving consideration in excess of One Hundred Thousand Dollars ($100,000 per annum 100,000) in any twelve (12)- month period or the delivery by the SALIC Group Company or their Affiliates of goods or services with a fair market value in excess of One Hundred Thousand Dollars ($100,000 per annum or 100,000);
(ii) provides for the payments or goods or services to be received by a SALIC Group Company to receive payments in excess of One Hundred Thousand Dollars ($100,000 per annum100,000) in any twelve (12)-month period;
(iii) all Contracts involving relates to the incurrence by a loan (SALIC Group Company of any indebtedness, other than accounts receivable owing from trade debtors such Contracts entailing past or reasonably expected future amounts less than One Hundred Thousand Dollars ($100,000) in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000aggregate;
(iv) relates to the acquisition or disposition by a SALIC Group Company outside the Ordinary Course of Business of any Contract that material assets or any material business (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the whether by merger, sale or purchase of stock, sale or purchase of assets or otherwise) to the extent any product actual or servicecontingent material obligations of the SALIC Group Company thereunder remain in effect, other than transactions involving Investment Assets;
(v) grants a right of first refusal or first offer or similar right or materially restricts or limits a SALIC Group Company’s ability to freely engage in any Contract that relates to an acquisition business, compete with other entities, market any product or divestiture solicit employees or customers, or provides for “exclusivity” or any similar requirement, in each case in favor of material assets that contains covenants, indemnities or any Person other contractual obligations that could impose a Liability that is material to than the subject SALIC Group Company;
(vi) is a capital maintenance Contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the SALIC Group Companies or any capital maintenance Contract under or similar agreement pursuant to which the Company has SALIC Group Companies have agreed to contribute capital or surplus to any outstanding Indebtedness Person or evidencing an Encumbrance on guarantee the obligations of any property or asset of the Company, other than a Permitted EncumbrancePerson under any insurance Contract;
(vii) all Contracts under which is a collective bargaining agreement or other Contract with any Person (other than the Company) has directly labor organization, union or indirectly guaranteed Indebtedness of the Company in excess of $50,000association;
(viii) relates to the license or sublicense to a SALIC Group Company of any bonds material Intellectual Property or Contracts the license from a SALIC Group Company of Guarantee any material Intellectual Property, other than “shrink wrap” or “click through” licenses or licenses of generally-available “off the shelf” computer software or databases;
(ix) is a written Contract with any Employee related to such Employee’s employment with any of the SALIC Group Companies;
(x) is a Contract for any joint venture, partnership or similar arrangement, or any Contract involving a sharing of profits, losses, costs or liabilities by the SALIC Group Companies with any other Person or relating to the formation, creation, operation, management or control of any partnership or joint venture in which respect of the Company acts as business of the SALIC Group Companies;
(xi) is an investment management agreement;
(xii) is a surety material indemnification agreement or guarantor guarantee in respect of the business of the SALIC Group Companies;
(xiii) is entered into with respect any Governmental Authority;
(xiv) provides for exclusivity or any similar requirement or includes a “most favored nation” provision;
(xv) contains change of control provisions;
(xvi) contains notification or termination provisions related to the insolvency of a Debtor, other than to the extent such provision would be unenforceable pursuant to Section 365(e)(1) of the Bankruptcy Code;
(xvii) requires any of the SALIC Group Companies to maintain a minimum rating or has a ratings trigger;
(xviii) provides for any obligation (fixed to loan or contingent) of contribute funds to, or make investments in, another Person;
(ixxix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of SALIC Intercompany Agreement or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licenseeTerminating Intercompany Agreement;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material 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;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) is a mortgage, indenture, loan or credit agreement, security agreement or other agreement or instrument relating to the borrowing of money or extension of credit or the direct or indirect guarantee of any Contract to purchaseobligation for borrowed money of any Person or any other liability in respect of indebtedness for borrowed money of any Person, lease or otherwise acquire the right to ownin each case, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount involving liabilities in excess of One Hundred Thousand Dollars ($100,000, individually () or any direct or indirect guarantee of any obligation or liability in the case respect of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); andBenefit Plan;
(xxi) any other Contract that is provides for a material to the operation or function of the business of the Company and not SALIC Group Companies to be outsourced to, or otherwise disclosed pursuant performed by, a third Person; or
(xxii) is an obligation to this Section 4.10(a)enter into any of the foregoing.
(b) The Company is in material compliance with the terms and provisions of With respect to each Material Contract. The Company, assuming the due authorization, execution and delivery thereof by the other party or parties thereto, (i) each Material Contract is a valid and binding obligation of the applicable SALIC Group Company and, to the Knowledge of SALIC, as of the Companydate hereof, the each other party or parties thereto, in accordance with its terms and is in full force and effect, subject to any Material Contract the Bankruptcy and Equity Exceptions, and is not in breach or default under any enforceable against the applicable SALIC Group Company and, to the Knowledge of its terms. The Company has not received notice of any breachSALIC, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company other party thereto in accordance with its respective terms terms, subject to the Bankruptcy and Equity Exceptions, (ii) the applicable SALIC Group Company is not, and, to the Knowledge of SALIC, no other party thereto is, in full force and effect. Each Material Contract (default or description) sets forth breach in any material respect in the entire agreement and understanding (performance, observance or complete description fulfillment of any obligation, covenant or condition contained in each of the material terms, as applicable), between the Company, on one handMaterial Contracts, and the other parties thereto, on the other hand, with respect (iii) to the subject matter thereof. No event Knowledge of SALIC, there does not exist any event, condition or circumstance has occurred that, omission that would constitute such a default or breach (with notice or without lapse of time or notice or both); provided, would constitute an event of default under however, that this Section 3.16(b) does not apply to any Terminating Intercompany Agreement or any other Material Contract to be rejected or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason terminated pursuant to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contractthis Agreement.
(dc) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not Prior to the acquisition date of any business (earn-out or other similar type this Agreement, copies of payments) or noncompetition agreementeach Material Contract have been made available to Purchaser.
Appears in 1 contract
Sources: Stock Purchase Agreement
Material Contracts. (a) Section 4.10(a) 4.17 of the Company Disclosure Schedule Letter sets forth a truelist, complete and correct list as of the date of this Agreement, of each Contract (other than any Company Benefit Plan or Foreign Benefit Plan (except in the case of the following Contracts clause (xii) of this Section 4.17)) to which the Company or any of its Subsidiaries is a party or by which the (each such Contract, a “Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material ContractsContract”):) that:
(i) all Contracts that contain restrictions with respect to payment constitutes a “material contract” (as such term is defined in item 601(b)(10) of dividends or any other distribution in respect of the Membership Units or other Equity of the CompanyRegulation S-K);
(ii) creates (or governs the operation of) a material joint venture, alliance or partnership, including any Contract that by its terms requires the payment by Company Minority Interest Business;
(iii) is an acquisition agreement, disposition agreement, asset purchase agreement, stock purchase agreement or on behalf of other similar agreement entered into after October 1, 2023, and which (x) has not yet been consummated, pursuant to which the Company reasonably expects that it is required to pay, or the counterparty is required to pay if a disposition, total consideration (including assumption of debt) after the date of this Agreement in excess of $100,000 per annum 10,000,000 or (y) which has been consummated and has continuing “earn-out,” purchase price adjustment or other contingent payment obligations, in each case that could result in payments in excess of $5,000,000 in the aggregate;
(iv) relates to indebtedness for borrowed money or the delivery by deferred purchase price of property or that imposes a Lien on the assets of the Company or any of goods its Subsidiaries, or services with a fair market any financial guaranty thereof, and having an outstanding principal amount or value in excess of $100,000 per annum or provides for 5,000,000 other than any such Contract among the Company to receive payments in excess and any of $100,000 per annum;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course its wholly owned Subsidiaries or among any of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or serviceSubsidiaries;
(v) any Contract that relates constitutes a grant of rights (including an option or covenant not to an acquisition assert) under material Intellectual Property Rights to or divestiture from the Company or its Subsidiaries, other than with respect to non-exclusive licenses granted in the ordinary course of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Companybusiness;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining prohibits the Company or any successor thereto of its Subsidiaries from (A) engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with material respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability of the Company to compete in any line of business business, in any geographical location or with any Person or (B) selling any products or services of or to any other Person or in any geographic area region, in each case, to the extent such restrictions or during any period of time;
(xix) all (i) employment agreements (excluding, for certainty, any employees who prohibitions are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) material to which the Company is and its Subsidiaries, taken as a party and which are not cancellable without material penalty whole, other than Contracts that may be terminated by the Company or without more than any of its Subsidiaries with ninety (90) days’ notice; andor less notice without payment by the Company or any of its Subsidiaries of any material penalty;
(xxvii) any Contract to purchaseother than customer, lease carrier or otherwise acquire the right to own, use or lease any property or assets, including such supplier Contracts entered into by an Affiliate in the ordinary course of business or as set forth in the capital budget of the CompanyCompany made available to Parent prior to the date of this Agreement, involves expenditures or guaranteed receipts by the Company or any of its Subsidiaries of more than $7,500,000 in the last fiscal year or is expected to involve expenditures or guaranteed receipts by the Company or any of its Subsidiaries of more than $7,500,000 in the current fiscal year;
(viii) is a Material Company Lease;
(ix) is a Labor Agreement;
(x) is a settlement or similar agreement pursuant to which the Company or a Subsidiary is a party or is bound that involves (1) the future payment of money damages (excluding monetary damages that are fully covered by the insurance policies of the Company and its Subsidiaries) of greater than $500,000 or (2) injunctive or equitable relief that would impose any material restrictions, obligations or changes on the business or operations of the Company or any of its Subsidiaries that, in each case, would be effective after, or not terminate as a result of, the Merger Closing;
(xi) is an agreement (1) for an amount the employment or engagement of any director, officer, employee, individual independent contractor, or other Person on a full-time or consulting basis, which, if terminated, would give rise to cash severance or other obligations (other than the acceleration of equity or equity-based awards) in excess of $100,000, individually 750,000 or (2) requiring cash payments (other than the acceleration of equity or equity-based awards) upon a change-in-control in the case excess of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and1,000,000;
(xxixii) any other is a Contract with a Governmental Authority that is material to the operation Company and its Subsidiaries, taken as a whole;
(xiii) imposes exclusivity requirements, fixed pricing, fixed volume or spend, material minimum payment, most favored nations or most favored customer status, rights of first offer or last offer, in each case, to the business of extent such restrictions or obligations are material to the Company and not otherwise its Subsidiaries, taken as a whole; or
(xiv) is a Contract with an Affiliate or other Person that would be required to be disclosed pursuant to this Section 4.10(a)under Item 404(a) of Regulation S-K promulgated by the SEC.
(b) The Neither the Company nor any Subsidiary of the Company is in material compliance with breach of or default under the terms and provisions of each Material Contract. The Company, and to the Knowledge of the Company, the other party to any Company Material Contract is not in where such breach or default under any of its termshas had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. The Company Except as has not received notice of any breachhad and would not reasonably be expected to have, default individually or notice of termination by any Person under any in the aggregate, a Company Material Contract. A trueAdverse Effect, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No no event or circumstance has occurred that, with notice or without notice, lapse of time or both, would constitute an event of a default under any Company Material Contract by the Company or result any of its Subsidiaries and (ii) to the Knowledge of the Company, no other party to any Company Material Contract is in a termination thereof breach of or would cause or permit default under the acceleration or other changes terms of any right or Company Material Contract. Each Company Material Contract is a valid and binding obligation of the Company or the loss relevant Subsidiary party thereto, as applicable, and, to the Knowledge of the Company, is in full force and effect (except as such enforceability may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditor’s rights, and by general equitable principles), except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Since June 30, 2024 through the date of this Agreement, except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, no counterparty to any benefit thereunderCompany Material Contract has notified the Company or any of its Subsidiaries in writing (or, to the Knowledge of the Company, otherwise) that it intends to terminate, cancel or not renew a Company Material Contract. The Company has no reason made available to believe any party Parent prior to any the date of this Agreement complete and correct copies of each Company Material Contract will not fulfill its obligations thereunder in all material respects(including any amendments, and the Company has not received any notice of termination modifications or intent to terminate by any party to any Material Contractsupplements thereof).
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Sources: Merger Agreement (Hillenbrand, Inc.)
Material Contracts. (a) Section 4.10(a) Except as filed as exhibits to or disclosed in the Company SEC Documents, and except for this Agreement, as of the date hereof, neither the Company Disclosure Schedule sets forth a true, complete and correct list nor any Subsidiary of each of the following Contracts to which the Company is a party to or by which the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):by any Contract:
(i) all Contracts that contain restrictions with respect is or would be required to payment be filed by the Company as a “material contract” (as such term is defined in Item 601(b)(10) of dividends or any other distribution in respect Regulation S-K of the Membership Units or other Equity of the CompanyExchange Act);
(ii) pursuant to which the Company or any Contract of its Subsidiaries received revenue from a customer for the 2020 fiscal year in excess of $250,000 in the aggregate with respect to each such customer;
(iii) pursuant to which the Company or any of its Subsidiaries made payments to any vendor for the 2020 fiscal year in excess of $250,000 in the aggregate, including by means of royalty payments with respect to each such vendor;
(iv) evidencing a capital expenditure or obligation to make any capital commitment that is effective as of the date hereof and in an amount in excess of $250,000 in the aggregate;
(v) containing a covenant limiting the ability of the Company or any Subsidiary of the Company (or, at any time after the consummation of the Merger, Parent or any of its Affiliates) to ACTIVE/110954383.28 compete or engage in any line of business, to compete with any Person in any geographic area or to enter any territory, market or field;
(vi) (A) relating to or evidencing Indebtedness or any guarantee for the benefit of a third party of Indebtedness by its terms requires the payment by Company or on behalf any Subsidiary of the Company in excess of $100,000 per annum 250,000 in the aggregate or the delivery by the Company of goods (B) that grants or services with creates a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum;
(iii) all Contracts involving a loan (Lien, other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business)a Permitted Lien, or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the CompanyCompany or any of its Subsidiaries, other than except for such Liens that are not material, individually or in the aggregate, to the Company and its Subsidiaries, taken as a Permitted Encumbrancewhole;
(vii) all Contracts pursuant to which a license is granted by the Company or any Subsidiary of the Company of or under Owned Intellectual Property (i) on an exclusive basis, or (ii) pursuant to which the Company or any Person (Subsidiary received revenues for the 2020 fiscal year in excess of $50,000 per Contract, in each case other than (A) non-exclusive licenses granted to customers of the Company) has directly Company or indirectly guaranteed Indebtedness any Subsidiary of the Company in connection with the sale or licensing of the Company’s or its Subsidiaries’ products or services, (B) nondisclosure agreements granting a limited right to use confidential information subject to customary protections to preserve confidentiality and proprietary rights and entered into in the ordinary course of business, and (C) Contracts primarily for the provision of services to the Company or its Subsidiaries in which the non-exclusive licenses to any Owned Intellectual Property in such Contract are merely incidental to the transaction contemplated in such Contract;
(viii) pursuant to which a license of or under Third Party Intellectual Property is granted to the Company or any Subsidiary of the Company (i) on an exclusive basis, or (ii) on a non-exclusive basis, other than (A) Contracts for Open Source Software, (B) Contracts for Off-the-Shelf Software pursuant to which the Company or any Subsidiary made payments during the 2020 fiscal year of less than $250,000 per Contract, (C) nondisclosure agreements granting a limited right to use confidential information subject to customary protections to preserve confidentiality and proprietary rights and entered into in the ordinary course of business, and (D) employee invention assignment agreements and consulting agreements with employees and Independent Contractors of the Company or its Subsidiaries on the Company’s or any of its Subsidiaries’ standard form of agreement, copies of which have been Made Available to Parent, or a substantially similar agreement;
(ix) that otherwise restricts the Company’s ability to use the Owned Intellectual Property (including any settlement agreements, co-existence agreements, or covenants not to ▇▇▇);
(x) relating to (A) the acquisition of any interest in another entity (whether by merger, consolidation, recapitalization, share exchange, sale of stock, sale of assets or otherwise) or (B) the disposition of any material assets of the Company or any of its Subsidiaries (other than sales of inventory in the ordinary course of business), in each case, under which there are any continuing “earn out” or other contingent payment or indemnification obligations on the part of the Company or its Subsidiaries;
(xi) that involves any material partnership, joint venture or similar arrangement or that prohibits the payment of dividends or distributions in respect of the Equity Interests of the Company or any of its Subsidiaries, prohibits the pledging of the capital stock of the Company or any of its Subsidiaries or prohibits the issuance of guarantees by the Company or any of its Subsidiaries;
(xii) that is a settlement or similar Contract with any Governmental Authority; 41 ACTIVE/110954383.28
(xiii) that relates to hedging, factoring, derivatives or similar arrangements other than foreign currency hedging, factoring or other similar transactions conducted in the ordinary course of business substantially consistent with past practices;
(xiv) that would be required to be disclosed by Section 404(a) of Regulation S-K under the Exchange Act;
(xv) that is a lease or sublease (A) for any real property used for manufacturing purposes by the Company or one of its Subsidiaries or (B) of real property requiring payments by the Company or any of its Subsidiaries in excess of $50,000 during any fiscal year;
(xvi) that is an active Contract with a Governmental Authority;
(xvii) that contains any standstill or similar agreement pursuant to which one party has agreed not to acquire assets or securities of another Person, except for any such Contract that is a confidentiality, nondisclosure or similar type of agreement;
(xviii) (A) that grants or otherwise provides to any Person any exclusive supply or distribution agreement or other exclusive rights or that materially restricts the Company or any of its Subsidiaries with respect to sales, distribution, licensing, marketing or development of any product or service or (B) that grants or otherwise provides to any Person any (1) “most favored nation” status or any similar status requiring the Company or any of its Subsidiaries to offer a Person any term, conditions or concessions that are at least as favorable as those offered to one or more other Persons or (2) rights of first refusal, rights of first negotiation or similar rights;
(xix) (or series of related Contracts) containing any future capital expenditure obligations or for the acquisition of fixed assets requiring payment by the Company or any of its Subsidiaries (or otherwise relating to the business) in excess of $250,000;
(xx) which contains any price reductions based on benchmarking to market or formulaic methodology;
(xxi) pursuant to which any of the Company or its Subsidiaries is lessee of or holds or operates any personal property owned by any other Person, for which the annual rental rate exceeds $50,000;
(viiixxii) any bonds or Contracts that provides for a change of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venturecontrol, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development retention or similar arrangement;
(x) all Contracts involving payment by any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
of its Subsidiaries (xii) all Affiliate Contracts;
(xiii) except for any Company IP Agreements Employee Plan pursuant to its terms as well as any Contract under which in effect on the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material 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;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option termdate hereof); and
(xxixxiii) any other Contract that is material to the operation amendments, supplements and/or modifications in respect of any of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)foregoing.
(b) Each Contract of the type described above is referred to herein as a “Material Contract.” The Company is has Made Available materially correct and complete copies of all Material Contracts, in material compliance with each case, as amended or otherwise modified and in effect prior to the terms date hereof. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, as of the date hereof, all of the Material Contracts are (i) valid, binding and provisions enforceable on the Company or the applicable Subsidiary of each Material Contract. The the Company, and as the case may be, and, to the Knowledge of the Company, the each other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breachthereto, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (iiB) in full force and effect, except as may be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by 42 ACTIVE/110954383.28 general principles of specific performance, injunctive relief and other equitable remedies. Each Material Contract (or description) sets forth To the entire agreement and understanding (or complete description Knowledge of the material terms, as applicable), between the Company, on one handeach Material Contract will continue to be a legal, valid, binding and enforceable obligation of the Company or its applicable Subsidiary party thereto immediately following the Closing, except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. As of the date hereof, neither the Company nor any Subsidiary of the Company has, and, to the Knowledge of the Company, none of the other parties theretothereto have, on the other handviolated any provision of, or committed or failed to perform any act under, and no event, occurrence, act or condition exists, which (with respect to the subject matter thereof. No event or circumstance has occurred thatwithout notice, with notice or lapse of time or both, ) would reasonably be expected to constitute an event of a default under the provisions of any Material Contract except, in each case, for those violations and defaults that would not reasonably be expected to have, individually or result in the aggregate, a termination thereof or would cause or permit Company Material Adverse Effect, and, as of the acceleration or other changes date hereof neither the Company nor any Subsidiary of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any written notice of termination any of the foregoing, or intent to terminate by that any party intends to terminate, cancel or not renew any Material Contract.
(d) The Company has no Liability , except for the deferred purchase price of propertysuch termination, goods cancellation or services, whether connected or non-renewal which would not reasonably be expected to be material to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreementCompany and its Subsidiaries, taken as a whole.
Appears in 1 contract
Sources: Merger Agreement (SYNAPTICS Inc)
Material Contracts. (ai) Section 4.10(a3(l)(i) of the Company Disclosure Schedule sets forth a true, complete and correct list of all Material Contracts (x) by which Uniloy Italy is bound, (y) that is exclusively related to the business, or (z) that is otherwise an Assigned Contract. For purposes of this Agreement, each of the following Contracts shall be deemed to constitute a “Material Contract”:
(A) any contract relating to, and evidence of, indebtedness for borrowed money or the deferred purchase price of property (whether incurred, assumed, guaranteed or secured by any asset) in excess of Twenty Five Thousand Dollars ($25,000) or relating to any Lien on any material asset or property of the Business other than Permitted Liens;
(B) any contract pursuant to which the a Seller Company is has agreed to provide funds to or make any loan, capital contribution or other investment in, or assume, guarantee or act as a party or by which the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):
(i) all Contracts that contain restrictions surety with respect to payment of dividends or any other distribution in respect of the Membership Units or other Equity of the CompanyLiability of, any Person;
(iiC) any Contract contract that by its terms requires purports to limit, curtail or restrict the payment by or on behalf ability of the a Seller Company in excess any material respect to compete in any geographic area or line of $100,000 per annum business, or the delivery by the Company of goods or services with a fair market value to make sales to any Person in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annumany manner;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(ivD) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with executory contract for the sale or purchase of any product real property, or servicefor the sale or purchase of any goods or services in an amount in excess of One Hundred Thousand Dollars ($100,000);
(vE) any Contract that relates employment, consulting or services contract with any employee or other Person requiring the payment of total annual compensation in excess of One Hundred Thousand Dollars ($100,000) per annum;
(F) any reselling, sales, marketing, merchandising or distribution contract requiring payments in excess of One Hundred Thousand Dollars ($100,000) per annum;
(G) any joint venture or partnership, joint development, merger, asset or share purchase or divestiture contract relating to an the Business with currently outstanding rights or obligations;
(H) any contract relating to settlement of any administrative or judicial Proceedings since the date two years prior to the date hereof;
(I) any contract with a Governmental Body with currently outstanding rights or obligations in excess of One Hundred Thousand Dollars ($100,000) per annum;
(J) any contract relating to capital expenditures in excess of One Hundred Thousand Dollars ($100,000) or the acquisition or divestiture disposition of material assets (x) any business (whether by stock or asset purchase, merger or otherwise) or (y) any other asset not in the Ordinary Course of Business entered into since the date two years prior to the date hereof;
(K) any Seller Companies IP Agreements;
(L) any Lease;
(M) any collective bargaining agreement or other contract with a labor union, works council or other employee representative;
(N) any contract with a customer or supplier that involves the payment of money in excess of one and five tenths percent (1.5%) of the Business’s net revenue for either of the fiscal years ending December 31, 2017 or December 31, 2018;
(O) any contract that includes a power of attorney or proxy, whether limited or general, revocable or irrevocable;
(P) any contract that contains covenantsany preferential pricing provisions, indemnities such as “most favored customer” or “most favored nation” provisions or similar or equivalent price or term protection clauses;
(Q) any contract that contains any earn-out or similar provision;
(R) any lease or similar agreement under which any of the Seller Companies is lessee of, or holds or uses, any machinery, equipment or vehicle or other contractual obligations tangible personal property;
(S) any contract requiring the future purchase of supplies, equipment or materials by a Seller Company that could impose a Liability has an aggregate continuing liability in excess of One Hundred Thousand Dollars ($100,000) per year;
(T) the India Transferred Contracts; and
(U) any other contract that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts Business taken as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;whole.
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material 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;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a).
(b) The Company is in material compliance with the terms and provisions of each Material Contract. The Company, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company Seller has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, made available complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) copies of the Company Disclosure Schedule.
(c) Material Contracts to Buyer, including all modifications, amendments and supplements thereto. Each of the Material Contract is (i) Contracts constitutes the valid and legally binding on obligation of the applicable Seller Company and, to Seller’s Knowledge, each other party thereto thereto, enforceable in accordance with its respective terms (subject to any applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar Laws now or hereafter in effect relating to creditors’ rights generally or to general principles of equity, regardless of whether such enforceability is considered at equity or at Law), and (ii) is in full force and effect. Each Material Contract (or descriptionExcept as set forth on Section 3(l)(ii) sets forth the entire agreement and understanding (or complete description of the material termsDisclosure Schedule, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No event there is no Breach or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract either by the applicable Seller Company or, to Seller’s Knowledge, by any other party thereto, no event has occurred that with the giving of notice, the lapse of time, or result in both would constitute a termination thereof Breach or would cause or permit default thereunder by the acceleration or applicable Seller Company or, to Seller’s Knowledge, any other changes party, and the applicable Seller Company has not received any written notice of a claim of any right such Breach or obligation or the loss of any benefit thereunderdefault. The Company has no reason to believe any No party to any Material Contract will not fulfill its obligations thereunder has repudiated any provision of such Material Contract. Upon the consummation of the Contemplated Transactions and, in all material respects, respect of the Mexico Deferred Business and the Company has not received any notice India Deferred Business, upon consummation of termination or intent the Mexico Deferred Closing and the India Deferred Closing, each of the Material Contracts will continue to terminate by any party be legal, valid binding and enforceable in accordance with its terms and will continue to be in full force and effect without penalty (subject to any Material Contractapplicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar Laws now or hereafter in effect relating to creditors’ rights generally or to general principles of equity, regardless of whether such enforceability is considered at equity or at Law).
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Sources: Asset and Share Purchase Agreement (Milacron Holdings Corp.)
Material Contracts. (a) Section 4.10(a) As of the Company Disclosure Schedule sets forth a truedate of this Agreement, complete and correct list of each of the following Contracts to which neither the Company nor any of its Subsidiaries is a party to or by which the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):by:
(i) all Contracts that contain restrictions any limited liability company agreement, partnership, joint venture or other similar agreement or arrangement with respect to payment of dividends or any other distribution in respect material business of the Membership Units Company and its Subsidiaries, taken as a whole, other than any such limited liability company, partnership or other Equity joint venture that is a wholly-owned Subsidiary of the Company;
(ii) any Contract that by its terms requires the payment by relating to or on behalf of the Company evidencing Indebtedness in an amount in excess of $100,000 per annum 500,000 individually, or $3,000,000 in the delivery by aggregate, other than equipment leases entered into in the Company ordinary course of goods or services with a fair market value business that do not exceed $15,000,000 in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annumaggregate;
(iii) all Contracts involving any Contract filed or 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 promulgated under the Exchange Act or disclosed or required to be disclosed by the Company in a loan (Current Report on Form 8-K, other than accounts receivable owing from trade debtors Benefit Plans disclosed in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees Section 5.9 of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000Disclosure Letter;
(iv) any Contract not terminable on less than ninety (90) days’ notice that (i) requires purports to limit the right of the Company or its Subsidiaries or any Affiliate of the Company to purchase engage or compete in any product or service in excess material line of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or servicebusiness;
(v) any Contract that relates to an entered into after February 28, 2011, or not yet consummated for the acquisition or divestiture disposition, directly or indirectly (by merger or otherwise), of material all or substantially all the assets that contains covenants, indemnities or capital stock or other contractual obligations that could impose a Liability that is material to equity interests of any Person for aggregate consideration under such Contract in excess of $1,000,000 individually, or $5,000,000 in the Companyaggregate;
(vi) any acquisition Contract under pursuant to which the Company or any of its Subsidiaries has any outstanding Indebtedness continuing indemnification, “earn-out” or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrancecontingent payment obligations that could reasonably be expected to exceed $500,000;
(vii) any Contract (A) pursuant to which the Company or its Subsidiaries sources all Contracts under which any Person (other than or a majority of a particular product that is material to the Company) has directly or indirectly guaranteed Indebtedness business of the Company in excess and its Subsidiaries, taken as a whole, from one (1) Person and/or such Person’s Affiliates (i.e., a “sole-source” supply Contract) or (B) pursuant to which the Company or its Subsidiaries grants any one (1) Person and/or such Person’s Affiliates the exclusive right to be the sole acquiror of $50,000a Company Product;
(viii) any bonds or Contracts of Guarantee in which the Company acts as Contract that is a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venturematerial settlement, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development conciliation or similar arrangement;
agreement (xA) all Contracts involving that is with any resolution or settlement of any actual or threatened Action under Governmental Entity, (B) pursuant to which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which of its Subsidiaries is obligated after the Company is a party providing for the license date of or settlement with respect this Agreement to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material 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;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount pay consideration in excess of $100,0001,000,000, individually or (in the case of a lease, per annumC) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to would otherwise materially limit the operation of the business Company or any of the Company and not otherwise disclosed pursuant to this Section 4.10(a).
its Subsidiaries (b) The Company is in material compliance with the terms and provisions of each Material Contract. The Companyor, and to the Knowledge of the Company, Parent or any of its other Affiliates from and after the Merger Closing) as currently operated;
(ix) any Contract that grants an exclusive license of any material Intellectual Property owned by the Company or any Subsidiary to another Person;
(x) any Contract that, individually or in the aggregate, would prevent, materially delay or materially impede the Company’s ability to consummate the transactions contemplated by this Agreement; or
(xi) any Contracts containing minimum purchase conditions in excess of $100,000 or requirements or other party terms that restrict or limit the purchasing relationships of the Company or its Subsidiaries, or any customer, licensee or lessee thereof (the Contracts described in clauses (i) - (xi), together with all exhibits, annexes, addenda and schedules to any such Contracts, being the “Material Contracts”).
(b) Except as prohibited by applicable Law or applicable contractual restrictions, a copy of each Material Contract that is not publicly available has previously been made available to Parent. Except as would not reasonably be expected to have a Company Material Adverse Effect (i) each Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete a valid and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) binding agreement of the Company Disclosure Schedule.
(c) Each Material Contract or one of its Subsidiaries, as the case may be, and is (i) valid in full force and binding on effect and enforceable against the Company party thereto or such Subsidiary in accordance with its respective terms terms, subject to the Bankruptcy and Equity Exception, (ii) in full force and effect. Each Material Contract (or description) sets forth neither the entire agreement and understanding (or complete description Company nor any of its Subsidiaries nor, to the material terms, as applicable), between Knowledge of the Company, on one handany other party thereto is in default or breach in any material respect under the terms of any Material Contract, and nor has the other parties thereto, on Company or any of its Subsidiaries received Knowledge of the other hand, with respect to the subject matter thereof. No existence of any event or circumstance has occurred thatcondition which constitutes, with or after notice or lapse of time or both, would constitute an event will constitute, a material default on the part of default the Company or any Subsidiaries under any Material Contract Contract, (iii) the Company and each of its Subsidiaries, and, to the Knowledge of the Company, any other party thereto, has performed in all material respects all obligations required to be performed by it under each Material Contract, and (iv) neither the Company nor any Subsidiary has received any written notice of the termination or result in a termination thereof or would cause or permit the acceleration or other changes cancellation of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contract.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not prior to the acquisition end of any business (earn-out or other similar type of payments) or noncompetition agreementits term.
Appears in 1 contract
Sources: Merger Agreement (Immucor Inc)
Material Contracts. (a) Section 4.10(a) of the Company Disclosure Schedule sets forth contains a true, complete and correct accurate list or description of each all written or oral contracts, agreements, evidences of indebtedness, guarantees, obligations, grants, leases and executory commitments (“Contracts”) in effect as of the following Contracts Execution Date to which the Company or any of its Subsidiaries is a party party, or by which the Company is bound and which have not been entirely fulfilled any of their respective assets or performed (such Contractsproperties are bound, collectively, the “Material Contracts”):which:
(i) all Contracts that contain restrictions with respect to payment of dividends require the Company or any other distribution of its Subsidiaries to pay or entitle any of them to receive in respect excess of $1,000,000 and that are not otherwise required to be disclosed pursuant to clauses (ii) through (xii) of this Section 4.10;
(ii) require the Membership Units Company or other Equity any of its Subsidiaries to pay at least $500,000 over their remaining term and are not terminable by the Company within ninety (90) days from the Execution Date without penalty or further obligation on the part of the Company;
(iiiii) any Contract that by its terms requires the payment by involve payments based on profits or on behalf revenues of the Company in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000Company;
(iv) any Contract that create or ▇▇▇▇▇ ▇ ▇▇▇▇ (i) requires including Liens upon properties acquired under conditional sales, capital leases or other title retention or security devices), other than Permitted Liens and other than contracts with customers and suppliers entered into in the Company to purchase any product or service in excess ordinary course of $100,000 from a third party or (ii) requires that the Company deal exclusively business consistent with a third party in connection with the sale or purchase of any product or servicepast practice;
(v) any Contract that relates relate to an acquisition the voting or divestiture transfer of material assets that contains covenants, indemnities Company Stock or other contractual obligations equity securities of the Company or its Subsidiaries, the registration of any Company Stock or other equity securities of the Company or its Subsidiaries under the Securities Act or that could impose a Liability that is material grant any redemption or preemptive rights with respect to Company Stock or other equity securities of the CompanyCompany or its Subsidiaries;
(vi) any Contract under which obligate the Company has or any outstanding Indebtedness of its Subsidiaries to, directly or evidencing an Encumbrance on any property indirectly, make a capital contribution to, or asset of the Companyother investment in, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly Company or indirectly guaranteed Indebtedness any of its Subsidiaries and other than extensions of credit in the Company in excess ordinary course of $50,000business consistent with past practice);
(viiivii) any bonds or Contracts of Guarantee in which the Company acts as involve a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development partnership or similar arrangement;
(xviii) all Contracts involving any were entered into in connection with the settlement or other resolution or settlement of any actual Action that have any continuing material obligations, liabilities or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining restrictions on the Company or any successor thereto from engaging or competing in any manner, in any location or in any businessof its Subsidiaries;
(xiiix) all Affiliate Contracts;
purport to prohibit, restrict or limit (xiiiA) the operation of the Business in any geographical area, (B) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of acquisition or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property sale (other than commercially available software customary anti-assignment and hardwareanti-export provisions) and any Intellectual Property license agreements under which of property (tangible or intangible) by the Company is currently a licensee;
or any Subsidiary or (xivC) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability freedom of the Company or any Subsidiary to compete engage in any line of business or to compete with any Person or in any geographic area or during any period of timePerson;
(xixx) all (i) employment agreements (excludinginvolve radio spectrum, for certaintysatellite capacity, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (satellite coordination or similar arrangementsarrangement;
(xi) relate to which the operation of a material portion of the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ noticeNetwork; andor
(xxxii) provide for indemnification of any Contract Person with respect to purchase, lease material liabilities relating to any current or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate former business of the Company, for an amount in excess any of $100,000, individually (in the case of a lease, per annum) its Subsidiaries or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any predecessor Person other Contract that is material to the operation of the business than indemnification obligations of the Company and not otherwise disclosed or any of its Subsidiaries pursuant to this Section 4.10(a)the provisions of a contract entered into by the Company or any of its Subsidiaries in the ordinary course of business consistent with past practice.
(b) The Company is in material compliance with the terms has delivered to Parent, or otherwise made available for inspection by Parent, a correct and provisions of each Material Contract. The Company, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth listed in Section 4.10(a) of the Company Disclosure Schedule (collectively, the “Material Contracts”). Except as set forth in Section 4.10(b) of the Company Disclosure Schedule, and except for any Material Contract that (A) is terminated by the Company with the prior written consent of Parent in accordance with Section 6.2(b)(ii)(H), (B) expires in accordance with its terms after the Execution Date and on or before the Closing Date, (C) is terminated by the other party thereto in accordance with the terms of such Material Contract, other than due to a breach or default by the Company or its Subsidiaries or (D) is a Material Contract with a supplier named in Section 4.24 of the Company Disclosure Schedule, (i) each Material Contract is a valid and binding obligation of each of the Company and its Subsidiaries that is a party thereto and is in full force and effect, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws now or hereafter in effect relating to or affecting the rights and remedies of creditors generally and subject to general principles of equity (whether considered in a proceeding at law or in equity), (ii) the Company and/or its Subsidiaries, as applicable, have performed in all material respects all material obligations required to be performed by them under the Material Contracts, and (iii) the Company and/or its Subsidiaries are (with or without notice or lapse of time, or both) not in material breach or default thereunder. As of the Execution Date, (i) each Material Contract with a supplier named in Section 4.24 of the Company Disclosure Schedule (i) is a valid and binding obligation of each of the Company and its Subsidiaries that is a party thereto and is in full force and effect, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws now or hereafter in effect relating to or affecting the rights and remedies of creditors generally and subject to general principles of equity (whether considered in a proceeding at law or in equity), (ii) the Company and/or its Subsidiaries, as applicable, have performed in all material respects all material obligations required to be performed by them under such Material Contracts, and (iii) the Company and/or its Subsidiaries are (with or without notice or lapse of time, or both) not in material breach or default thereunder. To the Company’s Knowledge, each Material Contract is a valid and binding obligation of the other parties thereto, and no other party to any Material Contract is (with or without notice or lapse of time, or both) in material breach or default under the terms of such Material Contract, except in each case as would not reasonably be expected to materially impact the Business.
(c) Each Material Contract is (i) valid and binding on Neither the Company party thereto in accordance with nor any of its respective Subsidiaries has entered into any Contract which by its terms and (ii) in full force and effect. Each Material Contract (would prohibit or description) sets forth materially delay the entire agreement and understanding (or complete description consummation of the material terms, as applicable), between Merger or any of the Company, on one hand, transactions contemplated by this Merger Agreement and the other parties thereto, on the other hand, with respect to the subject matter thereof. 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. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material ContractTransaction Documents.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Sources: Merger Agreement (Viasat Inc)
Material Contracts. (a) Section 4.10(aSchedule 2.17(a) of the Company Disclosure Schedule Letter (specifying the appropriate paragraph) sets forth a true, complete and correct list of each all currently effective Contracts of the Company in the following Contracts to which the Company is a party or by which the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):categories:
(i) all Contracts that contain restrictions with respect each Contract under which the Company has:
(A) created, incurred, assumed or guaranteed Company Debt or created any security interest pursuant to payment of dividends any borrowing; or
(B) an obligation to make an investment in or loan to any other distribution in respect of the Membership Units or other Equity of the CompanyPerson;
(ii) any each Contract that by its terms requires for the payment by or on behalf of the Company in excess of $100,000 per annum or the delivery purchase by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive involving total annual payments in excess of $100,000 per annum100,000, other than for purchases pursuant to purchase orders;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in each Contract for the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of sale by the Company extended in the Ordinary Course of Business), goods or investment in, any Person or any agreement relating to the making of any such loan, advance or investment services involving total annual revenues in excess of $25,000100,000, other than for the sale of products pursuant to purchase orders;
(iv) any each Contract that (i) requires restricting or limiting, or purporting to restrict or limit, the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset freedom of the Company, other than a Permitted Encumbrance;
or any of their respective Affiliates (vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint ventureincluding, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company , Acquirer or any successor thereto from engaging of its Affiliates) right to (A) engage or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability of the Company to compete in any line of business or with any Person or operations in any geographic area or during any period of time, (B) solicit or engage any customer, vendor or service provider, or (C) beneficially own any assets, properties or rights, anywhere at any time;
(xixv) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, each lease or otherwise acquire the right to own, use or lease any of personal property or assetsother Contract affecting the ownership of, including such Contracts entered into by an Affiliate leasing of, or other interest in, personal property of the Company, for an amount value in excess of $100,000, individually ;
(vi) each Contract relating to capital expenditures or improvements in excess of $100,000 in the case aggregate;
(vii) each material Company IP Agreement;
(viii) each Contract obligating the Company to pay royalties, license fees or similar payments involving amounts in excess of a lease, per annum$100,000 in any consecutive twelve (12) month period ending prior to the date hereof or reasonably expected to obligate the Company to make such payments involving amounts in excess of $150,000 100,000 in in the aggregate calendar year that includes the Closing Date;
(ix) each collective bargaining agreement or Contract with any labor union;
(x) each Contract relating to the disposition or acquisition of material assets or any interest in any business enterprise outside the case ordinary course of business;
(xi) each Contract with any dealer, distribution, joint marketing, joint venture, partnership, strategic alliance, Affiliate or development agreement or outsourcing arrangement;
(xii) each Contract that contains a leaseright of first refusal, for the entire term first offer, first negotiation, take or pay, exclusivity, minimum purchase commitments, or “most favored nation” provision in favor of the lease, not including any option term)Person;
(xiii) each Contract with any Governmental Entity; and
(xxixiv) any other each Contract that is material contains a change of control provision or similar provision that gives the counterparty the right to the operation terminate or modify such Contract as a result of the business of the Company and not otherwise disclosed pursuant to transactions contemplated by this Section 4.10(a)Agreement.
(b) Except as set forth in Schedule 2.17(b) of the Company Disclosure Letter:
(i) The Company has delivered or made available to Acquirer true and complete copies of each Contract listed in Schedule 2.17(a) of the Company Disclosure Letter (each, a “Material Contract”);
(ii) Each Material Contract is:
(A) a valid and binding obligation of the Company; and
(B) to the knowledge of the Company, a valid and binding obligation of each other party thereto;
(iii) The Company is in material compliance with and is not in material breach or material violation of, or in material default under, or received notice that it has materially breached, materially violated or materially defaulted under, any of the terms and provisions or conditions of each any Material Contract. The Company, and nor, to the Knowledge of Company’s knowledge, is any party obligated to the Company, the other party Company pursuant to any Material Contract is not in breach or default under subject to any of its terms. The Company has not received notice of any material breach, material violation or material default or notice of termination by any Person under any Material Contract. A truethereunder, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is except as set forth in Section 4.10(aSchedule 2.17(b) of the Company Disclosure ScheduleLetter.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. 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. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contract.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Sources: Agreement and Plan of Merger and Reorganization (Vaccitech PLC)
Material Contracts. (a) Section 4.10(a3.16(a) of the Company Disclosure Schedule sets forth a true, complete lists the following types of contracts and correct list of each agreements (excluding any Plans disclosed on Section 3.10(a) of the following Contracts Company Disclosure Schedule) to which the Company or any Company Subsidiary is a party or by which as of the date hereof (such contracts and agreements as are required to be set forth in Section 3.16(a) of the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, Disclosure Schedule being the “Material Contracts”):
(i) all Contracts that contain restrictions each contract and agreement (individually or together with respect related contracts or agreements) which is reasonably likely to payment of dividends involve consideration paid or payable to or by the Company or any other distribution Company Subsidiary of more than $500,000, in respect of the Membership Units or other Equity of aggregate, over the Companythe twelve month period following the date hereof;
(ii) any Contract that by its terms requires each contract and agreement (individually or together with related contracts or agreements) with the payment by top ten (10) (based on revenue or on behalf of the Company in excess of $100,000 per annum or the delivery by the Company of goods or services expenditure) with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annumeach customer and supplier;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel contracts and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000agreements evidencing indebtedness for borrowed money;
(iv) any Contract that (i) requires the Company to purchase any product all equity-based partnership, joint venture or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or servicesimilar agreement;
(v) any Contract all contracts that relates to an involve the acquisition or divestiture disposition, directly or indirectly (by merger or otherwise), of material tangible assets that contains covenants, indemnities (other than in the ordinary course of business) or capital stock or other contractual obligations that could impose a Liability that is material to the Companyequity interests of another person;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software contracts and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company or any Company Subsidiary is a party;
(xviiivii) any Contracts all contracts and agreements that limit, in any material respector purport to limit, the ability of the Company or any Company Subsidiary to compete in any line of business or with any Person person or entity or in any geographic area or during any period of time;
(xixviii) all (i) employment agreements (excluding, for certaintymaterial contracts or arrangements that result in any person or entity holding a power of attorney from the Company or any Company Subsidiary that relates to the Company, any employees who are employed at will) and (ii) Contracts with independent contractors Company Subsidiary or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ noticetheir respective businesses; and
(xxix) all material contracts under which the Company or any Contract to purchase, lease of the Company Subsidiaries is a licensee or otherwise acquire has received the right to ownuse any Intellectual Property from a third person, use other than licenses for commercially available, off-the-shelf Software, data or lease any property services or assets, including such Contracts purchase orders entered into by an Affiliate in the ordinary course of the Company, for an amount in excess business that required individual or aggregate payments or consideration of $100,000, individually 100,000 or less during any twelve (in the case of a lease, per annum12) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)month period.
(b) The Each Material Contract is a legal, valid and binding obligation of the Company is in material compliance with or the terms and provisions of each Material Contract. The CompanyCompany Subsidiaries and, and to the Knowledge knowledge of the Company, the other party to parties thereto, and neither the Company nor any Company Subsidiary is in material breach or violation of, or default under, any Material Contract nor has any Material Contract been canceled by the other party thereto. To the Company’s knowledge, no other party is not in material breach or violation of, or default under any of its terms. The Company has not received notice of any breachunder, default or notice of termination by any Person under any Material Contract. A true, complete The Company and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description Subsidiaries have not received any written claim of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. 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 thereunderwhich has not been resolved. The Company has no reason furnished or made available to believe Ithax true and complete copies of all Material Contracts, including any party to any Material Contract will not fulfill its obligations thereunder in and all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contractamendments thereto.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Sources: Business Combination Agreement (ITHAX Acquisition Corp.)
Material Contracts. (a) Section 4.10(a3.15(a) of the Company Disclosure Schedule sets forth as of the date hereof a true, complete and correct list of each of the following Contracts (excluding any intercompany Contracts among Seller and its Affiliates that are not Transferred Contracts) that primarily relate to the DCB Business and to which a member of the Company Covidien Group is a party or by party, true and correct copies of which the Company is bound and which have not been entirely fulfilled or performed Seller has made available to Purchaser (such Contractseach, collectively, the a “Material ContractsTransferred Contract”):
(i) all Contracts that contain restrictions with respect to payment of dividends each lease or any other distribution in respect Contract under which a member of the Membership Units Covidien Group is a lessee of, or holds or operates, any machinery, equipment, vehicle or other Equity tangible personal property owned by a third party that requires rental payments in excess of $200,000 per annum or $500,000 in the Companyaggregate;
(ii) each Contract with any DCB Employee requiring payments of base salary in excess of $150,000 per annum, other than any Contract that which by its terms requires the payment is cancelable by or on behalf a member of the Company Covidien Group with notice of not more than thirty (30) days (or such longer period as required by Law) and without cancellation penalties or severance payments;
(iii) each mortgage, indenture, security agreement, pledge, note, loan agreement or guarantee in respect of indebtedness for borrowed money or any agreement that creates a material Encumbrance (other than a Permitted Encumbrance) on any Purchased Asset;
(iv) each customer Contract requiring payments to the Covidien Group with respect to DCB Products in excess of $100,000 per annum or $500,000 in the delivery aggregate;
(v) each outstanding Contract with vendors requiring payments by the Company of goods or services Covidien Group with a fair market value respect to DCB Products in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors 500,000 in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Companyaggregate;
(vi) each Contract materially restricting the ability of Seller to engage in any Contract under which the Company has business or compete with any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;Person; and
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any each material joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, venture Contract and material joint product development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material 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;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)Contract.
(b) The Company is Except as disclosed in material compliance with Section 3.15(b) of the terms and provisions of each Material Contract. The CompanyDisclosure Schedule, and to the Knowledge of Seller, each Transferred Contract set forth on Section 3.15(a) of the CompanyDisclosure Schedule is a valid and binding obligation of a member of the Covidien Group, enforceable against such member of the Covidien Group in accordance with its terms and, to the Knowledge of Seller, each other party thereto, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or similar Laws affecting creditors’ rights generally or by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), and neither such member of the Covidien Group nor, to the Knowledge of Seller, any Material Contract other party thereto, is not in material breach of or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. 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. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material such Transferred Contract.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Material Contracts. (a) Section 4.10(a) Schedule 4.15 of the Company Disclosure Schedule sets forth a true, complete and correct list of Schedules lists each of the following Contracts to which the Company is will be a party or by which on the Closing Date (including Contracts assigned to the Company is bound pursuant to the Assignment Agreement) and which have not been entirely fulfilled or performed are executory (such Contracts, collectively, the contracts and agreements as described in this Section 4.15(a) being “Material Contracts”):
(i) all Contracts that contain restrictions provide for contractually obligated payment or receipt by the Company of more than $200,000 per year, following the Closing, including any such Contracts with respect to payment of dividends customers or any other distribution in respect of the Membership Units or other Equity of the Companyclients;
(ii) any master services agreement, master supply agreement, or other Contract with any customer that by its terms requires repeat transactions between the payment by or Company, on behalf of the Company one hand, and any customer, on the other hand in amounts in excess of $100,000 200,000 per annum or the delivery by the Company of goods or services year;
(iii) any Contract with a fair market value in excess of $100,000 per annum or provides for material supplier that requires the Company to receive purchase its total requirements or a specified percentage of its requirements of any product or service from a third party or that contains “take or pay” provisions;
(iv) (A) any capital lease or (B) any other lease or other Contract relating to equipment providing for aggregate rental payments in excess of $100,000 per annum;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business)100,000, or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company equipment is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased held or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xviv) any Contract providing that relating to the acquisition or disposition of (A) any business of the Company indemnify or any Person in an amount that would be other Persons (whether by merger, consolidation, or other business combination, sale of securities, sale of assets, or otherwise) or (B) any material to the Company, asset other than any such agreement entered into in the Ordinary Course of Business;
(xviivi) any other than the Ducommun Credit Agreement, all Contracts with any Governmental Authority relating to Indebtedness for borrowed money, including (A) under which the Company is a partyhas created, incurred, assumed, or guaranteed any Indebtedness (including any guarantee by the Company), (B) under which an Encumbrance has been or may be placed on any of the Company’s assets or products or the Leased Real Property, or (C) under which any other Person has guaranteed any Indebtedness of the Company;
(xviiivii) any all leases in respect of Leased Real Property;
(viii) all Contracts that limit, in any material respect, limit or purport to limit the ability of the Company to compete in any line of business or with any Person or in any geographic area or during any period of time;
(xixix) other than Contracts entered into in the Ordinary Course of Business, any Contract that provides for the indemnification by the Company of any Person or the assumption of any environmental or other liability of any Person;
(x) other than the Employee Plans, any employment, consulting, change of control, retention or severance Contract with any officer, consultant or employee;
(xi) any agency, dealer, manufacturer’s representative, franchise, distributor, sales representative, marketing or advertising Contract;
(xii) any collective bargaining agreements or Contract with any labor union;
(xiii) any Contract between or among the Company, on the one hand, and the Seller or any Affiliate of the Seller, on the other hand;
(xiv) any general or special power of attorney;
(xv) all (i) employment agreements (excludingmaterial joint venture, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (partnership or similar agreements or arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxixvi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)Company.
(b) The Each Material Contract is valid and binding on the Company is in all material compliance with the terms and provisions of each Material Contract. The Companyrespects and, and to the Knowledge of the Company, the other party to any counterparties thereto, and is in full force and effect unless such Material Contract is not in breach or default under any of has expired by its terms. The Company has is not received notice of any breachin material breach of, or material default or notice of termination by any Person under under, any Material Contract. A trueFor the avoidance of doubt, complete and correct copy delivery delays in the Ordinary Course of each written Material Contract has been provided to Purchaser and Business shall not constitute a description material breach of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. 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 for purposes of the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contractforegoing sentence.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Material Contracts. (a) Section 4.10(aExcept as set forth on Schedule 4.6(a) of the Company Disclosure Schedule sets forth a true, complete (together with all Real Property Leases and correct list of each of the following Contracts to which the Company is a party or by which the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectivelyAffiliate Agreements, the “Material Contracts”):) and other than this Agreement, as of the date of this Agreement, no Group Company is a party to or bound by any:
(i) all Contracts that contain restrictions with respect to payment Contract for the employment of dividends or any other distribution in respect of the Membership Units officer, individual employee or other Equity person on a full-time, part-time, consulting or other basis, or employment agreement, severance agreement or other agreement that require payments upon a “change in control” or similar payments covering any employee or director or former employee or director of the any Group Company;
(ii) commission and/or sales Contract with (A) any current employee, individual consultant, contractor or salesperson and pursuant to which the applicable Group Company made payments in excess of $100,000 during the eleven-month period ended November 30, 2010, (B) any partner of any Group Company or any distributor of any Company Products providing for the payment of any commissions or other sales compensation to any employees or agents of such partner or distributor and pursuant to which the applicable Group Company made payments in excess of $100,000 during the eleven-month period ended November 30, 2010, or (C) under which a firm or other organization provides commission or sales-based services to any Group Company pursuant to which the applicable Group Company made payments in excess of $100,000 during the eleven-month period ended November 30, 2010;
(iii) Contract that obligates any Group Company to provide indemnification or a guarantee (other than intercompany guarantees) that could result in payments in excess of $100,000;
(iv) Contract relating to Indebtedness (other than guarantees by way of endorsement or negotiable instruments in the ordinary course of business);
(v) Contract whereby any Group Company has guaranteed or otherwise agreed to cause, insure or become liable or indemnify for, or pledged any of its terms requires assets to secure, the performance or payment of, any obligation or other liability of any Person;
(vi) Contract relating to capital expenditures and involving future payments by or on behalf of the any Group Company in excess of $100,000 per annum in any individual case or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors 200,000 in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbranceaggregate;
(vii) all Contracts Contract under which any Person Group Company is lessee of or holds or operates any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of aggregate annual rental payments do not exceed $50,000100,000;
(viii) Contract under which any bonds Group Company is lessor of or Contracts of Guarantee in permits any third party to hold or operate any tangible property (other than real property), owned or controlled by any Group Company, except for any lease or agreement under which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Personaggregate annual rental payments do not exceed $100,000;
(ix) all Contracts involving Contract prohibiting any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Group Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from freely engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respectbusiness, or containing covenants that limit or purport to limit the ability of the any Group Company to (A) compete in any line of business or with any Person or in any geographic area area, (B) sell, supply, provide or during distribute any period service or product, (C) hire or solicit Persons for employment, (D) incur or guarantee any Indebtedness or to g▇▇▇▇ ▇ ▇▇▇▇ on the assets of timeany Group Company, or (E) use or enforce any Group Company IP Rights, including, in each case, any nondisclosure, non-competition, settlement, coexistence, standstill or confidentiality agreements;
(xixx) all (i) employment agreements (excluding, for certainty, collective bargaining agreement or other Contract with any employees who are employed at will) and (ii) collective bargaining representative or other Contracts with independent contractors or consultants (a labor union, labor organization or similar arrangementsbody;
(xi) Contract pursuant to which any Group Company (a) grants a third Person a license to use any Group Company IP Rights (other than standard form software as a service agreements in a form substantially similar to those that the Company is has made available to Parent prior to the date hereof) or (b) receives a license to use any benefit from any Intellectual Property of any third party and which are not cancellable without material penalty (other than licenses for commercially available non-custom software or without more data services available on standard terms or involving annual payments to or from the Group Companies less than ninety (90) days’ notice; and$100,000);
(xxxii) settlement or similar Contract pursuant to which any Group Company is obligated to pay consideration in excess of $150,000 after the date hereof;
(xiii) Contract that relates to purchaseany prior (within the past five years) or future disposition or acquisition of properties, lease of assets or of any interest in any business enterprise valued in excess of $100,000 by any Group Company, or any merger or business combination with respect to any Group Company;
(xiv) powers of attorney (other than powers of attorney given in the ordinary course of business);
(xv) Contract (A) providing for any Group Company to be the exclusive provider of any product or service to any Person or that otherwise acquire involves the granting by any Person to any Group Company of exclusive rights of any kind, (B) providing for any Person to be the exclusive provider of any product or services to any Group Company or that otherwise involves the granting by any Group Company to any Person of exclusive rights, (C) granting to any Person a right to own, use of first refusal or lease right of first offer on the sale of any property or assets, including such Contracts entered into by an Affiliate part of the business of any Group Company, (D) containing a provision of the type commonly referred to as “most favored nation” provision for the benefit of a Person other than any Group Company, or (E) pursuant to which any Group Company has agreed to provide services for a fixed price or maximum fee, or pursuant to any cap or other provision that provides for payment other than on an unrestricted “time and materials” basis and pursuant to which any Group Company expects to accrue revenue in excess of $100,000 during any twelve (12) month period after the date hereof;
(xvi) Contract that obligates any Group Company to pay an amount in excess of $200,000 during the twelve (12) month period after the date hereof;
(xvii) dealer, distribution, joint marketing (including any pilot program), development, content provider, destination site or merchant Contract involving annual payments to or from the Group Companies in excess of $100,000;
(xviii) joint venture, individually partnership, strategic alliance, funding or other Contract involving the sharing of profits, losses, costs or liabilities with any Person or any development, data-sharing, marketing, resale, distribution or similar arrangement relating to any product or service involving annual payments to or from the Group Companies in excess of $100,000;
(xix) Contract pursuant to which any Group Company has granted or may be obligated to grant in the future, to any Person, a source code license or option or other right to use or acquire source code, including any agreements that provide for source code escrow arrangements, that is owned by any Group Company and that is material to the Group Companies taken as a whole;
(xx) sales representative, original equipment manufacturer, value added re-seller, remarketer or other Contract for distribution of products or services of any of the Group Companies, or the products or services of any other Person, in each case pursuant to which the Group Companies paid the counterparty thereto in excess of a lease, per annum) or $150,000 100,000 in the aggregate eleven month period ended November 30, 2010;
(xxi) Contract with any customer or third party to provide support or maintenance, including for any third-party product, service or platform involving annual payments to or from the Group Companies in the case excess of a lease, $100,000;
(xxii) Contract providing for the entire term use, disclosure or sale of any Personal Information other than customer agreements based on the lease, not including Company’s standard form;
(xxiii) Contract with any option termGovernmental Entity (a “Government Contract”); and
(xxixxiv) Contract (including any other Contract end-user licenses) with any customer or client of the Group Companies that is material provides for the payment to the operation Group Companies in excess of $200,000 in the business of twelve (12) month period following the Company and not otherwise disclosed pursuant to this Section 4.10(a)date hereof.
(b) The Company Except as set forth on Schedule 4.6(b), each Material Contract is in material compliance full force and effect and is valid and binding on the applicable Group Company and enforceable in accordance with the its terms and provisions of each Material Contract. The Companyagainst such Group Company and, and to the Knowledge of the Company, the each other party thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity). Except as set forth on Schedule 4.6(b), neither any Material Contract is not in breach or default under Group Company, nor, to the Company’s Knowledge, any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, is currently in breach in any respect of any of the terms and conditions of any Material Contract except where any such breach has not been or would not be, individually or in the aggregate, material. Except as set forth on Schedule 4.6(b), no Group Company has received any notice of the other hand, with respect intention of any party to the subject matter thereof. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under terminate any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of to exercise any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contract.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or option not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreementrenew thereunder.
Appears in 1 contract
Material Contracts. (a) Section 4.10(aSet forth in Schedule 4.13(a) of the Company Disclosure Schedule sets forth is a true, complete and correct list of each of the following Contracts to which the each Company is a party or by which the Company it or any of its properties or assets is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):bound:
(i) all Contracts that contain restrictions with respect each power of attorney from or to payment of dividends or any other distribution in respect of the Membership Units or other Equity of the Company;
(ii) each Contract, commitment or arrangement relating to the acquisition of substantially all of the assets or capital stock of any business enterprise;
(iii) each Contract under which any Company is or would reasonably be expected to become obligated to pay in excess of $20,000 in respect of deferred or conditional purchase price (other than ordinary trade terms), indemnification obligations, purchase price adjustments or otherwise;
(iv) each partnership or joint venture Contract;
(v) each Contract limiting the right of any Company to engage in or compete with any Person in any business or in any geographical area;
(vi) each management or consulting Contract that by its terms requires any Company to make payments equal to more than $20,000 per annum;
(vii) each Contract with respect to the employment, severance, retention, compensation or termination of any directors, officers, managers, employees or consultants involving the payment of more than $20,000 per annum, and each change of control agreement with any of the directors, officers, employees or consultants of any Company;
(viii) each collective bargaining agreement;
(ix) each Contract with respect to Company Debt having outstanding principal amount in excess of $20,000;
(x) each fidelity or surety bond or completion bond;
(xi) each lease of personal property having a value individually in excess of $20,000 per annum;
(xii) each Contract or commitment relating to future capital expenditures and involving future payments or receipts in excess of $20,000 per year;
(xiii) each Contract or commitment relating to the disposition of assets outside the ordinary course of business consistent with past practice;
(xiv) each Contract providing for the distribution of product by or on behalf of the any Company in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides providing for the Company to receive annual payments in excess of $100,000 per annum;
50,000 and which cannot be terminated on less than one hundred and twenty (iii120) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholdersdays’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, notice without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Companypenalty;
(xv) all collective bargaining agreements entered into by each Contract or series of Contracts (not otherwise required to be disclosed in Schedule 4.13(a)) involving payments to or from any Company equal to more than $25,000 per annum or more than $50,000 in the Companyaggregate and which cannot be terminated on less than one hundred and twenty (120) days’ notice without penalty;
(xvi) each other material Contract pursuant to which any Contract providing that the Company indemnify is a party or by which any Person in an amount that would Company is bound having a term longer than twelve (12) months and which cannot be material to the Company, other terminated on less than any such agreement entered into in the Ordinary Course of Businessone hundred and twenty (120) days’ notice without penalty;
(xvii) any Contracts each Contract (including outstanding purchase orders) with any Governmental Authority to which the Company is a partyMaterial Customers and Material Suppliers;
(xviii) each material Contract relating to Intellectual Property of any Contracts that limitCompany and material Intellectual Property of third parties licensed or sublicensed to or used by any Company, including each material Contract relating to the payment of royalties or other payments to or from third parties in any material 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 timerespect thereof;
(xix) all (i) employment agreements (excluding, for certainty, each Contract with any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; andGovernmental Authority;
(xx) any Contract to purchase, lease or otherwise acquire open purchase orders constituting the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate twenty (20) largest dollar amounts as of the Company, for an amount in excess Agreement Date that are on the customer’s form of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); andpurchase order;
(xxi) any other Contract that is or could reasonably be expected to otherwise be material to the operation Business of any Company or the Companies taken as a whole; and
(xxii) each amendment, supplement or modification in respect of any of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)foregoing Contracts.
(b) The Company is in material compliance with the terms and provisions of each Material Contract. The Company, and Contracts required to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is be set forth in Section 4.10(a) Schedule 4.13(a), together with the Real Property Leases, are referred to herein as the “Material Contracts.” The Companies and the Stockholders have delivered to Buyer a true and complete copy or, in the case of oral Contracts, a written summary, of each of the Company Disclosure Schedule.
Material Contracts. Each of the Material Contracts and Insurance Policies is, and shall be upon the Closing (c) Each Material Contract is (i) valid and binding on without requiring the Company party thereto in accordance with its respective terms and (ii) Consent of any third party), in full force and effect. Each Material Contract (or description) sets forth the entire effect and a legally valid and binding agreement and understanding (or complete description of the material terms, as applicable), between the each Company, on one handand, and to the Sellers’ Knowledge, against the other parties thereto, on the other handand there is no default or breach by any Company, with respect or, to the subject matter Sellers’ Knowledge, any other party, in the timely performance of any obligation to be performed or paid thereunder or any other material provision thereof. No , and no event or circumstance has occurred thatwhich, with notice or lapse of time or bothtime, would constitute an event such a default or breach. No Company nor, to the Sellers’ Knowledge, any other party has repudiated any provision 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. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contract.
(d) The Company has no Liability for . Each Material Contract that contains a change in control clause or otherwise requires the deferred purchase price of property, goods or services, whether connected or not to the acquisition Consent of any business (earn-out Person in connection with this Agreement or other similar type any of payments) or noncompetition agreementthe transactions contemplated hereby is appropriately identified as such on Schedule 4.13(b).
Appears in 1 contract
Sources: Asset Purchase Agreement (Unique Fabricating, Inc.)
Material Contracts. (a) Section 4.10(a) of the Company Disclosure Schedule 5.12, sets forth a true, complete and correct list of each of the following Contracts agreements, whether written or oral (each, a “Contract”), to which the Company or its Subsidiaries is a party or by to which the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):any of their assets are bound:
(i) all Contracts that contain restrictions any Contract with respect to payment of dividends any Material Customer or any other distribution in respect of the Membership Units or other Equity of the CompanyMaterial Supplier;
(ii) any Government Contract that by its terms requires the payment by or on behalf of the Company in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annumGovernment Bid;
(iii) all Contracts involving a any trust indenture, mortgage, promissory note, loan (or other than accounts receivable owing from trade debtors in Contract for the Ordinary Course borrowing of Business) money, any currency exchange, commodities or advance to (other than travel and entertainment advances to the employees hedging arrangement or any leasing transaction of the Company extended type required to be capitalized in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000accordance with GAAP;
(iv) any Contract that (i) requires the Company containing a covenant not to purchase any product ▇▇▇ or service in excess of $100,000 from a third party limiting, or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates purporting to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability of the Company to compete in any line of business or with any Person or in any geographic area or market or to solicit or hire any Person;
(v) any Contract that limits, or purports to limit, the ability of the Company to hire or attempt to hire any Person, excluding non-solicitation agreements entered into in the ordinary course of business;
(vi) any settlement agreement executed by the Company since January 1, 2019 and related to any Proceeding;
(vii) all Contracts licensing Intellectual Property to or from the Company, and all other agreements affecting the Company’s ability to use or disclose any Intellectual Property (other than licenses for generally available commercial, unmodified, “off the shelf” software used solely for the Company’s own internal use);
(viii) each Related Party Agreement;
(ix) each Contract providing for the purchase, maintenance or acquisition, of materials, supplies, merchandise, goods, services, equipment or other assets that provides for either (A) annual payments by the Company of $50,000 or more, or (B) aggregate payments by the Company of $100,000 or more;
(x) each Contract providing for the sale or furnishing by the Company of materials, supplies, merchandise, goods, services, equipment or other assets that provides for either (A) annual payments to the Company of $50,000 or more or (B) aggregate payments to the Company of $100,000 or more;
(xi) each Contract granting to any Person an option, first-refusal, first-offer or similar preferential right to purchase or acquire any right, asset or property of the Company or its Subsidiaries;
(xii) each Contract providing for any offset, countertrade or barter arrangement;
(xiii) each Contract containing a “most favored nation” pricing agreement, special warranties, agreements to take back or exchange goods, commitments to exclusively purchase or supply products or services from or to a particular vendor or customer, minimum purchase commitments, take or pay provisions, consignment arrangements or similar understandings with a customer or supplier;
(xiv) each Contract involving a sales representative, broker or advertising arrangement, distributor, sales representative, reseller, or agency representative;
(xv) each Contract involving a joint venture or partnership or involving the sharing of profits, losses, costs or Liability by the Company with any other Person;
(xvi) each Contract involving management services, consulting services, support services or any other similar services;
(xvii) each Contract involving the acquisition or disposition of any Person or business enterprise entered into at any time during the seven (7) years preceding the Closing Date;
(xviii) each Contract granting a power of attorney to any period of timePerson;
(xix) each Contract which the performance of, together with all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) other Contracts with independent contractors the same party or consultants (or similar arrangements) to which group of affiliated parties, involves consideration in the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; andaggregate in excess of $100,000;
(xx) any Contract providing for warranty or indemnity terms obligating the Company with respect to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of its services and business (excluding customer agreements that do not materially deviate from the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term’s standard forms); and;
(xxi) each Contract with any independent contractor or any similar service provider;
(xxii) any requirements Contract;
(xxiii) any collective bargaining Contract or other Contract with labor unions;
(xxiv) any lease or other Contract relating to the Leased Real Property;
(xxv) any lease of personal property providing for annual rentals of $25,000 or more; and each other Contract that is material to the operation of the business of the Company (the Contracts described in clauses (i)-(xxv), each a “Material Contract” and not otherwise disclosed pursuant to this Section 4.10(acollectively, the “Material Contracts”).
(b) The Company is in material compliance with has provided to the terms Purchaser true, correct and provisions complete copies of each Material Contract. The CompanyExcept as disclosed on Disclosure Schedule 5.12, each Material Contract is a legal, valid, binding and enforceable obligation of the Company and, to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breachparties thereto, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto enforceable in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable)subject to applicable bankruptcy, between the Companyinsolvency, on one handreorganization, moratorium, liquidation, fraudulent conveyance and the other parties theretosimilar Laws and principles of equity affecting creditors’ rights and remedies generally. There exists no material default or event of material default or material event, on the other handoccurrence, condition or act, with respect to the subject matter thereof. No Company or, to the Company’s Knowledge, with respect to the other contracting party or otherwise, that, with or without the giving of notice, the lapse of the time or the happening of any other event or circumstance condition, constitutes a default or breach by such Person thereunder or would reasonably be expected to (a) become a default or event of default under or breach or violation of any of the Material Contracts or (b) result in the loss or expiration of any right or option by the Company (or the gain thereof by any third party) under any of the Material Contracts. Upon the consummation of the transaction set forth herein, each Material Contract shall continue in full force and effect without penalty or other adverse consequence. With respect to each Material Contract: (i) neither the Company nor, to the Knowledge of the Company, any other party thereto is in default under, or in violation of, such Material Contract and no event has occurred that, with notice or lapse of time or both, would constitute an event of such a 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. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respectsviolation, and (ii) the Company has not received released any notice of termination or intent to terminate by any its rights under such Material Contract; and (iii) no party to such Material Contract has repudiated any of the terms thereof or threatened in writing to terminate, cancel or not renew such Material Contract.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Material Contracts. (a) Section 4.10(aAs of the date hereof, the Company is not a party to, nor is it or any of its assets or properties bound by:
(i) any employment, independent contractor or consulting Contract (in each case, under which the Company has continuing obligations as of the date hereof) with any employee, independent contractor or director of the Company Disclosure Schedule sets forth a trueother than Contracts with contractors or consultants that can be terminated without material penalty upon notice of ninety (90) days or less or offer letters and employment agreements entered into in the ordinary course of business consistent with past practice with employees, complete independent contractors or directors who are not officers and correct list are terminable “at will” without the Company incurring any material liability or obligation;
(ii) any Employee Agreement providing for the payment of each annual compensation in excess of $100,000;
(iii) any fidelity or surety bond or completion bond;
(iv) any lease of personal property requiring future payments in excess of $50,000 individually or $100,000 in the aggregate;
(v) any Contract of guarantee, support, indemnification, assumption or endorsement of, or any similar commitment with respect to, the Liabilities or Indebtedness of any other Person;
(vi) any Contract relating to capital expenditures and requiring future payments in excess of $50,000 individually or $100,000 in the aggregate;
(vii) any Contract relating to the disposition or acquisition of assets and properties or any interest in any business enterprise outside the ordinary course of business;
(viii) any Contract limiting the freedom of the following Contracts Company to engage in any line of business or to compete with any person, including any Contract under which the Company is restricted from selling, licensing, manufacturing or otherwise distributing any of its technology or products or from providing services to customers or potential customers or any class of customers, in any geographic area, during any period of time, or in any segment of the market;
(ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to Indebtedness or any currency exchange, commodities or other hedging arrangement;
(x) any purchase order or Contract for the purchase of materials requiring future payments in excess of $50,000 individually or $100,000 in the aggregate;
(xi) any dealer, distribution, joint marketing or development Contract;
(xii) any sales representative, original equipment manufacturer, manufacturing, value added, remarketer, reseller, independent software vendor or other Contract for use or distribution of the products, technology or services of the Company; or
(xiii) any other Contract requiring future payment obligations in excess of $100,000 (either alone or pursuant to a party or by which series of related contracts) other than purchase orders entered into in the Company ordinary course of business.
(b) Each Contract that is bound and which have not been entirely fulfilled or performed required to be disclosed pursuant to Section 3.16 (such Contracts, collectively, the “Material Contracts”):
(i) all Contracts that contain restrictions with respect to payment of dividends or any other distribution in respect of the Membership Units or other Equity of the Company;
(ii) any Contract that by its terms requires the payment by or on behalf of the Company in excess of $100,000 per annum or the delivery by the Company of goods or services with is a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel valid and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any binding agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company and is in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor full force and effect with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any mannerand, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material 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;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a).
(b) The Company is in material compliance with the terms and provisions of each Material Contract. The Company, and to the Knowledge of the Company, the any other party thereto, except to the extent that its enforceability may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally and by general equitable principles. None of the Company or, to the Knowledge of the Company, any Material Contract other party thereto is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice breach in any material respect under the terms of termination by any Person under any Material Contract. A true, complete and correct copy and, to the Knowledge of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No no event or circumstance has occurred that, with notice or lapse of time or both, would could be reasonably be expected to constitute an any material event of default under any thereunder. Complete and accurate copies of each Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason have been made available to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material ContractParent.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Sources: Merger Agreement (Presstek Inc /De/)
Material Contracts. (a) Section 4.10(a) 2.10 of the Company Disclosure Schedule sets forth a true, correct and complete and correct list of each of all Contracts that are material to the following Contracts Companies’ Business, as it is presently conducted and proposed by the Companies to which the Company is a party or by which the Company is bound and which have not been entirely fulfilled or performed be conducted (such Contracts, collectively, the “Material Contracts”):). Without in any way limiting the generality of such term, the Material Contracts include:
(i) all Contracts that contain restrictions with respect each Contract providing for the performance of services or delivery of goods or materials by or to payment customers of dividends or suppliers to any other distribution in respect of the Membership Units Companies that provides for consideration to be furnished to or other Equity by any of the CompanyCompanies of value in excess of one hundred thousand dollars ($100,000) during calendar year 2009 (after giving effect to automatic, customary or routine renewals to any such Contract), in each case identifying each such Contract that is with a sole source supplier;
(ii) any each lease or sublease or other rental or occupancy Contract that by its terms requires the payment by or on behalf of the Company in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive involving aggregate payments in excess of twenty-five thousand dollars ($100,000 per annum25,000) during calendar year 2009;
(iii) all Contracts involving a loan (each licensing or other than accounts receivable owing from trade debtors in Contract granting the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business)Companies, or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority pursuant to which the Company is a party;
(xviii) Companies has granted to any Contracts that limitPerson, in any material 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;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract Intellectual Property that is material to the operation of the business Business;
(iv) each Contract to make a capital expenditure in excess of fifty thousand dollars ($50,000) with respect to the Business;
(v) each Contract to sell, lease or otherwise dispose of any assets or properties of the Company Companies in excess of fifty thousand dollars ($50,000) in the aggregate, other than sales of inventory in the ordinary course of business;
(vi) each collective bargaining agreement with any labor union or other employee representative of a group of employees relating to wages, hours and other conditions of employment;
(vii) each joint venture agreement, partnership agreement or limited liability company agreement to which any of the Companies is a party;
(viii) each Contract that limits the right of the Companies to compete in any industry or geographic area;
(ix) each Contract that obligates any of the Companies to clean up or remediate any Hazardous Substances;
(x) each Contract relating to the acquisition or disposition of any business, or any operating division, business unit or product line thereof (whether by merger, consolidation, reorganization, acquisition of assets or otherwise);
(xi) all Contracts relating to Indebtedness of the Business, or pursuant to which any of the Companies guarantees, indemnifies or otherwise agrees to support the obligations of, any other Person, other than trade payables incurred by any of the Companies in the ordinary course of its business consistent with past practice;
(xii) all Contracts with employees, independent contractors or consultants of any of the Companies; and
(xiii) each other Contract not otherwise disclosed listed pursuant to this Section 4.10(athe preceding clauses (i) through (xii), that creates future payment or performance obligations by any of the Companies that requires consideration to be furnished to or by any of the Companies of value in excess of fifty thousand dollars ($50,000) during calendar year 2009 or any calendar year thereafter, respectively and which by its terms is not terminable by any of the Companies on ninety (90) days’ notice or less without penalty to any of the Companies.
(b) The Company is in material compliance with the terms and provisions of each Material Contract. The Company, and to the Knowledge Each of the Company, the other party to any Material Contract Contracts is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description obligation of the material termsCompanies, as applicable)enforceable against the Companies and, between to the CompanyCompanies’ Knowledge, on one hand, and the other parties thereto, on the other hand, with respect subject to the subject matter thereofEquitable Exceptions. No event or circumstance has occurred thatExcept as set forth on Section 2.10(b) of the Disclosure Schedule, with notice or lapse none of time or both, would constitute an event the Companies is in breach of default under any Material Contract or result nor, to the Companies’ Knowledge, is any other party thereto 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 thereunderbreach thereof. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contract.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not Sellers have supplied to the acquisition Purchaser complete and accurate copies of any business (earn-out or other similar type each of payments) or noncompetition agreementthe Material Contracts.
Appears in 1 contract
Sources: Purchase Agreement (Global Telecom & Technology, Inc.)
Material Contracts. (a) Section 4.10(a3.11(a) of the Company Disclosure Schedule Schedules sets forth a truecorrect and complete list, complete and correct list organized by the categories set forth below, of each of the following Contracts (or a description of the material terms thereof, in the case of oral Contracts) to which the Company Corporation is a party or by which the Company is it or any of its properties, rights or assets are bound and which have not been entirely fulfilled or performed (such Contractswhich, collectivelyexcept as otherwise provided below, are in effect on the “Material Contracts”):date hereof:
(i) any Contract that is or is reasonably likely to require expenditures (including capital expenditures) or payments to or from the Corporation in excess of $50,000, individually or in the aggregate, in any calendar year, other than those that can be terminated without premium or penalty by the Corporation upon not more than sixty (60) days’ notice;
(ii) all Contracts that involving any material resolution or settlement of any actual or threatened, litigation, arbitration, claim or other dispute;
(iii) all Contracts which contain restrictions with respect to the payment of dividends or any other distribution in respect of the Membership Units or other Equity Interests of the CompanyCorporation;
(iiiv) all Contracts pursuant to which the Corporation has an obligation to make an investment in or loan to any Person, in each case, other than in the ordinary course of the origination or loan servicing businesses of the Corporation consistent with past practice;
(v) any Contract under which the Corporation is obligated to sell or lease as lessor real or personal property having a value in excess of $50,000 in any single given annual period;
(vi) any Contract that contains a covenant not to compete applicable to the Corporation or any of its Affiliates by its terms requires virtue of such affiliation or that binds the payment by Corporation to any exclusive business arrangements or on behalf licenses;
(vii) any Contract granting a customer of the Company Corporation “most favored nation” or similar terms (whether in excess respect of $100,000 per annum pricing or the delivery otherwise);
(viii) any management, distributor, consultant, representative, financial advisory, broker or similar type of Contract and any Contract with any investment or commercial bank, that is not terminable by the Company Corporation at will and without liability;
(ix) any joint venture, partnership, strategic alliance or teaming Contract or other similar co-ownership or joint management agreements involving a sharing of goods profits, losses, costs or services liabilities by the Corporation with any Person (other than the Corporation);
(x) any Contract under which the Corporation has (A) created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) (x) indebtedness for borrowed money, including, without limitation Warehouse Facilities and/or any financing arrangements with respect to the Servicing Rights and Servicing Advances of the Corporation (“Existing Financing Facilities”), or (y) other Indebtedness which, individually or in the aggregate, exceeds $50,000, (B) granted a Lien, other than Permitted Liens, on its assets, whether tangible or intangible, to secure Indebtedness or (C) extended credit to any Person;
(xi) any Affiliate Contract and any Contract between Seller or its Related Persons, on the one hand, and any employee, on the other hand;
(xii) any collective bargaining, labor or similar Contract and any Contract between the Corporation and any third party provider of employee management services, including employee benefits, payroll and workers’ compensation, recruiting, risk/safety management, and training and development.
(xiii) any Contract related to Intellectual Property used in the operation of the Corporation’s business, other than unmodified, commercially available, off-the-shelf, shrink-wrap, click-wrap or non-exclusive software licenses with an aggregate value of less than $100,000;
(xiv) any Contract with any Agency or Governmental Entity (whether as prime contractor, subcontractor or otherwise), including any performance bonds or similar arrangements related thereto;
(xv) any stock purchase, asset purchase, merger, consolidation or other acquisition or divestiture agreement relating to the acquisition, lease, license, disposition or consolidation by the Corporation of assets (other than in the ordinary course of business consistent with past practice), properties, rights or any capital stock or other Equity Interests of any Person (x) providing for any indemnification, guaranty or surety obligation of the Corporation or (y) with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material relating to the Companyestablishment, other than management or control of any such agreement entered into in the Ordinary Course of Businessjoint venture or strategic alliance;
(xvii) any Contracts with any Governmental Authority to which the Company is a partyServicing Agreement;
(xviii) any Contracts that limit, in any material 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 timeSubservicing Agreement;
(xix) all any Warehouse Facility not disclosed under subsection (ix) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) above to which the Company is Corporation was a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; andat any time since January 1, 2010;
(xx) any Contract Interest Rate Protection Agreement or Other Hedging Agreement to purchasewhich the Corporation is currently a party, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate together with a description of the Companydollar amount, for an amount in excess counterparty, collateral, and maturity of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); andsuch agreement;
(xxi) any other Contract that with an Investor to which the Corporation is material currently a party or, since January 1, 2010 was a party, providing for the sale by the Corporation to such Investor of one or more Mortgage Loans originated by the operation Corporation;
(xxii) any Contract the termination of which would reasonably be expected to have a Material Adverse Effect; and
(xxiii) any outstanding written commitment to enter into any Contract of the business type described in subsection (i) through (xxii) of this Section 3.11(a). All Contracts set forth in Section 3.11(a) of the Company Disclosure Schedules and not otherwise disclosed pursuant any Contract required to this Section 4.10(abe set forth therein, but omitted therefrom are referred to herein as “Material Contracts.” The Corporation has made available to Buyer a correct and complete copy of each Material Contract (including any and all amendments and other modifications to such Contract).
(b) The Company Each Material Contract is in material compliance with full force and effect and is the terms legal, valid and provisions binding obligation of each Material Contract. The Companythe Corporation, and is enforceable against the Corporation in accordance with its terms (subject to bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium and other laws of general application affecting the rights and remedies of creditors and general principles of equity) and, to the Knowledge of the CompanyCorporation, is the legal, valid and binding obligation of the other party parties thereto (the “Other Parties”), and neither the Corporation nor, to the Knowledge of the Corporation, any of the Other Parties to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default violation or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one handdefault, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No no event or circumstance has occurred that, which with notice or lapse of time or both, both would constitute an event of a breach, violation or default by any such party, or permit termination, modification or acceleration by the Other Parties, under such Material Contract.
(c) The Corporation has not waived any material right it may have under any Material Contract Contract. No party has provided any written or result in a termination thereof or would cause or permit the acceleration or other changes oral notice of any right intention to terminate, materially modify or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to accelerate any Material Contract.
(d) The Company has Except as set forth in Section 3.11(d) of the Disclosure Schedules, no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition consent of any business (earn-out or other similar type party to any Material Contract is required in connection with the performance of payments) or noncompetition agreementthis Agreement.
Appears in 1 contract
Material Contracts. Except for (i) this Agreement and the Transaction Agreements, (ii) those agreements filed as an exhibit to the SEC Reports or (iii) which individually or in the aggregate are not material to the Company's or any of the Subsidiaries' businesses, as of the date of this Agreement, neither the Company nor any of the Subsidiaries are a party to or bound by:
(a) Section 4.10(aany trust indenture, mortgage, promissory note, loan agreement or other contract for the borrowing of money, any currency exchange, commodities or other hedging arrangement (other than any such arrangement entered into for bona fide hedging purposes) or any leasing transaction of the type required to be capitalized in accordance with Statement of Financial Accounting Standards No. 13 of the Financing Accounting Standards Board;
(b) any contract for capital expenditures in excess of two hundred fifty thousand dollars ($250,000) in the aggregate;
(c) any contract limiting the freedom of the Company Disclosure Schedule sets forth a trueto engage in any line of business, complete and correct list to acquire any material product or asset from any other Person outside the ordinary course of each business, to sell any material product or asset outside the ordinary course of business to, perform any material service outside the following Contracts ordinary course of business, or to compete with any other Person;
(d) any contract pursuant to which the Company is a party lessor of real property or by which of any machinery, equipment, motor vehicles, office furniture, fixtures or other personal tangible property involving in the case of any such personal property contract more than one hundred thousand dollars ($100,000) over the life of the contract;
(e) any material contract with any Person with whom the Company is bound and does not deal at arm's length;
(f) any contract which have not been entirely fulfilled provides for the indemnification of any officer, director, employee or performed agent;
(such Contracts, collectively, the “Material Contracts”):g) any guarantee of indebtedness of any other Person;
(h) any contract with or commitment to any labor union;
(i) all Contracts that contain restrictions with respect to payment of dividends or any other distribution in respect of the Membership Units or other Equity of the Company;
(ii) any Contract that by its terms requires the payment by or on behalf of the Company in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining contract between the Company or any successor thereto from engaging of the Subsidiaries and any Governmental Authority, where the amount of fees involved, or competing in any mannerthe amount of services to be provided, in any location or in any businessexceeds five hundred thousand dollars ($500,000);
(xii) all Affiliate Contracts;
(xiiij) any Company IP Agreements as well as any Contract under which contract or commitment for or relating to the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation employment of any Real Property ownedofficer, leased employee or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability consultant of the Company to compete in or any line other type of business contract or understanding with any Person officer, employee or in any geographic area or during any period consultant of time;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants the Company that is not immediately terminable (or similar arrangementsterminable within thirty (30) to which days or less in the case of consultants) by the Company is a party and which are not cancellable without material penalty cost or without more than ninety (90) days’ noticeother liability; and
(xxk) any Contract joint venture or partnership contract or other agreement which has involved, or is reasonably expected to purchaseinvolve, lease a sharing of profits, expenses or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) losses with any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)party.
(b) The Company is in material compliance with the terms and provisions of each Material Contract. The Company, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. 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. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contract.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Sources: Securities Purchase Agreement (National Technical Systems Inc /Ca/)
Material Contracts. (a) Section 4.10(aSchedule 4.10 discloses all contracts, whether written or oral, described in clauses (i) of the Company Disclosure Schedule sets forth a true, complete and correct list of each of the following Contracts through (xviii) below to which the Company or a Company Subsidiary is a party or by which the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):
(i) all Contracts each employment agreement that contain restrictions with respect to payment has an aggregate future liability in excess of dividends $100,000 and is not terminable by the Company or any other distribution in respect a Company Subsidiary by notice of the Membership Units or other Equity not more than 60 days for a cost of the Companyless than $100,000;
(ii) any Contract that by its terms requires each covenant not to compete or other contract or agreement restricting the payment by business or on behalf operations of the Company or any Company Subsidiary or, to the knowledge of the Company, restricting any of their respective executive officers or directors;
(iii) each contract or agreement with any officer in which the amount involved exceeds $60,000 (other than employment agreements covered by clause (i) above);
(iv) each contract or agreement under which the Company or a Company Subsidiary has borrowed or agreed to borrow any money from, or issued any note, bond, debenture or other evidence of indebtedness to, any person or any other note, bond, debenture or other evidence of indebtedness of the Company or a Company Subsidiary in any such case which, individually, is in excess of $100,000;
(v) each contract or agreement under which (A) any person has directly or indirectly guaranteed indebtedness, liabilities or obligations of the Company or a Company Subsidiary in excess of $100,000 per annum or the delivery by (B) the Company or a Company Subsidiary has directly or indirectly guaranteed indebtedness, liabilities or obligations of goods any other person (in each case other than endorsements for the purpose of collection in the ordinary course of business);
(vi) each contract or services with agreement under which the Company or a fair market value Company Subsidiary has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to any person in excess of $100,000 per annum (other than the Company or provides a Company Subsidiary and other than extensions of trade credit in the ordinary course of business);
(vii) each contract or agreement granting a Lien securing indebtedness in excess of $100,000 upon any Company Property or any other asset of the Company or any Company Subsidiary;
(viii) each contract or agreement providing for indemnification of any Person with respect to liabilities relating to any current or former business of the Company, a Company Subsidiary or any predecessor person, other than ordinary course indemnification provisions in contracts not specifically entered into for the Company to receive purpose of providing indemnification;
(ix) each contract or agreement with any Governmental Entity in which the amount involved exceeds $100,000;
(x) each franchise agreement;
(xi) each supplier agreement requiring payments in excess of $100,000 250,000 per annumyear;
(iiixii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) each contract or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving for any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development partnership or similar arrangement;
(xxiii) all Contracts involving any resolution or settlement each power of attorney granted in favor of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licenseePerson;
(xiv) any Contract concerning each contract, agreement or commitment involving capital expenditure of more than $250,000, other than replacements and normal purchases of machinery in the acquisition, disposition, occupancy, management or operation ordinary course of any Real Property owned, leased or used by the Companybusiness;
(xv) all collective bargaining agreements entered into by the Companyeach foreign exchange contract;
(xvi) each contract or agreement requiring any Contract providing that payment upon a change of control of the Company indemnify or any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of BusinessCompany Subsidiary;
(xvii) any Contracts with any Governmental Authority to each contract or agreement the terms of which the Company or any Company Subsidiary is a partyor will be bound to share its profits or pay any royalties;
(xviii) any Contracts that limit, in any material respect, the ability of each contract or agreement under which the Company or a Company Subsidiary has agreed to compete purchase or lease any real property or any interest in real property for a purchase price in excess of $500,000 or an annual base rental in excess of $100,000 or to construct any line improvements on real property or a leasehold interest in real property for a contract sum in excess of business or with any Person or in any geographic area or during any period of time;$500,000; or
(xix) all any derivative contract (iincluding swaps, options and forwards) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to under which the Company is a party and which are not cancellable without material penalty or without any Company Subsidiary has an exposure of more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)25,000.
(b) The All Material Contracts are valid, binding and enforceable by or against the Company is or the applicable Company Subsidiary in material compliance accordance with the terms and provisions of each Material Contract. The Companytheir respective terms, and and, to the Knowledge knowledge of the Company, are in full force and effect in all material respects. The Company or the applicable Company Subsidiary has performed all material obligations required to be performed by it to date under the Material Contracts, and, except as set forth on Schedule 4.10, it is not (with or without the lapse of time or the giving of notice, or both) in breach or default in any material respect thereunder and, to the knowledge of the Company, no other party to any Material Contract is not (with or without the lapse of time or the giving of notice, or both) in breach or default under in any material respect thereunder. Except as set forth on Schedule 4.10, none of its terms. The the Company and the Company Subsidiaries has not received any written notice of the intention of any breach, default or notice of termination by any Person under party to terminate any Material Contract. A true, complete Complete and correct copy copies of each written all Material Contract has Contracts, together with all modifications and amendments thereto, have been provided made available to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure ScheduleParent.
(c) Each Material Contract is (iSchedule 4.10(c) valid and binding on lists all sub-franchise agreements that any franchisee of the Company party thereto in accordance with its respective terms and or any Company Subsidiary (iiother than any franchisee that is a Company Subsidiary) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description has entered into of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. 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. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and which the Company has not received or any notice of termination or intent to terminate by any party to any Material ContractCompany Subsidiary is aware.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Sources: Merger Agreement (Worldwide Restaurant Concepts Inc)
Material Contracts. (a) Section 4.10(a) of the Company Disclosure Schedule sets forth 2.14 contains a true, complete and correct accurate list of each all Contracts of the following Contracts categories to which any of the Company Terminals Companies is a party or by which the Company any of them is bound and which have not been entirely fulfilled or performed as of the date of this Agreement (such Contracts, collectively, the “"Material Contracts”"):
(i) all Contracts that contain restrictions with respect to payment of dividends or any other distribution in respect of the Membership Units or other Equity of the Company;
(ii1) any Contract that by its terms requires the payment by or on behalf of the Company in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides continuing contracts for the Company to receive payments in excess purchase of $100,000 per annum;
(iii) all Contracts involving a loan materials, supplies, or equipment (other than accounts receivable owing from trade debtors purchase contracts and orders for inventory in the Ordinary Course ordinary course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Businessbusiness consistent with past practice), (2) management, service, consulting, or investment inother similar types of contracts or (3) advertising agreements or arrangements, any Person or any agreement relating to the making of in any such loan, advance or investment in excess of $25,000;
(iv) any Contract case that (i) requires the Company have an aggregate committed future liability to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the applicable Terminals Company) in excess of $1,000,000 and that is not terminable by the applicable Terminals Company by notice of not more than 60 days for a cost of less than $1,000,000;
(ii) material Intellectual Property licenses (including any license or other agreement under which the applicable Terminals Company is licensee or licensor of any such Intellectual Property);
(iii) agreements under which any of the Terminals Companies has directly or indirectly guaranteed Indebtedness indebtedness of any Person in the Company principal amount individually in excess of $50,0001,000,000;
(iv) agreements under which any of the Terminals Companies is obligated to advance, loan, extend credit, or make a capital contribution to, or other investment in, any Person (other than any of the Terminals Companies), in any such case that, individually, is in excess of $1,000,000;
(v) all Contracts, leases or easements involving annual rental payments or receipts in excess of $1,000,000;
(vi) all promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for the lending of money, whether as borrower or lender, in excess of $1,000,000 and all related security agreements or similar agreements associated therewith;
(vii) Contracts which limit the freedom of any of the Terminals Companies to compete with any Person or operate at any location, including, without limitation, any preferential rights granted to third parties to purchase or lease such location;
(viii) any bonds Contract for a pending or Contracts of Guarantee in which the Company acts as a surety completed acquisition or guarantor with respect to any obligation disposition (fixed by merger or contingentotherwise) of another Person;
all or substantially all of the assets (ixother than inventory) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement capital stock of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
Person (xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardwareTerminals Companies) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material 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;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a).
(b) The Company is in material compliance with the terms and provisions of each Material Contract. The Company, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. 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. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contract.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.the
Appears in 1 contract
Sources: Stock Purchase Agreement (Kinder Morgan Energy Partners L P)
Material Contracts. (a) Except for this Agreement, the Contracts filed as exhibits to the Company SEC Reports, and the Contracts listed in Subsections (i) through (xx) of Section 4.10(a3.16(a) of the Company Disclosure Schedule sets forth a trueSchedule, complete and correct list of each as of the following Contracts to which date hereof, none of the Company or any of its Subsidiaries is a party to or bound by which the Company is bound and which have not been entirely fulfilled or performed (such following Contracts, collectively, the “Material Contracts”)::
(i) all Contracts any Contract that contain restrictions with respect would be required to payment of dividends or any other distribution in respect be filed by the Company pursuant to Item 4 of the Membership Units or other Equity Instructions to Exhibits of Form 20-F under the CompanyExchange Act;
(ii) any Contract that by its terms requires relating to the payment by formation, creation, operation, management or on behalf control of any Subsidiary of the Company in excess of $100,000 per annum or the delivery by the Company of goods any other partnership, joint venture, strategic collaboration, global affiliation or services with a fair market value in excess of $100,000 per annum business cooperation, limited liability company or provides for the Company to receive payments in excess of $100,000 per annumsimilar arrangement;
(iii) all Contracts any Contract involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course ordinary course of Businessbusiness) or advance to (other than travel and entertainment advances allowances to the employees of the Company and any of its Subsidiaries extended in the Ordinary Course ordinary course of Businessbusiness), or investment in, any Person person or any agreement Contract relating to the making of any such loan, advance or investment in excess of $25,000for more than US$5,000,000;
(iv) any Contract that (i) requires involving Indebtedness of the Company to purchase or any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase its Subsidiaries of any product or servicemore than US$5,000,000;
(v) any Contract that relates to an acquisition (including so called take-or-pay or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vikeep-well agreements) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person person (other than the CompanyCompany or any of its Subsidiaries) has directly or indirectly guaranteed Indebtedness of the Company in excess or any of $50,000its Subsidiaries of more than US$5,000,000;
(vi) 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 US$5,000,000, other than a Permitted Encumbrances;
(vii) any management service, consulting, financial advisory or any other similar type Contract and all Contracts with investment or commercial banks;
(viii) any bonds Contract for the acquisition, disposition, sale, transfer or Contracts lease (including leases in connection with financing transactions) of Guarantee in which properties or assets of the Company acts or any of its Subsidiaries that have a fair market value or purchase price of more than US$5,000,000 (by merger, purchase or sale of assets or stock or otherwise) entered into since December 31, 2014 or, if prior to that date, have representations, warranties or indemnities that remain in effect or as a surety or guarantor with respect to any obligation (fixed or contingent) of another Personwhich claims are pending;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has litigation, arbitration, claim or other dispute with amount in controversy greater than US$5,000,000;
(x) any obligation Contract involving a standstill or Liability that will continue after the Closing Datesimilar arrangement;
(xi) any non-competition Contract limiting or restraining other Contract that purports to limit, curtail or restrict in any material respect the ability of the Company or any successor thereto from engaging or competing of its Subsidiaries to compete in any mannergeographic area, in any location industry or in any line of business;
(xii) all Affiliate Contractsany Contract for the employment of any senior executive officer;
(xiii) any Company IP Agreements as well as any Contract under that contains a put, call or similar right pursuant to which the Company is or any of its Subsidiaries could be required to purchase or sell, as applicable, any equity interests of any person or assets that have a party providing for the license fair market value or purchase price of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other more than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licenseeUS$5,000,000;
(xiv) any Contract concerning (other than Contracts granting Company Options, or Company RSs) giving the acquisitionother party the right to terminate such Contract as a result of this Agreement or the consummation of the Transactions, dispositionincluding the Merger, occupancy, management or operation where (A) such Contract requires any payment in excess of any Real Property owned, leased or used US$5,000,000 to be made by the CompanyCompany or any of its Subsidiaries in any calendar year or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract is in excess of US$5,000,000 in any calendar year;
(xv) all collective bargaining agreements entered into any Contract that contains restrictions with respect to (A) payment of dividends or any distribution with respect to equity interests of the Company or any of its Subsidiaries, (B) pledging of share capital of the Company or any of its Subsidiaries or (C) issuance of guarantee by the CompanyCompany or any of its Subsidiaries;
(xvi) any Contract providing that for (A) a license, covenant not to ▇▇▇ or other right granted by any Third Party under any Intellectual Property to the Company indemnify or any Person of its Subsidiaries, (B) a license, covenant not to ▇▇▇ or other right granted by the Company or any of its Subsidiaries to any Third Party under any Intellectual Property, (C) an indemnity of any person by the Company or any of its Subsidiaries against any charge of infringement, misappropriation, unauthorized use or violation of any Intellectual Property right, or (D) any royalty, fee or other amount payable by the Company or any of its Subsidiaries to any person by reason of the ownership, use, sale or disposition of Intellectual Property, in an amount that would be material to the Companyeach case of clauses (A) through (D), other than any agreements for off-the-shelf Software and such agreement Contracts that are not material to business of the Group Companies, taken as a whole, and in each case of clauses (C) and (D), other than Contracts entered into by the Company and its Subsidiaries in the Ordinary Course ordinary course of Businessbusiness;
(xvii) any Contracts with any Governmental Authority to which the Company is a partyContract granting rights in respect of exclusivity, “most favored nation” or similar rights;
(xviii) any Contracts Contract between or among the Company or any of its Subsidiaries, on the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, that limit, involves payments of more than US$5,000,000 in any material 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 timeone year;
(xix) all each Control Agreement and any other any Contract which (iA) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which provides the Company is with effective control over any of its Subsidiaries in respect of which it does not, directly or indirectly, own a party and which are not cancellable without material penalty majority of the equity interests (each, an “Operating Subsidiary”), (B) provides the Company or without more than ninety any of its Subsidiaries the right or option to purchase the equity interests in any Operating Subsidiary, or (90C) days’ notice; andtransfers economic benefits from any Operating Subsidiary to any other Subsidiary of the Company;
(xx) any Contract to purchase, lease between the Company or otherwise acquire the right to own, use any of its Subsidiaries and any director or lease any property or assets, including such Contracts entered into by an Affiliate executive officer of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) Company or $150,000 in the aggregate (in the case of a lease, for the entire term any person beneficially owning five percent or more of the lease, not outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act (including any option termthose that would be required to be disclosed if the Form 20-F were filed as of the date hereof); andor
(xxi) any other Contract which, if terminated, could reasonably be expected to result in a Company Material Adverse Effect. Each such Contract described in clauses (i) to (xxi) and each such Contract that is material would be a Material Contract if it had not been filed as an exhibit to the operation of the business of the Company and not otherwise disclosed pursuant SEC Reports is referred to this Section 4.10(a)herein as a “Material Contract.”
(b) The Except as would not have, individually or in the aggregate, a Company is in material compliance with the terms and provisions of Material Adverse Effect: (i) each Material Contract. The Contract is a legal, valid and binding obligation of a Group Company, as applicable, in full force and effect and enforceable against such Group Company in accordance with its terms, subject to the Knowledge Bankruptcy and Equity Exception; (ii) to the knowledge of the Company, the other party to any each Material Contract is not a legal, valid and binding obligation of the counterparty thereto, in full force and effect and enforceable against such counterparty in accordance with its terms, subject to the Bankruptcy and Equity Exception; (iii) no Group Company and, to the knowledge of the Company, no counterparty, is or is alleged to be in breach or violation of, or default under under, any Material Contract; (iv) to the knowledge of the Company, no person intends to terminate any Material Contract; and (v) neither the execution of this Agreement nor the consummation of any Transaction shall constitute a default under, give rise to cancellation rights under, or otherwise adversely affect any of its terms. The Company has not received notice the rights of any breach, default or notice of termination by any Person Group Company under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. 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. The Company has no reason furnished or made available to believe Parent true and complete copies of all Material Contracts, including any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contractamendments thereto.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Material Contracts. (a) Section 4.10(a) of the Company Disclosure Schedule sets forth a In Annex 6.14 hereto are disclosed true, complete and correct list accurate copies of each of the following Contracts all material contracts, leases and agreements currently in force to which the Company Verplast is a party or by which the Company is bound and which have including, but not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):limited to:
(i) all Contracts that contain restrictions with respect to payment any agreement for the lease of dividends or any other distribution in respect of the Membership Units or other Equity of the Companyreal property;
(ii) any Contract that tenancy-rental agreement for real properties owned by its terms requires the payment by or on behalf of the Company in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annumVerplast;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating or amendment to such agreement under the making terms of which Verplast has created, incurred, assumed or guaranteed any such loan, advance or investment liability for borrowed money in excess of $25,000Lire 30.000.000 (thirty million) including, without limitation, any term loan or other agreements with any bank or any other financial institution;
(iv) any Contract that (i) requires the Company to purchase agreement under which Verplast has granted a lien, pledge, security interest or other encumbrance upon any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or serviceits assets;
(v) any Contract that relates to an acquisition contract with external consultants for a liability exceeding Lire 30.000.000 (thirty million) per year, including any bonus or divestiture deferred payment (other than oral retainers of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;professionals which can be terminated without notice); 15
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Companyguaranty, other than a Permitted Encumbrancesuretyship, performance bond and/or contribution agreements;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000material distribution, agency, marketing, licensing, sales representative and/or dealership agreements;
(viii) any bonds loans or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect advances to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venturethird party, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property shareholders, directors and officers of Verplast in excess of Lire 30.000.000 (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licenseethirty million);
(xivix) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be agreement. With respect to each material agreement and each license relating to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority Licensed Intellectual Property to which the Company Verplast is a party;
(xviii) any Contracts that limit, except as otherwise disclosed in any material 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;
(xix) all Annex 6.14: (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a).
(b) The Company agreement is in material compliance with full force and effect and constitutes the terms and provisions of each Material Contract. The Companylegal, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on obligation for Verplast and the Company party other parties thereto and it is enforceable in accordance with its respective terms and terms, (ii) to the best of the Seller's knowledge, such agreement will not be terminated as a result of this Agreement or the consummation of the transactions contemplated herein, (iii) Verplast is not in full force and effect. Each Material Contract (or description) sets forth the entire default in any material respect under such agreement and understanding no event has occurred which, with the passing of time, would become a default, and (iv) no other party is in default in any material respect under such agreement. No bonus or complete description severance will become due and payable under any existing agreement between Verplast and any of its employees as a result of this Agreement or the consummation of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. 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. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contracttransactions contemplated herein.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Sources: Framework Agreement (Ico Inc)
Material Contracts. (a) Section 4.10(a) of the Company Disclosure Schedule sets Set forth on SCHEDULE 2.8 is a true, complete and correct list of each of the following Contracts all contracts, arrangements and commitments to which the Company is a party or by which the Company is Company's assets or business are bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):
that relate to (i) all Contracts that contain restrictions with respect to payment of dividends or any other distribution in respect of the Membership Units sale, lease or other Equity disposition by the Company of assets (excluding inventory in the Company;
(iiordinary course of business) any Contract that by its terms requires the payment by or on behalf of the Company in excess of each case involving more than $100,000 per annum 100,000; (ii) the purchase or the delivery lease by the Company of goods or services with a fair market value assets (excluding inventory in excess the ordinary course of business) in each case involving more than $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum;
100,000; (iii) all Contracts involving the supply by the Company of any customer's requirements for any item or the purchase by the Company of its requirements for any item or of a loan vendor's output of any item which in each case involves more than $100,000; (iv) licenses and grants to or from the Company relating to any Intellectual Property; (v) each partnership, joint venture or cost-sharing agreement; (vi) each guaranty or suretyship, indemnification or contribution agreement or performance bond outside the ordinary course of business; (vii) each instrument, agreement or other than accounts receivable owing from trade debtors in the Ordinary Course of Business) obligation evidencing or advance relating to (other than travel and entertainment advances to the employees Indebtedness of the Company extended in or to money lent or to be lent to another Person involving more than $10,000; (viii) each contract to purchase or sell real property; (ix) each contract containing any noncompetition agreement, covenant or undertaking; (x) each agreement providing for the Ordinary Course purchase from a supplier of Business), all or investment in, any Person or any agreement relating to substantially all the making requirements of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any of a particular product or service which in excess of each case involves more than $100,000 from in the aggregate; (xi) all agreements granting any Person a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance Lien on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which including any Person (other than factoring agreement or agreement for the Company) has directly assignment of receivables or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
inventory; (xii) all Affiliate Contracts;
agreements with any manufacturer or supplier with respect to discounts or allowances or extended payment terms, to the extent any such agreement involves $100,000 or more; (xiii) any Company IP Agreements as well as any Contract under all agreements which restrict the Company is a party providing for the license from doing any kind of business or settlement from doing business in any jurisdiction or from competing with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
Person; (xiv) all shareholders' agreements, proxies, voting trusts or powers of attorney to act on behalf of the Company or in connection with the properties or business affairs of the Company other than such powers to so act as normally pertain to corporate officers and excluding any Contract concerning the acquisition, disposition, occupancy, management or operation power of any Real Property owned, leased or used by the Company;
attorney to customs offices; (xv) all collective bargaining agreements entered into by for the Company;
construction or material modification of any building or structure or for the incurring of any other material capital expenditure, to the extent any such agreement involves $50,000 or more; (xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
all advertising agreements; (xvii) any Contracts all brokerage agreements, finder's agreements, custodial account agreements and agreements with any Governmental Authority respect to which the Company is a party;
pension administration, investment management and investment advisory services; (xviii) any Contracts that limit, in any material respect, all contracts for the ability provision 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;
data processing services; (xix) all (i) employment agreements (excludingfor environmental inspections, for certaintyconsulting, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ noticereporting, testing and/or remediation; and
(xx) any Contract to purchaseall interest rate, lease commodity and currency hedges, swaps and similar agreements; or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract matter that is material inv▇▇▇▇▇ the payment of consideration in excess of $100,000 per fiscal year (each such item hereafter referred to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(aas a "MATERIAL CONTRACT").
(b) The Company is in material compliance with the terms True, correct and provisions complete copies of each Material Contract. The Companyall written items listed above, and true, correct and complete written descriptions of all oral items listed above, have heretofore been delivered or made available by Seller to Buyer. Except as set forth in SCHEDULE 2.8, as of the date hereof and after giving effect to the Knowledge of transactions contemplated hereby, (i) except for such matters that, singly or in the aggregate would not have a Material Adverse Effect on the Company, the other party to any Material Contract is not in breach there are no existing or default under any asserted defaults, events of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A trueevents, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (occurrences, acts or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No event or circumstance has occurred omissions that, with the giving of notice or lapse of time or both, would constitute an event defaults or events of default by the Company under any Material Contract or result in a termination thereof or would cause or permit Contract, or, to the acceleration or other changes knowledge of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respectsSeller, and the Company has not received any notice of termination or intent to terminate by any other party thereto; (ii) no penalties have been incurred, nor are amendments pending, with respect to any Material Contract.
; and (diii) The each order placed by a third party with the Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not prior to the acquisition Closing that is a Material Contract has been fully satisfied (or is subject to full satisfaction) within the time period requested by that third party. As of the date hereof and after giving effect to the transactions contemplated hereby, the Material Contracts are in full force and effect and are valid and enforceable obligations of the Company and, to the knowledge of Seller, valid and enforceable obligations of the other parties thereto, enforceable in accordance with their respective terms, and no defenses, off-sets or counterclaims have been asserted or, to the knowledge of Seller, may be made by any business party thereto (earn-out or other similar type of payments) or noncompetition agreementthan by the Company), nor has the Company waived any rights thereunder.
Appears in 1 contract
Material Contracts. (a) Section 4.10(a3.7(a) of the Company Disclosure Schedule Schedules sets forth a true, true and complete and correct list of each of the following Contracts Contracts, other than this Agreement and the Ancillary Documents, to which the a Group Company is a party or by which the Company is bound and which have not been entirely fulfilled any of its properties or performed assets may be bound, subject or affected (such Contracts, collectively, the each a “Material ContractsContract”):
(i) all Contracts that contain restrictions with respect any agreement which creates or imposes a non-contingent forward Liability to payment of dividends or any other distribution in respect of the Membership Units or other Equity of the Companya non-Group Company greater than $1,000,000;
(ii) any Contract that for the sale of electricity, capacity, ancillary services, or renewable energy credits with a value greater than $250,000;
(iii) any Contract with (A) a Significant Customer, other than those that, if breached or terminated by its terms requires a party thereto, would not individually or in the payment by aggregate materially impact the financial condition or on behalf results of operations or business of a Group Company, or (B) a Significant Supplier involving the Company in excess purchase or sale of $100,000 per annum or the delivery by the Company of any inventory, goods or services with a fair market value in excess of greater than $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000250,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party Governmental Entity in connection with the sale which such Governmental Entity is a customer of, or purchase of receiving services from, any product or serviceGroup Company;
(v) any Contract that relates to an acquisition under which any Group Company is lessee of or divestiture holds or operates, in each case, any tangible property (other than real property), owned by any other Person (other than any Affiliates of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company) in excess of $250,000;
(vi) any Contract under joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, in each case, which the Company has any outstanding Indebtedness requires, or evidencing an Encumbrance would reasonably be expected to require (based on any property occurrence, development, activity or asset event contemplated by such Contract), aggregate payments to or from any Group Company in excess of $250,000 over the life of the Company, other than a Permitted EncumbranceContract;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting that (A) limits or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect purports to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability freedom of the any Group Company to engage or compete in any line of business or with any Person or in any geographic area or during that would so limit or purport to limit, in any period material respect, the operations of timePubco or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of any Group Company to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, in any material respect or that would so limit or purports to limit, in any material respect, Pubco or any of its Affiliates after the Closing;
(xixviii) all any Contract with any Person (A) pursuant to which any Group Company (or Pubco or any of its Affiliates after the Closing) may be required to pay royalties or other contingent payments based on any research, development, sale, distribution or other similar occurrences, developments, activities or events or (B) under which any Group Company grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Company Owned Intellectual Property;
(ix) any Contract for the disposition of any portion of the assets or business of any Group Company or for the acquisition by any Group Company of the assets other than equipment to be incorporated into a project in the ordinary course of business or business of any other Person involving consideration in excess of $500,000 (other than acquisitions or dispositions made in the ordinary course of business), or under which any Group Company has any continuing obligation with respect to an “earn-out”, contingent purchase price or other contingent or deferred payment obligation;
(x) any Contract that will be required to be filed with the Registration Statement under applicable SEC requirements or would otherwise be required to be filed by the Company as an exhibit for a Form S-1 pursuant to Items 601(b)(1), (2), (4), (9) or (10) of Regulation S-K under the Securities Act as if the Company was the registrant; or
(xi) is otherwise material to any Group Company and outside of the ordinary course of business and not described in clauses (i) employment agreements through (excluding, for certainty, any employees who are employed at willx) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ noticeabove; and
(xxxii) any commitment to enter into any Material Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount type described in excess clauses (i) through (xi) of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a3.7(a).
(b) The Company is in material compliance with the terms True, correct and provisions of each Material Contract. The Company, and to the Knowledge complete copies of the CompanyMaterial Contracts (including all material modifications, the other party amendments and supplements thereto) have been delivered to any Material Contract is not in breach or default under any of made available to TortoiseCorp III or its terms. The Company has not received notice of any breach, default agents or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedulerepresentatives.
(c) Each Material Contract is (i) valid and binding on the applicable Group Company party thereto in accordance with its respective terms and, to the knowledge of the Company, the counterparty thereto, and (ii) is in full force and effect. Each Material Contract (or description) sets forth , and the entire agreement and understanding (or complete description applicable Group Company and, to the knowledge of the material terms, as applicable), between the Company, on one handthe counterparties thereto are not in material breach of, and the other parties theretoor default under, on the other hand, with respect to the subject matter thereof. 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. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contract.
(d) The Since the Lookback Date, (i) no Group Company has no Liability for the deferred purchase price of propertyreceived any written or, goods or services, whether connected or not to the acquisition knowledge of the Company, oral claim or notice of material breach of or material default under any business Material Contract and (earnii) no Significant Customer has exercised its buy-out option under any power purchase agreement or similar Contract.
(e) To the knowledge of the Company, no event has occurred which, individually or together with other similar type events, would reasonably be expected to result in a material breach of payments) or noncompetition agreementa material default under any Material Contract by the applicable Group Company or, to the knowledge of the Company, any other party thereto (in each case, with or without notice or lapse of time or both).
Appears in 1 contract
Sources: Business Combination Agreement (TortoiseEcofin Acquisition Corp. III)
Material Contracts. (a) Section 4.10(a) of the Company Disclosure Schedule 4.11 sets forth a true, complete and correct list of each all of the following Contracts to which the Company is a party or by which the Company is bound and which have not been entirely fulfilled or performed subject to as of the date of this Agreement (such Contracts, collectively, the “"Material Contracts”"):
(i) all Contracts involving aggregate payments made from January 1, 2015 through September 30, 2015 of more than $500,000, or for which the Company is obligated to pay or entitled to receive more than $500,000 in any subsequent twelve (12) month period (A) for the purchase by the Company of (or that contain restrictions with respect grant a right or option to payment the Company to purchase) any asset, equipment or property or provision of dividends any service or (B) for the sale by the Company of (or that grant a right or option to any other distribution in respect of the Membership Units or other Equity of Third Party to purchase from the Company) any asset, equipment or property;
(ii) any Contract that by its terms requires the payment by or on behalf of Contracts between the Company in excess and any customer for the provision of $100,000 per annum or the delivery services by the Company involving aggregate payments made from January 1, 2015 through September 30, 2015 of goods more than $500,000, or services with a fair market value in excess of $100,000 per annum or provides for which the Company is obligated to pay or entitled to receive payments more than $500,000 in excess of $100,000 per annumany subsequent twelve (12) month period;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of under which the Company extended in the Ordinary Course of Business)has created, incurred, assumed or guaranteed any outstanding Debt Obligations, or investment in, under which the Company has imposed or permitted to exist a Lien on any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000its Properties;
(iv) any Contract outstanding futures, swap, collar, put, call, floor, cap, option or other similar Contracts that (i) requires are intended to benefit from or reduce or eliminate the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase risk of any product fluctuations in interest rates, foreign exchange rates or servicethe price of commodities;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, (i) expressly limit the ability freedom of the Company to compete in any line of business or with any Person or conduct business in any geographic area or during (ii) grant to another Person exclusive rights with respect to the sale of any period goods or services or the operation of timebusiness in any territory;
(xixvi) all partnership, joint venture or limited liability company agreements;
(i) employment agreements (excluding, for certainty, any employees who are employed at will) and (iivii) Contracts with independent contractors or consultants that require, subsequent to the date of this Agreement, aggregate capital expenditures in excess of $500,000 annually per Contract;
(or similar arrangementsviii) Government Contracts (x) involving annual payments to which the Company is during 2014, or expected payments to the Company in any subsequent calendar year, which exceed $2,000,000 per contract; or (y) (for subcontracts with another entity under a party and which prime Contract held by the Company) that are also Material Contracts by virtue of Section 4.11(a)(i); provided, that in each case individual task orders are not cancellable without material penalty or without more than ninety (90) days’ notice; andlisted separately;
(xxix) Contracts that relate to the acquisition by the Company of any Contract to purchase, lease of the capital stock or otherwise acquire substantial portion of the right to own, use assets of another Person;
(x) Contracts which provide for the sale or lease any property or assets, including such after the date of this Agreement of a material amount of the assets of the Company (other than Contracts entered into by an Affiliate in the ordinary course of business);
(xi) other than with respect to the Organizational Documents of the Company, Contracts providing for an amount the indemnification by the Company of any current or former director, officer or employee of the Company;
(xii) Contracts that contain a "most favored nation" or "most favored customer" pricing or other similar provision in excess of $100,000, individually (in the case favor of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term)third party; andor
(xxixiii) any other Contract that is material to the operation of the business of Contracts under which the Company and not otherwise disclosed pursuant has agreed to this Section 4.10(a)share any Tax liability with any Person.
(b) The Company is in material compliance with the terms Seller has delivered or made available to Purchaser true and provisions correct copies of each Material Contract. The Company, other than Material Contracts that contain competitively sensitive information as determined by the Company or Seller and as indicated on Schedule 4.11, in each case, which have been made available to the Knowledge of ES Clean Team pursuant to the Company, the other party to any Material Contract is not in breach or default under any of its termsClean Team Agreement. The Company has not received any written or, to the Knowledge of Seller, oral notice of any breachdefault in any material respect or event that with notice or lapse of time, or both, would constitute a default or notice of termination in any material respect by any Person the Company under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) a valid and binding on obligation of the Company party thereto Company, in full force and effect and enforceable in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, except as applicable)may be limited by bankruptcy, between insolvency, reorganization, fraudulent conveyance, arrangement, moratorium or other similar Applicable Laws relating to or affecting the Companyrights of creditors generally, on one handor by general equitable principles. Neither the Company nor, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No Knowledge of Seller, any other party to any Material Contract, is in material breach or violation of or in material default under any Material Contract, nor, to the Knowledge of Seller, has any event occurred or does any circumstance has occurred thator condition currently exist, that (with notice or without notice, lapse of time or both, ) would constitute an event reasonably be expected to (A) result in a material breach or violation of or material default under any Material Contract, (B) give any party the right to cancel or accelerate payments under or terminate or modify 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. The Company has no reason to believe (C) give any party to any Material Contract will the right to seek damages or other material remedies.
(c) The Company is not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any a party to any Material Contract.
Contract with respect to the provision of services (di) The Company has no Liability that will result in any pricing that would violate Section 401.2456 of the Texas Health and Safety Code (without regard to any waiver or exception from the Texas Commission on Environmental Quality), or (ii) that includes any fixed price payment provisions without regard to volume in consideration for the deferred purchase price of property, goods or Company's services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Sources: Purchase Agreement (Valhi Inc /De/)
Material Contracts. None of the Reliance Entities, nor any of their respective Assets, businesses, or operations, is a party to, or is bound or affected by, or receives benefits under, any Contract (whether written or oral), (a) that is either material to any Reliance Entity or that would be required to be filed as an exhibit to a Form 10-K filed by any Reliance Entity with the SEC if the Reliance Entity were required to file or voluntarily filed such Form 10-K, (b) that is an employment, severance, termination, consulting, or retirement Contract except as listed in Section 4.10(a4.19(i) of Reliance’s Disclosure Memorandum, (c) relating to the Company Disclosure Schedule sets forth a trueborrowing of money by any Reliance Entity or the guarantee by any Reliance Entity of any such obligation (other than Contracts evidencing deposit liabilities, complete purchases of federal funds, fullysecured repurchase agreements, advances and correct list of loans from the Federal Home Loan Bank, and trade payables, in each of case in the following Contracts to which the Company is a party or by which the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):
(iOrdinary Course) all Contracts that contain restrictions with respect to payment of dividends or any other distribution in respect of the Membership Units or other Equity of the Company;
(ii) any Contract that by its terms requires the payment by or on behalf of the Company in excess of $100,000 per annum 10,000, (d) which prohibits or restricts any Reliance Entity (and/or, following consummation of the delivery transactions contemplated by this Agreement, ▇▇▇▇▇▇▇) from engaging in any business activities in any geographic area, line of business or otherwise in competition with any other Person, (e) relating to the Company purchase or sale of any goods or services with by a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum;
(iii) all Contracts involving a loan Reliance Entity (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) and involving payments under any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material 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;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are individual Contract not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,00050,000 over its remaining term or involving Loans, individually (borrowings or guarantees originated or purchased by any Reliance Entity in the case Ordinary Course), (f) which obligates any Reliance Entity to conduct business with any third party on an exclusive or preferential basis, or requires referrals of business or any Reliance Entity to make available investment opportunities to any Person on a leasepriority or exclusive basis, per annum(g) which limits the payment of dividends by any Reliance Entity, (h) pursuant to which any Reliance Entity has agreed with any third parties to become a member of, manage or $150,000 control a joint venture, partnership, limited liability company or other similar entity, (i) pursuant to which any Reliance Entity has agreed with any third party to a change of control transaction such as an acquisition, divestiture or merger or contains a put, call or similar right involving the purchase or sale of any equity interests or Assets of any Person and which contains representations, covenants, indemnities or other obligations (including indemnification, “earn-out” or other contingent obligations) that are still in effect, (j) which relates to Intellectual Property of Reliance (excluding commercially available “off the aggregate shelf” software programs licensed pursuant to “shrink wrap” or “click and accept” licenses), (in k) between any Reliance Entity, on the case of a leaseone hand, for the entire term of the lease, not including any option term); and
and (xxii) any other Contract that is material to the operation officer or director of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a).
any Reliance Entity, or (bii) The Company is in material compliance with the terms and provisions of each Material Contract. The Company, and to the Knowledge of Reliance, any (x) record or beneficial owner of five percent or more of the Companyvoting securities of Reliance, the other party to any Material Contract is not in breach (y) Affiliate or default under any of its terms. The Company has not received notice family member of any breachsuch officer, default director or notice record or beneficial owner or (z) any other Affiliate of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties theretoReliance, on the other hand, except those of a type available to employees of Reliance generally, (l) that provides for payments to be made by Reliance or any of its Subsidiaries upon a change in control thereof, (m) that may not be canceled by ▇▇▇▇▇▇▇, Reliance or any of their respective Subsidiaries (i) at their convenience (subject to no more than 90 days’ prior written notice), or (ii) without payment of a penalty or termination fee equal to or greater than $50,000 (assuming such Contract was terminated on the Closing Date), (n) containing any standstill or similar agreement pursuant to which Reliance has agreed not to acquire Assets or equity interests of another Person, (o) that provides for indemnification by Reliance or any of its Subsidiaries of any Person, except for non-material Contracts entered into in the Ordinary Course, (p) with or to a labor union or guild (including any collective bargaining agreement), (q) that grants any “most favored nation” right, right of first refusal, right of first offer or similar right with respect to any material Assets, or rights of Reliance or its Subsidiaries, taken as a whole, or (r) that would be terminable other than by a Reliance Entity or under which a material payment obligation would arise or be accelerated, in each case as a result of the subject matter thereof. No event Merger or circumstance has occurred thatthe announcement or consummation of the transactions contemplated by this Agreement (either alone or upon the occurrence of any additional acts or events), with notice or lapse of time or both, would constitute an event of default under (s) any Material other Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party amendment thereto that is material to any Material Reliance Entity or their respective business or Assets and not otherwise entered into in the Ordinary Course. Each Contract will not fulfill its obligations thereunder of the type described in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contract.
(d) The Company has no Liability for the deferred purchase price of property, goods or servicesthis Section 4.20, whether connected or not set forth in Reliance’s Disclosure Memorandum together with all Contracts referred to in Sections 4.13 and 4.19(a), are referred to herein as the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.“
Appears in 1 contract
Material Contracts. (a) Except for this Agreement and except as set forth in Section 4.10(a4.6(a) of the Disclosure Schedule, the Company Disclosure Schedule sets forth is neither a true, complete and correct list of each party to nor bound by any of the following Contracts (each a "Material Contract"):
(i) any maintenance or support Contract with any customer of the Company in excess of $25,000 on an annual basis in the current fiscal year;
(ii) any distributor, original equipment manufacturer, reseller, value added reseller, sales, advertising, agency or manufacturer's representative Contract (not otherwise included in Section 4.6(a)(i)) pursuant to which the Company has made or received aggregate payments in excess of $50,000 since January 1, 2010 (including under any master sales agreement regardless of whether each purchase order may be less than $50,000);
(iii) any Contract for the prospective purchase, sale, license or Exploitation of materials, supplies, equipment, services, Software, Intellectual Property or other assets requiring the Company to pay pursuant to any such individual Contract more than $50,000 over the life of the Contract;
(iv) any Contract limiting the freedom of the Company to engage or participate, or compete with any other Person, in any line of business, market or geographic area, or to Exploit any Company Intellectual Property or otherwise limiting the right of the Company to (A) sell, distribute, manufacture or Exploit any Company Products or (B) purchase, obtain or Exploit any Software, components, parts, subassemblies or services;
(v) any Contract granting most favored nation pricing or similar provisions;
(vi) any Contract granting any exclusive rights with respect to the Company Products or Company Intellectual Property of any type or scope to any Person;
(vii) any Contract pursuant to which the Company is a lessor or lessee of any real property or any machinery, equipment, motor vehicles, office furniture, fixtures or other personal property involving in excess of $50,000 per annum;
(viii) any trust indenture, mortgage, security agreement, promissory note, loan or credit agreement, or any leasing transaction of the type required to be capitalized in accordance with GAAP;
(ix) any Contract of guarantee, support, assumption or endorsement of indebtedness of any other Person;
(x) any licenses, sublicenses and other Contracts as to which the Company is a party and pursuant to which any Person is authorized to use or Exploit any Company Intellectual Property or Company Product (other than standard and customary licenses, sublicenses and other Contracts entered into with the Company's customers in the Ordinary Course of Business in connection with license or sale of Company Products);
(xi) any licenses, sublicenses and other Contracts to which the Company is a party or by and pursuant to which the Company acquired or is bound authorized to use or Exploit any material Third Party Intellectual Property, other than "shrink wrap" and which have similar generally available commercial end-user licenses to Software that is not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):redistributed with any Company Product;
(ixii) all Contracts that contain restrictions with respect to payment any Contract providing for the development of dividends any Software, content, technology or any other distribution in respect of the Membership Units Intellectual Property, independently or other Equity of jointly, by or for the Company;
(iixiii) (A) any joint venture Contract, (B) any Contract that by its terms requires involves a sharing of revenues, profits, cash flows, expenses or losses with other Persons or (C) any Contract that involves the payment by or on behalf of the Company royalties to any other Person in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 25,000 per annum;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning for the acquisition, disposition, occupancy, management or operation employment of any Real Property owned, leased director or used officer of the Company or any other type of Contract with any director or officer of the Company that is not immediately terminable by the CompanyCompany without any Liability;
(xv) all collective bargaining agreements entered into any Contract for employment of any individual not set forth in subsection (xiv) or with any independent contractor, other than offer letters or similar Contracts that can be terminated at will without Liability and standard contracts required by the Companylaw for non-U.S. employees, a form of which, and any material deviations therefrom, have been made available to Parent;
(xvi) any Contract providing that or plan (including any stock option, merger or stock bonus plan) relating to the sale, issuance, grant, exercise, award, purchase, repurchase or redemption of any shares of Company Capital Stock or any other securities of the Company indemnify or any Person in an amount that would be material options, warrants, convertible notes or other rights to the Companypurchase or otherwise acquire any such shares of stock, other than any such agreement entered into in securities or options, warrants or other rights therefor, except for award notices and agreements under the Ordinary Course of BusinessCompany Stock Plan;
(xvii) any Contracts Contract with any Governmental Authority to which the Company is a partylabor union or collective bargaining agreement or similar contract with its employees;
(xviii) any Contracts that limitContract pursuant to which the Company has acquired a business or entity, or material assets of a business or entity, whether by way of purchase, consolidation, purchase of stock, purchase of assets, merger, consolidation, license or otherwise, or any Contract pursuant to which it has any material equity ownership interest in any material 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;other Person; or
(xix) all any other Contract not listed in clauses (i) employment agreements through (excluding, for certainty, any employees who are employed at willxviii) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount that individually has payment obligations in excess of $100,000, individually (in 50,000 over the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)Contract.
(b) All Material Contracts are in written form. The Company is has performed in all material compliance with respects all of the terms and provisions of obligations required to be performed by it under each Material Contract. The CompanyThere exists no default or event of default or event, and occurrence, condition or act, with respect to the Knowledge Company or, to the Company's knowledge, with respect to any other contracting party, which, with the giving of notice, the lapse of time or the completion of the CompanyMerger and the transactions contemplated thereby, the other party to (i) is or would become an event of default or a material default under any Material Contract is not in breach or default (ii) would give any third party the right to accelerate the maturity or performance of any material obligation of the Company under any of its termsMaterial Contract or to cancel, terminate or materially modify any Material Contract or cause the granting or triggering any other material right under any Material Contract. The Company has not received any written notice of regarding any breachoutstanding violation or breach of, default under, or notice of termination by any Person under intention to cancel or modify any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each of the Material Contract Contracts is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire effect and constitutes a legal, valid and binding agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one handand to the Company's knowledge is a legal, valid and the binding agreement of any other parties party thereto, on the other hand, with respect subject only to the subject matter thereof. No event effect, if any, of (i) bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or circumstance has occurred thatother similar laws relating to or affecting the rights or remedies of creditors or (ii) general principles of equity, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result whether considered in a termination thereof proceeding in equity or would cause at law (including the possible unavailability of specific performance or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contractinjunctive relief).
(d) The Company has no Liability for True and complete copies of each Material Contract, together with all amendments and supplements thereto, have been provided to Parent under appropriate headings in the deferred purchase price of property, goods or services, whether connected or not electronic due diligence data room hosted by RR ▇▇▇▇▇▇▇▇ under the name Project Milan at least two (2) days prior to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreementAgreement Date.
Appears in 1 contract
Material Contracts. (a) Section 4.10(a) 3.11 of the Company Seller Disclosure Schedule sets forth a true, complete and correct list of each of lists all Contracts described in clauses (i) through (xiii) below that relate primarily to the following Contracts US Wireless Sales Business to which the Company Seller is a party or by pursuant to which the Company is Transferred Assets are otherwise bound and which have not not, as of the date hereof, been entirely fulfilled terminated or fully performed ("MATERIAL CONTRACTS"). A true, correct and complete copy of each such Contracts, collectively, the “Material Contracts”):Contract has been made available to Buyer.
(i) all any Contracts that contain restrictions with respect to payment providing for a commitment of dividends employment or consultation services requiring payments in any other distribution one year in respect excess of the Membership Units or other Equity of the Company$100,000;
(ii) any Contract that by its terms requires Contracts with any Person containing any provision or covenant prohibiting or materially limiting the payment by ability of Seller to engage in any business activity or compete with any Person;
(iii) any Contracts pursuant to which any Lien (other than Permitted Liens) has been imposed on behalf any Transferred Assets;
(iv) any Contracts (other than this Agreement) providing for (i) the future disposition or acquisition of any of the Company Transferred Assets, other than dispositions or acquisitions in excess the ordinary course of $100,000 per annum business of Inventory or the delivery by the Company of goods or services with assets having a fair market value in excess of $100,000 per annum 50,000 or less, and (ii) any merger or other business combination involving the US Wireless Sales Business;
(v) any Contract the terms of which include express provisions regarding confidentiality;
(vi) any Contract for the lease of personal property or Equipment constituting a Transferred Asset to or from any Person which provides for the Company to receive lease payments in excess of $100,000 per annum;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbranceyear;
(vii) all Contracts under any Contract that limits or contains restrictions on the ability of Seller to incur or suffer to exist any Lien, to purchase or sell any assets, to change the lines of business in which it participates or engages or to engage in any Person (merger or other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000business combination and which are included as Assumed Liabilities;
(viii) any bonds other Contracts (excluding outstanding warranty obligations of the Seller) that (A) involve the payment, pursuant to the terms of any such Contract, (1) by Seller of more than $50,000 annually or Contracts (2) to Seller of Guarantee more than $200,000 annually and (B) cannot be terminated within ninety (90) days after giving notice of termination without resulting in which the Company acts as a surety any material cost or guarantor with respect penalty to any obligation (fixed or contingent) of another PersonSeller;
(ix) all Contracts involving any joint ventureContract concerning the issuance of a permit, partnershipfranchise or license which is material to the US Wireless Sales Business requiring an annual payment of $100,000 or more in fees, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development royalties or similar arrangementotherwise by Seller;
(x) all Contracts involving any resolution Contract the particulars of which are required to be furnished to any competition or settlement regulatory authority and any undertaking that has been given or order made pursuant to any competition legislation or in response to any request for information or statement of objection from any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing DateGovernmental Authority;
(xi) any Contract limiting bid, tender, proposal or restraining offer which, if accepted, will result in Seller becoming a party to any agreement or arrangement in which the Company aggregate payments to be received or any successor thereto from engaging or competing in any manner, in any location or in any businesspaid by Seller would exceed $500,000;
(xii) all Affiliate Contractsany Contract not otherwise described in any of clauses (i) through (xi) above under which the consequences of a default or termination could reasonably be expected to have Seller Material Adverse Effect;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect material amendment to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability of the Company to compete Contracts described in any line of business or with any Person or in any geographic area or during any period of time;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)3.11.
(b) The Company is in material compliance with the terms and provisions of each Material Contract. The Company, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid legal, valid, binding and binding on the Company party thereto enforceable by and against Seller in accordance with its respective terms terms, except to the extent such enforceability may be limited by applicable bankruptcy or other laws affecting creditors' rights, or by general equity principles, and (ii) is in full force and effecteffect on the date hereof. Each Such Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the Contracts are fully performable by Seller in accordance with their terms. Seller has performed all material terms, as applicable), between the Company, on one handobligations required to be performed by it to date under each such Material Contract, and the other parties thereto, on the other hand, with respect to the subject matter thereofis not in material default under any such Material Contract. No event or circumstance has occurred thatwhich, with due notice or lapse of time or both, would constitute an event of a material default under any such Material Contract or result in a termination thereof or would cause or permit Contract. To the acceleration or Knowledge of Seller, no other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any such Material Contract will not fulfill its obligations thereunder is in all material respectsdefault of any Material Contract and no event has occurred which, with due notice of lapse of time or both, would constitute such a default, and otherwise there are no grounds for the Company has not received any notice of termination or intent to terminate cancellation of such Material Contract by any party to any Material ContractSeller.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Material Contracts. (a) Section 4.10(aExcept for this Agreement and for any Real Property Lease, Schedule 3.7(a) of the Company Disclosure Schedule sets forth a true, complete and correct list of each of the following types of Contracts to which the any Group Company is a party or by which the any Group Company is bound and which have not been entirely fulfilled or performed as of the date hereof (such Contractseach, collectively, the a “Material ContractsContract”) (provided, that for purposes of disclosure on Schedule 3.7(a), each threshold of $100,000 below shall be deemed to be $500,000):
(i) all Contracts that contain restrictions with respect to payment Contract for the employment of dividends or any other distribution in respect of the Membership Units officer, employee or other Equity person on a full‑time, part-time, consulting or other basis providing total annual compensation in excess of the Company$250,000 (other than any “at will” Contract that may be terminated by any Group Company upon 30 days or less advance notice and does not impose any penalty or severance obligations upon a Group Company upon termination);
(ii) Contract under which any Group Company has made advances or loans to any other Person (other than (A) any such Contract that by its terms requires the payment by or on behalf involving advances made to an employee of the Company Group Companies in excess the ordinary course of $100,000 per annum business and (B) any such Contract between or among one or more members of the delivery by Group Companies, on the Company one hand, and one or more other members of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annumGroup Companies, on the other hand);
(iii) all Contracts involving Contract containing a loan (other than accounts receivable owing from trade debtors covenant granted by any Group Company in favor of a third party not to compete or engage in any line of business or conduct business in any geographic area that would be reasonably likely to materially restrain the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making business of any such loan, advance or investment in excess of $25,000Group Company;
(iv) Contract limiting the freedom of any Contract that (i) requires the Group Company to purchase solicit for employment or hire any product or service in excess individual, which limitation materially impairs the business of $100,000 from the Group Companies, taken as a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or servicewhole, as currently conducted;
(v) any Contract that relates required to an acquisition or divestiture of material assets be disclosed pursuant to Section 3.7(a)(xi) that contains covenantsany “most‑favored nations”, indemnities exclusivity or similar right or undertaking in favor of any party other contractual obligations that could impose than a Liability that is material to the Group Company;
(vi) Contract or indenture (including any guarantee) relating to Funded Indebtedness except for Funded Indebtedness for an amount less than $100,000;
(vii) Contract under which any Group Company is lessee of or holds or operates any tangible property (other than real property), owned by any other Person, except for any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of aggregate annual rental payments do not exceed $50,000100,000;
(viii) Contract under which any bonds Group Company is lessor of or Contracts of Guarantee in permits any third party to hold or operate any tangible property (other than real property), owned or controlled by the Company, except for any Contract under which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Personaggregate annual rental payments do not exceed $100,000;
(ix) all Contracts involving material Contract pursuant to which any joint ventureGroup Company is granted a license to use any Intellectual Property Rights, partnershipor grants any other Person a right to use any Group Company IP Rights (excluding (A) licenses for shrink-wrap, strategic allianceclick-wrap or off-the-shelf software, shareholders’ agreement, coor other generally commercially available software on non-marketing, co-promotion, joint development or similar arrangementdiscriminatory terms and (B) non‑disclosure agreements);
(x) all Contracts involving material partnership or strategic alliance agreements and material joint venture agreements relating to the Group Companies;
(xi) Contract with the top 20 customers of the Group Companies based on revenue during the twelve‑month period ending December 31, 2014 (excluding any resolution purchase or settlement sale orders entered into in the ordinary course of business);
(xii) Contract with the top 20 vendors of the Group Companies based on the expenditures made during the twelve‑month period ending December 31, 2014 (excluding any actual purchase or threatened Action under sale orders entered into in the ordinary course of business);
(xiii) Contract with distributors and sales agents that are material to the business of the Group Companies;
(xiv) Contract that is with any Governmental Entity for the sale of products in excess of $100,000 in revenue for the fiscal year ended December 31, 2014;
(xv) collective bargaining agreement;
(xvi) Contract that relates to any future disposition or acquisition of material assets or properties by any Group Company, or any merger or business combination with respect to any Group Company, other than in the ordinary course of business;
(xvii) Contract to make capital expenditures in excess of $100,000 for which the any Group Company has any obligation or Liability that will continue shall have continuing Liabilities after the Closing Date;
(xixviii) any Contract limiting or restraining the that requires a Group Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation purchase its total requirement of any Real Property owned, leased material product or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing service from a third party or that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts contains “take or pay” provisions with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability vendor of the Company to compete Group Companies referenced in any line of business or with any Person or in any geographic area or during any period of timeSection 3.7(a)(xii);
(xix) all (i) employment agreements (excluding, for certainty, settlement or compromise of any employees who are employed at will) and (ii) Contracts with independent contractors litigation or consultants (or similar arrangements) other material Claim to which the any Group Company is or was a party and (A) under which are not cancellable without the Group Company will have any Liability after the Closing Date in excess of $250,000 or (B) which imposes material penalty or without more than ninety (90) days’ notice; andnon-monetary obligations;
(xx) any Contract relating to purchase, lease the group provision of or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate purchase of the Company, services for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term)Employee Benefit Plans; andor
(xxi) any other Contract that is relates to any completed disposition or acquisition of material assets or properties by any Group Company, or any merger or business combination with respect to any Group Company since January 1, 2011, other than sales of inventory in the operation ordinary course of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)business.
(b) The Except as set forth on Schedule 3.7(b), each Material Contract is a valid, legal and binding agreement of the applicable Group Company and (assuming that such Material Contract was duly and validly authorized, executed and delivered by the other Persons party thereto) enforceable against the applicable Group Company and, to the Company’s Knowledge, each other party thereto, in accordance with its terms, except (i) to the extent that enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other Applicable Laws affecting the enforcement of creditors’ rights generally and (ii) that the availability of equitable remedies, including specific performance, is subject to the discretion of the court before which any proceeding thereof may be brought. Each Group Company has performed in all material respects all obligations required to be performed by it under the Material Contracts to which it is a party and is not (with or without the lapse of time or the giving of notice, or both) in material compliance with the terms and provisions breach of each Material Contract. The Companyor material default thereunder and, and to the Knowledge of the Company, the no other party to any Material Contract is not in breach of or default under thereunder in any respect that is or would reasonably be expected to be, individually or in the aggregate, material to the business of its termsthe Group Companies. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, made available to the Parent a true and complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. 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. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contract.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Material Contracts. (a) Section 4.10(aExcept for the Real Property Leases, any contracts related to any Owned Real Property, the Easements or any Plans, Schedule 3.15(a) of the Company Disclosure Schedule sets forth contains a true, complete and correct list of each of the following Contracts contracts to which the an Acquired Company is a party or by which as of the Company is bound and which have not been entirely fulfilled or performed Execution Date (such Contracts, collectivelyas amended, the “Material Contracts”):
(i) all Contracts that contain restrictions with respect to payment of dividends any gathering contract, transportation contract, connection contract, processing contract, storage contract or any other distribution in respect of the Membership Units marketing contract or other Equity of the Companycommitment to gather, handle, transport, store, process, or deliver hydrocarbons;
(ii) any Contract that by its terms requires contract for the payment by or on behalf of the Company in excess of $100,000 per annum or the delivery by the Company supply of goods or services with a fair market value in excess by or to such Acquired Company that will not be terminated prior to the Closing, or that cannot be terminated on 90 or fewer days’ notice, and that provides for future payments by or to such Acquired Company of more than $100,000 1,000,000 per annum (other than purchase orders or provides for service orders entered into in the Company to receive payments ordinary course of business or bids or quotes that have been submitted in excess the ordinary course of $100,000 per annumbusiness);
(iii) all Contracts involving a loan (other any contract for the purchase of any material asset that provides for the future payment by an Acquired Company of more than accounts receivable owing from trade debtors $1,000,000 per annum or $3,000,000 in the Ordinary Course of Business) or advance to (other than travel aggregate, and entertainment advances to any contract for the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making sale of any such loan, advance or investment in excess of $25,000material asset;
(iv) any Contract contract that (i) requires the Company grants to any Person a right to purchase (including rights of first refusal, options or similar rights) any product or service in excess material assets of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or servicesuch Acquired Company;
(v) any Contract that relates to an acquisition or divestiture of material assets contract that contains covenants, indemnities any covenant of such Acquired Company that materially limits or other contractual obligations that could impose a Liability that is material purports to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, limit the ability of the such Acquired Company to compete in any line of business or with any Person or in any geographic area or during any period of timearea;
(xixvi) all any construction contract or other commitment to make any capital expenditure or to purchase a capital asset in excess of $1,000,000;
(ivii) employment agreements any agreement with any Seller or any Affiliate of a Seller;
(excluding, for certainty, viii) any employees who are employed at willcontract under which such Acquired Company has directly or indirectly guaranteed any liabilities or obligations of a third party;
(ix) and (ii) Contracts with independent contractors or consultants (or similar arrangements) any contract pursuant to which the any Acquired Company is a party pursuant to which any material Intellectual Property rights or material IT Assets are granted by or to the Acquired Company (other than (A) non-exclusive licenses implied by the sale of a product and which are not cancellable without material penalty (B) licenses of commercially-available, unmodified, off-the-shelf software or without more IT Assets licensed pursuant to standard terms and conditions for less than ninety (90) days’ notice; and$1,000,000 annually);
(xxx) any Contract to purchasepartnership, lease joint venture, limited liability company agreement or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount substantially similar contract;
(xi) all contracts requiring payments in excess of $100,0001,000,000 individually, individually (or $3,000,000 in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term)aggregate; andor
(xxixii) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)commodity hedging agreement.
(b) The Company is in material compliance with the terms and provisions of each Material Contract. The Company, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) in full force and effect and constitutes a legal, valid and binding on agreement of the applicable Acquired Company and, to the Company’s Knowledge, each other party thereto thereto, enforceable in accordance with its respective terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and (ii) similar Laws affecting the enforcement of creditors’ rights generally or by general equitable principles). No Acquired Company has received written notification that any of its Material Contracts is not in full force and effect, or that such Acquired Company or any other party thereto has breached its obligations thereunder. Each Except as set forth on Schedule 3.15(b), no Acquired Company has breached any Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material termsand, as applicable), between to the Company’s Knowledge, on one hand, no other party thereto has breached its obligations thereunder and the other parties thereto, on the other hand, with respect to the subject matter thereof. No no event or circumstance has occurred that, that (with or without notice or lapse of time or both, time) would constitute an event of default under any Material Contract or reasonably be expected to result in a termination thereof breach or would cause violation of, or permit a default under, the acceleration or other changes terms of any right Material Contract, except as would not, individually or obligation or in the loss of any benefit thereunderaggregate, reasonably be expected to be material to the Acquired Companies, taken as a whole. The Company has made available to Buyer true and complete copies of all Material Contracts, as amended. There has been no reason to believe any party to any Material Contract will not fulfill its obligations thereunder reduction in, change in all material respects, and scope of or release of dedicated acreage of the Company has not received any notice of termination or intent to terminate by any party to any Material ContractAcquired Companies except as set forth on Schedule 3.15(b).
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Sources: Membership Interest Purchase and Sale Agreement (Laredo Petroleum, Inc.)
Material Contracts. (a) Section 4.10(a) Schedule 4.11 sets forth an accurate, correct and complete list of any contracts that any Selling Party is currently a party to that apply exclusively to the operation of the Company Disclosure Schedule sets forth a true, complete Business and correct list of each to which any of the following Contracts to which the Company is a party or by which the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):descriptions set forth below apply:
(i) all All Contracts that contain restrictions with respect relating to payment the leasing of dividends or any other distribution in respect of the Membership Units or other Equity of the Companyreal property;
(ii) any Any Contract that by its terms requires the payment by or on behalf of the Company for capital expenditures in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum1,000,000;
(iii) all Contracts Any Contract involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course financing or borrowing of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment inmoney, any Person or liability for borrowed money, any agreement relating to obligation for the making deferred purchase price of any such loan, advance or investment property in excess of $25,0001,000,000 (excluding normal trade payables) or guaranteeing in any way any Contract in connection with any Person;
(iv) any Any collective bargaining agreement or other Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with labor union, works council or similar labor organization that applies to any of the sale or purchase of any product or serviceProspective Employees;
(v) Any Contract with an agent or distributor that currently sells or distributes any Contract of the Products that relates to an acquisition or divestiture resulted in sales of material assets that contains covenantsgreater than $1,000,000 of the Products in the 12-month period ending May 31, indemnities or other contractual obligations that could impose a Liability that is material to the Company2023;
(vi) Any Contract containing covenants restricting any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor Selling Party with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto Business from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material 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 timegeographical area;
(xixvii) all Any Contract related to the acquisition of a business or the equity of any other Entity in the five (i5) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) years prior to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; anddate hereof;
(xxviii) any Any Selling Parties IP Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate (other than licenses of the Company, for an amount off-the-shelf software that do not involve payments in excess of $100,000, individually 250,000 annually for all licenses or users thereof);
(in the case of a lease, per annumix) or $150,000 in the aggregate (in the case of a lease, Any Contract that provides for the entire term employment of the leaseany Prospective Employee that cannot be terminated at any time and for any reason by a Selling Party without liability to a Selling Party;
(x) Any Contract involving a joint venture, affiliation or joint development arrangement;
(xi) Any Contract with any Governmental Authority;
(xii) Any Contract which provides for payment or performance by either party thereto having an aggregate value of $3,500,000 or more on an annual basis, other than any Seller Benefit Plan or any Contract with an agent or distributor that is not including any option termrequired to be disclosed pursuant to Section 4.11(a)(v); and
(xxixiii) Any proposed arrangement of a type that, if entered into, would be a Contract described in any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)(i) through (xii) above.
(b) The Company is in Seller has delivered accurate, correct and complete copies of all Material Contracts, including all material compliance with the terms modifications, amendments and provisions of each Material Contract. The Company, supplements thereto and to the Knowledge waivers thereunder (or written summaries of the Companymaterial terms thereof, the other party if not in writing), subject to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is redactions set forth in Section 4.10(a) of the Company Disclosure Scheduletherein.
(c) Each Material Contract is (i) currently valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each , is enforceable by a Selling Party and, to Seller’s knowledge, each other party thereto, in accordance with its terms, in each case, subject to the General Enforceability Exceptions.
(d) (i) Except as set forth on Schedule 4.11(d), no Selling Party is in default under or in breach of (or is alleged to be in default under or in breach of) any Material Contract or has provided or received any notice of any intention to terminate any Material Contract, and to Seller’s knowledge, no other party is in default under or in breach of (or descriptionis alleged to be in default under or in breach of) sets forth the entire agreement and understanding (any Material Contract to which it is a party or complete description has provided or received notice of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect any intention to the subject matter thereofterminate any such Material Contract. No event has occurred, and no circumstance or circumstance has occurred thatcondition exists, that might (with or without notice or lapse of time time) (A) result in a violation or both, would constitute an event breach of default under any material provision of any Material Contract or result in a termination thereof (B) give any Person the right to accelerate the maturity or would cause or permit the acceleration or other changes performance of any right Material Contract, or obligation to cancel, terminate or the loss of any benefit thereunder. The Company has no reason to believe any party to modify any Material Contract will not fulfill its obligations thereunder in all Contract; and (ii) no Selling Party has waived any material respects, and the Company has not received any notice of termination or intent to terminate by any party to right under any Material Contract.
(de) The Company has no Liability for performance of the deferred purchase price Material Contracts will not result in any violation of property, goods or services, whether connected or not failure by any Selling Party to the acquisition of comply with any business (earn-out or other similar type of payments) or noncompetition agreementLegal Requirement.
Appears in 1 contract
Material Contracts. (a) Except for those Contracts listed and set forth in Section 4.10(a3.5(a) of the Company Seller Disclosure Schedule sets forth a trueSchedule, complete and correct list of each of the following there are no Contracts to which the Company or any of the Subsidiaries or any of the Contributing Companies (to the extent primarily relating to the use or operation of the Verizon AssetCo Assets) is a party or by is bound (other than any Contract with an Affiliate, any Verizon Affiliate Contract and any Contract entered into after May 21, 2004 in compliance with Section 5.1) that is:
(1) an agreement limiting or restraining the freedom of the Surviving Corporation or the Subsidiaries following the Closing to compete in any respect with respect to the Business with any Person (including Seller);
(2) an agreement under which the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectivelyCompany, the “Material Contracts”):
Subsidiaries or the Contributing Companies (to the extent relating to the use or operation of the Verizon AssetCo Assets) (i) all Contracts that contain restrictions with respect to payment of dividends created, incurred, assumed or any other distribution in respect of the Membership Units guaranteed (or other Equity of the Company;
may create, incur, assume or guarantee) Indebtedness, (ii) any Contract that by granted an Encumbrance on its terms requires the payment by assets, whether tangible or on behalf of the Company in excess of $100,000 per annum intangible, to secure such Indebtedness or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) extended credit or advance advanced funds to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than to customers in the Companyordinary course of business);
(3) has directly or indirectly guaranteed Indebtedness an agreement for the sale of any asset of the Company or the Subsidiaries or to grant any preferential rights to purchase any asset of the Company or the Subsidiaries, in each case in excess of $50,000250,000;
(viii4) an agreement for the lease of any bonds Owned Real Property or Contracts sublease of Guarantee any property which is the subject of a Real Property Lease, in which each case by the Company acts as a surety or guarantor with respect the Subsidiaries or any Contributing Company (to the extent relating to the use or operation of the Verizon AssetCo Assets) to any obligation (fixed or contingent) of another other Person;
(ix5) all Contracts involving (i) an agreement with respect to the provision of 911 services or E911 services and (ii) an agreement for interconnection or provision of other telecommunications services or network services, in the case of both clauses (i) and (ii), other than pursuant to publicly filed tariffs;
(6) an agreement for the purchase or sale of any business, corporation, partnership, joint venture, partnershipassociation or other business organization or any division, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development operating unit or similar arrangementproduct line thereof;
(x7) all Contracts involving an agreement (or a group of purchase orders, work orders and other similar arrangements with a particular Person with respect to a particular product or service), other than as set forth above and other than any resolution Contract in respect of Third Party Intellectual Property, any Plan, Labor Contract or settlement Employment Agreement, with respect to which either (i) the aggregate amount to be received by the Company, the Subsidiaries or any of the Contributing Companies (to the extent primarily relating to the use or operation of the Verizon AssetCo Assets) thereunder with respect to calendar year 2004 is expected to exceed $250,000 based on payments which have been made under such agreement in calendar year 2003 (including individual case basis agreements) or (ii) the aggregate amount to be paid by the Company, the Subsidiaries or any of the Contributing Companies (to the extent primarily relating to the use or operation of the Verizon AssetCo Assets) thereunder with respect to calendar year 2004 is expected to exceed $1,000,000 based on payments which have been made under such agreement in calendar year 2003 and such agreement is not cancelable on 60 days’ notice;
(8) an agreement which creates a partnership or joint venture or similar arrangement with respect to a business venture;
(9) an agreement of indemnification or similar commitment with respect to the obligations or liabilities of any actual other Person in an aggregate amount in excess of $500,000;
(10) an agreement with any of the entities listed on Section 3.22(ii) of the Seller Disclosure Schedule (other than any agreement that will be terminated or threatened Action under from which the Company has any obligation or Liability that and the Subsidiaries will continue after the Closing Date;be released pursuant to Section 5.9(e)); or
(xi11) any Contract limiting or restraining an agreement entered into other than in the Company ordinary course of business concerning confidentiality and nondisclosure, whether the Company, a Subsidiary or any successor thereto from engaging or competing in any manner, in any location or in any business;
Contributing Company (xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which to the Company is a party providing for extent relating to the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management use or operation of any Real Property owned, leased the Verizon AssetCo Assets) is the beneficiary or used by the Company;
obligated party thereunder (xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material 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;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which regarding the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate potential sale of the CompanyBusiness since January 1, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a2003).
(b) The Company Except as set forth in Section 3.5(b) of the Seller Disclosure Schedule, each Contract required to be set forth on Section 3.5(a) of the Seller Disclosure Schedule (each, a “Material Contract”), as of May 21, 2004 and as of the Closing Date (other than as permitted under Section 5.1(l) and other than any Material Contract that may expire between May 21, 2004 and the Closing) (i) is valid and in material compliance full force and effect and is a valid and legally binding obligation of the Company, a Subsidiary or the applicable Contributing Company, as applicable, enforceable against each such party in accordance with the its terms and provisions (ii) to the Knowledge of Seller, is a valid and legally binding obligation of the other party thereto, enforceable against each such party in accordance with its terms, in each case except to the extent that such enforcement may be limited by applicable 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). Except as set forth in Section 3.5(b) of the Seller Disclosure Schedule, neither the Company, any of the Contributing Companies nor any of the Subsidiaries is party to a Material Contract. The CompanyContract where such party is, and to the Knowledge of the CompanySeller, the no other party to any Material Contract is not thereto is, in breach or default under any of its terms. The Company has not received notice in the performance, of any breachmaterial obligation, default covenant or notice of termination by any Person under any condition contained in the Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one handContracts, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No no event or circumstance has occurred that, which with or without the giving of notice or lapse of time time, or both, would constitute an event a default by the Company, any of default under the Contributing Companies or any Material Contract or result in of the Subsidiaries of a termination thereof or would cause or permit the acceleration or other changes of any right or material obligation or the loss of any benefit thereunder. The Company has no reason to believe Except as disclosed in Section 3.5(b) of the Seller Disclosure Schedule, none of Seller, the Company, any of the Contributing Companies or any of the Subsidiaries have received any written notice of intention of any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contract. Complete and correct copies of all Material Contracts, together with all modifications and amendments thereto to May 21, 2004, have been made available to Buyer or its representatives.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Sources: Agreement of Merger (Hawaiian Telcom Communications, Inc.)
Material Contracts. (a) Section 4.10(a) Schedule 3.7 of the Company Seller Disclosure Schedule sets forth a true, complete and correct list of Letter lists each of the following Contracts Material Contract to which the a Target Company is a party and under which either a Target Company or by which any other party thereto has unperformed material obligations or unsatisfied material liabilities as of the Company is bound Effective Date and which have not been entirely fulfilled or performed (such the Closing Date. The following Contracts, collectivelyand no others, the will be deemed to be “Material Contracts”):: any Contract that
(a) is an employment agreement with any current or former employee pursuant to which a Target Company has any actual or contingent obligation to provide compensation and/or benefits after the Closing Date in consideration for past, present or future services; provided, that for the avoidance of doubt, such agreements do not include employment offer letters solely for at-will employment which provide for nothing other than cash compensation (other than incentive compensation or severance obligations) payable to employee up to the date of termination of employment;
(b) provides for the payment or receipt by a Target Company of more than $150,000 per year, including any such Contracts with customers or clients;
(c) is a Real Property Lease;
(d) obligates a Target Company to make capital expenditures with respect to which the remaining unpaid balance is in excess of $150,000;
(e) expressly restricts the ability of a Target Company to compete in any manner or place or solicit, engage or hire any Person;
(f) relates to the borrowing of money or guarantee by a Target Company or to mortgaging, pledging or otherwise placing a Lien on any of their assets;
(g) grants an option or a right of first refusal, right of first-offer or similar preferential right to purchase or acquire any material asset of a Target Company, other than in the ordinary course of business;
(h) grants a license or sublicense by a Target Company to a third party under the Company Intellectual Property, other than Contracts that involve total payments that do not exceed $100,000 in the aggregate;
(i) all Contracts that contain restrictions with respect grants a license or sublicense by a third party to payment of dividends a Target Company, but not including licenses to (i) commercially available “off-the-shelf” software, and (ii) freeware or any other distribution in respect of the Membership Units or other Equity of the Companyopen source programs;
(iij) any is a joint venture or partnership agreement or similar Contract that by its terms requires the payment by or on behalf of the Company in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess sharing of $100,000 per annumany profits;
(iiik) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance relates to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenantsor capital stock of any Person other than inventory in the ordinary course of the business, indemnities or other contractual obligations that could impose provides for a Liability that is material to the dissolution, merger, consolidation, business combination, sale of stock or all or substantially all assets or similar extraordinary transaction involving a Target Company;
(vil) is with any Contract labor union or association;
(m) relates to the lease of any material asset to or from any Target Company under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other lessee is required to pay more than a Permitted Encumbrance$150,000 per year;
(viin) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently Tax sharing agreement involving a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Target Company;
(xvo) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) Contract between or among any Contracts that limit, in any material 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;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a).
(b) The Company is in material compliance with the terms and provisions of each Material Contract. The Company, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Target Company, on the one hand, and the other parties theretoany Seller, Affiliate of any Seller or any officer or director of any Target Company, on the other hand, except for any Contract arising out of, or relating to, such persons employment with respect a Target Company; or
(p) any bond or surety arrangement. The Material Contracts are valid and binding obligations of a Target Company enforceable in accordance with their terms (except that (i) such enforcement may be subject to any bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other laws, now or hereafter in effect, relating to or limiting creditors’ rights generally and (ii) enforcement of such Contracts, including, among other things, the remedy of specific performance and injunctive and other forms of equitable relief, may be subject to equitable defenses and to the subject matter thereofdiscretion of the court before which any proceeding therefor may be brought). No material breach or default, alleged material breach or default, or, to the Knowledge of Sellers, event which would (with the passage of time, notice or circumstance both) constitute a material breach or default under a Material Contract by a Target Company has occurred thatand is continuing. To the Knowledge of Sellers, with notice no other party to a Material Contract is in material breach 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. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any such Material Contract. True, correct and complete copies of all Material Contracts have been made available to Buyer or Parent.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Material Contracts. Except as expressly disclosed in Section 1(h) of the Perfection Certificate, as of the Closing Date no Loan Party is (a) Section 4.10(aa party to any contract which has had or could reasonably be expected to have a Material Adverse Effect or (b) in default in the performance, observance or fulfillment of any of the Company Disclosure Schedule sets forth a trueobligations, complete and correct list of each of the following Contracts covenants or conditions contained in (x) any contract to which the Company it is a party or by which any of its assets or properties is bound, which default, individually or in the Company aggregate, could reasonably be expected to have a Material Adverse Effect or result in liabilities in excess of $200,000 or (y) any Material Contract. Except for the contracts and other agreements listed in Section 1(h) of the Perfection Certificate, no Loan Party is bound and which have not been entirely fulfilled or performed (such Contractsparty, collectivelyas of the Closing Date, the “Material Contracts”):
to any (i) all Contracts that contain restrictions with respect to payment of dividends collective bargaining, works council, shop, enterprise or any other distribution in respect of the Membership Units recognition agreement or other Equity of the Company;
Contract with any Union, (ii) any Contract that by its terms requires the payment by or on behalf of the Company in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum;
employment agreement, (iii) all Contracts involving a loan contract relating to (A) Indebtedness, (B) the PPP Loan or (C) the mortgaging, pledging or otherwise placing of an Lien (other than accounts receivable owing from trade debtors in the Ordinary Course of BusinessPermitted Liens) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business)on any Loan Party’s assets, or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) lease or agreement under which it is the lessee of, or holds or operates any Contract that (i) requires personal property owned by any other party, or lease or agreement under which it is the Company to purchase lessor of or permits any product or service in excess of $100,000 from a third party to hold or (ii) requires that the Company deal exclusively with a third party in connection with the sale operate any Loan Party property, real or purchase of any product or service;
personal, (v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Companycontract, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement purchase orders entered into in the Ordinary Course of Business;
, (xviiA) with the twenty-five (25) customers and twenty-five (25) suppliers/vendors of the Loan Parties that have purchased from or sold to, as applicable, the Loan Parties the most products or services (based upon consideration received/paid by the Loan Parties) since January 1, 2019, (B) for the purchase or sale of materials, supplies, merchandise, equipment, parts or other property or services with other customers or suppliers requiring aggregate future payments in excess of $10,000, or (C) any Contracts guaranty of any obligation described in clauses (A) and (B), (vi) contract for capital expenditures or the acquisition or construction of fixed assets for the benefit and use of the Loan Parties, the performance of which involves unpaid commitments or liabilities in excess of $50,000, (vii) contract (A) for the acquisition (by merger or otherwise) of any business or securities of another Person or all or substantially all of the of the assets of another Person or (B) for the disposition of the assets or of any business enterprise of any Loan Party other than dispositions of inventory and products of the Loan Parties in the Ordinary Course of Business, in each case that is the source of any surviving rights, obligations or other provisions, (viii) license, sublicense, consent to use agreement, settlement, coexistence agreement, covenants not to ▇▇▇, permission or other contract pursuant to which a Loan Party grants rights to any third party or receives a grant of rights from any third party to use any Intellectual Property material to the operation of the business of a Loan Party, other than agreements relating to off-the-shelf commercially available software available for an annual or one time license fee of less than $10,000 in the aggregate, (ix) contract that requires a Loan Party to purchase its total requirements of any product or service from a third party or that contain “take or pay” provisions, (x) material broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting or advertising contract, (xi) contract with any Governmental Authority to which the Company is a party;
Authority, (xviiixii) any Contracts contract that limit, in any material respect, limits the ability of the Company a Loan Party to compete in any line of business or with any Person or in any geographic area or during any period of time;
, (xixxiii) all (i) employment agreements (excludingcontract that provides for any joint venture, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (partnership or similar arrangements) to which arrangement by the Company is a party Company; or any other contract involving aggregate consideration in excess of $50,000 and which are which, in each case, cannot cancellable be cancelled by the Loan Party without material penalty or without more than ninety (90) 90 days’ notice; and
. (xx) any Contract to purchaseeach such contract and agreement, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (described in the case of preceding clauses (i) to (xiii), a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a).
(b) The Company is in material compliance with the terms and provisions of each "Material Contract"). The Company, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract listed on Schedule 7.18 is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract effect (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect except to the subject matter thereof. No extent terminated after the Closing Date) and there are no events of defaults thereunder or any event or circumstance has occurred that, which with notice or lapse passage of time time, or both, would constitute an a material 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. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contract.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Material Contracts. (a) Section 4.10(aSchedule 3.13(a) of the Company Disclosure Schedule sets forth a true, list that is correct and complete and correct list of each in all material respects of the following Transferred Contracts (including the Contracts required to which the Company is a party or by which the Company is bound be listed on Schedules 3.10(e), 3.13(a) and which have not been entirely fulfilled or performed (such Contracts, collectively3.23, the “Material Contracts”):
(i) all any Contracts that contain restrictions with respect where (A) the performance remaining thereunder involves aggregate consideration to payment or by Seller in excess of dividends $150,000 per annum or any $500,000 over the life of such Contract, other distribution in respect of the Membership Units than “shrink wrap” or “click through” license agreements or other Equity software license agreements entered into in the Ordinary Course of the CompanyBusiness and (B) such agreement is not cancelable, without material penalty, by Seller on 90 days’ or less notice;
(ii) any Contract that by its terms requires Contracts which restrict or limit the payment by or on behalf ability of the Company in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company Seller to receive payments in excess of $100,000 per annum;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing compete in any mannerline of business, in with any location other Person or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (geographic area other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xviiiii) pledges or security agreements or similar arrangements constituting a Lien upon the Transferred Assets and any settlement or similar agreement in respect of any Litigation;
(iv) any Contracts for the sale or purchase of personal property having a value individually, with any Governmental Authority respect to which all sales or purchases thereunder, in excess of $150,000, other than agreements with respect to sale of inventory entered into in the Company is a partyOrdinary Course of Business;
(xviiiv) any Contracts that limitContracts, for the sale or purchase of fixed assets or real estate having a value individually, with respect to all sales or purchases thereunder, in any material respect, the ability excess 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$150,000;
(xixvi) all any Contract relating to the acquisition or disposition of any material business of Seller (whether by merger, consolidation or other business combination, sale of securities, sale of assets or otherwise);
(vii) any Contract concerning or consisting of (i) employment agreements (excludinga partnership, for certaintylimited liability company or joint venture agreement, any employees who are employed at will) and (ii) Contracts with a sponsorship agreement or (iii) corporate licensing agreement;
(viii) any Contract under which Seller is, or may become, obligated to incur any severance pay or special compensation obligations which would become payable by reason of, this Agreement or the transactions contemplated hereby;
(ix) any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or other plan or arrangement for the benefit of the Seller’s current or former directors, managers, officers, employees, consultants and independent contractors contracts (other than a Benefit Plan set forth on Schedule 3.11(a));
(x) any agency, sourcing, dealer, distributor, sales representative, marketing or consultants other similar agreement;
(xi) any Contract that contains most favored customer pricing provisions, rights of return or grants any exclusive rights, rights of first refusal, rights of first negotiation or similar arrangementsrights to any Person;
(xii) to which any lease in respect of the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ noticeOccupied Real Property; and
(xxxiii) any Contract to purchase, lease or otherwise acquire the right to own, use or lease with any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)Governmental Authority.
(b) The Company is Seller has delivered to Buyer true, accurate and complete copies of each Contract required to be listed on Schedule 3.13(a), in material compliance each case, as amended or otherwise modified and in effect. All Material Contracts are in full force and effect and enforceable against Seller and, to Seller’s Knowledge, each other party thereto, in each case in accordance with the express terms and provisions of each Material Contractthereof. The CompanyExcept as set forth on Schedule 3.13(b), and to the Seller’s Knowledge in respect of the Companyany violation, breach or event of default of the other party to the Contract, there does not exist under any Material Contract is not in any material violation, breach or default under any event of its terms. The Company has not received notice default, or alleged material violation, breach or event of any breachdefault, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No event or circumstance has occurred condition that, with after notice or lapse of time or both, would constitute an a material violation, breach or event of default under any Material Contract thereunder on the part of Seller or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material ContractAffiliates.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Material Contracts. (a) Section 4.10(a) Schedule 3.11 of the Company Seller Disclosure Schedule Letter sets forth as of the date hereof a true, complete and correct list of each of the following Contracts that relate directly and predominantly to the Business to which the Company a Seller Entity or a Conveyed Entity is a party or by which the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):), materially correct and complete copies of which Seller has made available to Purchaser prior to the Closing:
(i) all Contracts that contain restrictions with respect to payment each Equipment Lease which entails annual rental payments in excess of dividends $250,000 per annum or any other distribution $1,000,000 in respect of the Membership Units or other Equity of the Companyaggregate;
(ii) each Contract for goods and/or services between Seller and/or any Contract that by of its terms requires Affiliates (other than the payment by Business) or on behalf any of the Company in excess officers, directors or employees of $100,000 per annum or Seller and/or any of its Affiliates (other than the delivery by Business), on the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for one hand, and the Company to receive payments in excess of $100,000 per annumBusiness, on the other hand;
(iii) all Contracts involving a each mortgage, indenture, security agreement, pledge, note, loan agreement or guarantee (other than accounts receivable owing from trade debtors excluding items set forth in the Ordinary Course of BusinessSchedule 3.13(a) or advance to (other than travel and entertainment advances to the employees of the Company extended Seller Disclosure Letter) in the Ordinary Course respect of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment Indebtedness in excess of $25,000500,000;
(iv) any each customer Contract that (i) requires expected to result in payment to the Company to purchase any product applicable Asset Selling Entity or service Conveyed Entity in excess of $100,000 from a third party 5,000,000 per annum or (ii) requires that $15,000,000 in the Company deal exclusively with a third party in connection with aggregate over the sale or purchase of any product or servicelast three years;
(v) any each outstanding Contract that relates with vendors of the Business expected to an acquisition result in payment by the applicable Asset Selling Entity or divestiture Conveyed Entity, respectively, in excess of material assets that contains covenants, indemnities $5,000,000 per annum or other contractual obligations that could impose a Liability that is material to $15,000,000 in the Companyaggregate over the last three years;
(vi) any each Contract under which materially limiting the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset ability of the Companyapplicable (A) Asset Selling Entity (or following the Closing, other than a Permitted Encumbrancethe Business) to compete with any Person in connection with such entity’s conduct of the Business or (B) Conveyed Entity to compete with any Person in connection with such entity’s conduct of the Business;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;each material joint venture Contract; and
(viii) any bonds each Contract pursuant to which Seller or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation its Affiliates (fixed or contingentA) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to licenses any Intellectual Property including, without limitation, material to the Company’s Business as currently conducted (excluding licenses for commercial off the shelf computer software that are generally available which have an aggregate acquisition cost of $100,000 or less) or (B) grants a license to use any Transferred Intellectual Property material to the Business (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course ordinary course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material 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;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(abusiness).
(b) The Company is in material compliance with the terms and provisions of each Material Contract. The Company, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. 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. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contract.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Tyco Electronics Ltd.)
Material Contracts. (a) Section 4.10(a2.7(a) of the Company Disclosure Schedule sets forth forth, as of the date of this Agreement, a true, complete and correct list of each Contract (other than completed purchase orders entered into in the ordinary course of business) of the following Contracts to which Group Companies, that is of the Company is type set forth below (each, a party or by which the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material ContractsContract”):
(i) all a Contract (or group of related Contracts that contain restrictions with respect to payment a single transaction or series of dividends related transactions), other than a Government Contract, that involves payments, performance or services or delivery of goods or materials to or by any other distribution Group Company of any amount or value in respect of the Membership Units excess of, or other Equity of the Companyreasonably expected to exceed, $250,000 in any twelve (12)-month period;
(ii) any a Contract that by its terms requires the payment by is a joint venture agreement, partnership agreement, strategic alliance agreement or on behalf of the Company in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annumsimilar agreement;
(iii) all Contracts involving a loan Contract that contains any (other than accounts receivable owing from trade debtors A) “most favored nation” pricing or similar rights in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making favor of any such loanPerson, advance or investment in excess of $25,000;
(ivB) provision expressly requiring any Contract that (i) requires the Company Group Companies to purchase any product goods or service in excess of $100,000 services exclusively from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
, (ixC) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, express restriction on the ability of the Company any Group Companies to compete in any line of business or with any Person or to provide services generally or in any market segment or any geographic area area, or during (D) restriction on the ability of any period Group Companies to solicit or hire any Person (including any employees, customers or vendors) other than such restrictions set forth in confidentiality or non-disclosure agreements entered into in the ordinary course of timebusiness;
(xixiv) all a Contract pursuant to which any Group Companies (ior, after the Closing, Buyer and its Subsidiaries) employment agreements has incurred or become liable for any Funded Indebtedness owed to a Person other than any other Group Companies, or pursuant to which any Group Companies has granted any Lien on any of its assets or any assets of any Group Companies have become subject to any Lien;
(excludingv) a Contract (A) granting an option to acquire, for certaintysell, lease or license any asset of any Group Companies or (B) granting any right of first offer, right of first refusal or right of first negotiation in respect of any asset of any Group Companies;
(vi) a Contract pursuant to which any Group Companies is committed to make capital expenditures in excess of $250,000 in the aggregate that are not subject to reimbursement by the counterparty under a Contract;
(vii) a Contract relating to (A) the disposition (whether by merger or sale or purchase of stock, assets or otherwise) of any assets of, or any Equity Securities in, any employees who are employed at willGroup Companies or (B) the acquisition (whether by merger or sale or purchase of stock, assets or otherwise) by any Group Companies of any material assets of, or any Equity Securities in, any Person, in each case, other than sales of products and (ii) Contracts services in the ordinary course of business consistent with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ noticepast practice; and
(xxviii) a Contract pursuant to which rights in any Contract material Intellectual Property Rights are granted, whether by any Group Companies to purchase, lease any other Person or otherwise acquire the right by any other Person to own, use or lease any property or assetsGroup Companies, including such Contracts entered into by an Affiliate of the Companylicense agreements, for an amount in excess of $100,000coexistence agreements and covenants not to ▇▇▇, individually but excluding any (A) “off-the-shelf” Software that is readily available pursuant to a commercial license agreement, (B) non-exclusive licenses granted to customers, distributors, resellers or sales representatives in the case ordinary course of a leasebusiness, per annum(C) open-source licenses, and (D) assignments of Intellectual Property Rights from employees or $150,000 independent contractors to any Group Company in the aggregate (in the case ordinary course of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)business.
(b) The Company Except as set forth on Section 2.7(b) of the Disclosure Schedule, (i) each Material Contract and each Material Government Contract is in material compliance with the terms full force and provisions of each Material Contract. The Companyeffect and is a legal, valid and binding obligation of, and is enforceable against, the Group Companies as applicable, in accordance with its terms, and, to the Knowledge of the CompanySeller, is a legal, valid and binding obligation of, and is enforceable against, the other parties thereto in accordance with its terms, in each case as such enforcement may be limited by the Remedies Exception; (ii) as to each Material Contract and each Material Government Contract, there does not exist thereunder any material breach or default on the part of any Group Companies or, to the Knowledge of Seller, any other party to any Material Contract is or Material Government Contract, and there does not in exist, to Seller’s Knowledge, any event, occurrence or condition, which (after notice, passage of time or both) would constitute or give rise to any such breach or default under thereunder; and (iii) none of Seller or any of its terms. The Company Affiliates (including any of the Group Companies) has not received any written or, to the Knowledge of Seller, threatened notice of any breachtermination, default cancellation or notice of termination by any Person under non-renewal that is currently in effect with respect to any Material Contract or Material Government Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid Seller has made available to Buyer a true, correct and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each complete copy of each Material Contract (or description) sets forth and, in the entire agreement and understanding (or complete description event of any Material Contract that is not written, a summary of the material terms, as applicableterms thereof), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. 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. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contract.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Material Contracts. (a) Except as set forth in Section 4.10(a3.9(a) of the Company Disclosure Schedule sets forth a trueLetter, complete and correct list of each as of the following Contracts to which date of this Agreement, neither the Company nor any of its Subsidiaries is a party to or bound by which the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):any:
(i) all Contracts Contract (other than this Agreement) that contain restrictions with respect would be required to payment of dividends or be filed by the Company as an exhibit to any other distribution in respect of the Membership Units or other Equity of the CompanyCompany SEC Documents;
(ii) any Contract that by its terms requires the payment by indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage or on behalf other evidence of the Company Indebtedness or agreement providing for Indebtedness (including deferred purchase price of property and capital leases) in excess of $100,000 per annum or 2.5 million individually and $10 million in the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annumaggregate;
(iii) all Contracts involving Contract that is a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000Labor Agreement;
(iv) any Contract that (i) requires containing covenants of the Company or any of its Subsidiaries to purchase any product indemnify or service in excess hold harmless another Person, unless such indemnification or hold harmless obligation would not reasonably be expected to exceed a maximum of $100,000 from 2.5 million (other than Contracts related to the sale of Company Products, ordinary course employment Contracts with non-executive employees or Contracts relating to a third party director’s or (ii) requires that the Company deal exclusively with a third party in connection officer’s service as such with the sale or purchase of any product or serviceCompany);
(v) any Contract that relates is a material sole source supply Contract or material original equipment manufacturer Contract or material private label Contract;
(vi) Contract that contains a put, call, right of first refusal, lock-up or other provision pursuant to an acquisition which the Company or divestiture any of material its Subsidiaries would be required to acquire or dispose of, or would be restricted from acquiring or disposing of, as applicable, any equity interests of any Person or assets that contains covenantshave a fair market value or purchase price of more than $2.5 million (for the avoidance of doubt, indemnities this clause (vi) shall not be deemed to include any purchase orders entered into the ordinary course of business pursuant to which the Company purchases raw materials or utilities);
(vii) settlement agreement or similar agreement with a Governmental Entity or Order to which the Company or any of its Subsidiaries is a party involving future performance by the Company or any of its Subsidiaries in any such case, which is material to the Company and its Subsidiaries, taken as a whole;
(viii) Contract (other than this Agreement) providing for indemnification (including any obligations to advance funds for expenses) of the current or former directors or officers of the Company or any of its Subsidiaries;
(ix) Contract (other than this Agreement, purchase orders entered into in the ordinary course of business or agreements between the Company and any of its wholly owned Subsidiaries or between any of the Company’s wholly owned Subsidiaries) that resulted in aggregate payments to or from the Company or any of its wholly owned Subsidiaries for more than $2.5 million in calendar year 2012, or that to the Company’s Knowledge would reasonably be expected to result in aggregate payments to or from the Company or any of its wholly owned Subsidiaries for more than $5 million in calendar year 2013;
(x) Contract that is a partnership, limited liability company, joint venture or other contractual obligations similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, limited liability company or joint venture in which the Company owns, directly or indirectly, any voting or economic interest of 10% or more, other than with respect to any directly or indirectly wholly owned Subsidiary of the Company (each, a “Joint Venture”);
(xi) Contract that could impose a Liability grants “most favored nation” status in respect of any matter that is reasonably likely to be material to the Company;
(vixii) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining between the Company or any successor thereto from engaging of its Subsidiaries, on the one hand, and any director or competing in officer of the Company or any manner5% Holder of the Company or their immediate family members, in any location on the other hand (other than employment Contracts, indemnification Contracts and other Contracts relating to a director’s or in any business;
(xii) all Affiliate Contractsofficer’s service as such with the Company);
(xiii) any Company IP Agreements as well as any Contract under to which the Company or any of its Subsidiaries is a party providing for the license party, or by which any of or settlement with respect to any Intellectual Property including, without limitationthem are bound, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under ultimate contracting party of which is, to the Knowledge of the Company (after inquiry of certain senior members of the legal department), is currently a licenseeGovernmental Entity;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by pursuant to which (A) the Company;, any of its Subsidiaries or any of its Joint Ventures grants to any third party any license, release, covenant not to ▇▇▇ or similar right with respect to any material Owned Intellectual Property or (B) the Company, any of its Subsidiaries or any of its Joint Ventures receives a license, release, covenant not to ▇▇▇ or similar right with respect to any material Intellectual Property owned by a third party (other than generally commercially available software in object code form); or
(xv) all collective bargaining agreements entered into by the Company;
(xvi) Contract that contains any Contract providing that provision expressly requiring the Company indemnify or any of its Subsidiaries to purchase or sell any material goods or services exclusively to or from another Person or that otherwise purports to limit either (x) the type of business in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
or its Subsidiaries may engage, (xviiiy) the manner or locations in which any Contracts that limitof them may so engage in any business or (z) the rights of the Company or any of its Subsidiaries to make, sell or distribute any products or services, in each case, in any material respect, the ability of the Company to compete . Any such Contract described in any line of business or with any Person or in any geographic area or during any period of time;
clauses (xixi)-(xv) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)“Material Contract.”
(b) The Company is in material compliance with the terms A true and provisions correct copy of each Material Contract. The CompanyContract has previously been made available to Parent (except with such redactions as may be clearly marked on such copy) and each Material Contract is valid and binding on the Company or its Subsidiaries, and as the case may be, and, to the Knowledge of the Company, the each other party thereto, subject to any the General Enforceability Exceptions, and is in full force and effect in all material respects. Except as would not reasonably be expected to have, individually or in the aggregate, a Material Contract is not in breach or default under Adverse Effect, (i) neither the Company nor any of its terms. The Company has not received notice Subsidiaries is (and, to the Knowledge of any breachthe Company, no other party is) in default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force the Company and effect. Each its Subsidiaries have performed all material obligations required to be performed by them to date under the Material Contract Contracts and are not (with or description) sets forth without the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No event or circumstance has occurred that, with notice or lapse of time or the giving of notice, 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. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations breach thereunder in all material respects, and (iii) neither the Company nor any of its Subsidiaries has not received any notice of termination or intent with respect to, and, to terminate by any the Knowledge of the Company, no party has threatened to terminate, any Material Contract.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Material Contracts. (a) Except for this Agreement and the Contracts specifically identified in Section 4.10(a) 2.21 of the Company Seller Disclosure Schedule sets forth Letter, neither Seller is a trueparty to or bound by, complete and correct list of each the Purchased Assets are not subject to any of the following Contracts to which the Company is (each a party or by which the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material ContractsContract”):
(i) all Contracts that contain restrictions with respect to payment of dividends any distributor, original equipment manufacturer (“OEM”), reseller, value added reseller (“VAR”), sales, advertising, agency or any other distribution in respect of the Membership Units or other Equity of the Companymanufacturer’s representative Contract;
(ii) any continuing Contract that by its terms requires for the payment by purchase, sale or on behalf license of materials, supplies, equipment, services, software, Intellectual Property or other assets involving in the case of any such Contract more than $50,000 over the life of the Company in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annumContract;
(iii) all Contracts involving a loan (any Contract that expires or may be renewed at the option of any Person other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance Seller so as to (other expire more than travel and entertainment advances to one year after the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000Agreement Date;
(iv) any trust indenture, mortgage, promissory note, loan agreement or other Contract that (i) requires for the Company borrowing of money, any currency exchange, commodities or other hedging arrangement or any leasing transaction of the type required to purchase any product or service be capitalized in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively accordance with a third party in connection with the sale or purchase of any product or serviceGAAP;
(v) any Contract that relates to an acquisition or divestiture for capital expenditures in excess of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to $50,000 in the Companyaggregate;
(vi) any Contract under which limiting the Company has freedom of any outstanding Indebtedness Seller to engage or evidencing an Encumbrance on participate, or compete with any property other Person, in any line of business, market or asset geographic area, or to make use of any Seller-Owned IP Rights, or any Contract granting most favored nation pricing, exclusive sales, distribution, marketing or other exclusive rights, rights of refusal, rights of first negotiation or similar rights and/or terms to any Person, or any Contract otherwise limiting the Companyright of any Seller to sell, other than a Permitted Encumbrancedistribute or manufacture any products or services or to purchase or otherwise obtain any software, components, parts, subassemblies or services;
(vii) all Contracts under any Contract pursuant to which any Person (Seller is a lessor or lessee of any real property or any machinery, equipment, motor vehicles, office furniture, fixtures or other than the Company) has directly or indirectly guaranteed Indebtedness of the Company personal property involving aggregate payments in excess of $50,00010,000 per annum;
(viii) any bonds Contract (A) with any Affiliate or Contracts of Guarantee in which the Company acts as a surety or guarantor (B) with respect to any obligation (fixed or contingent) of another PersonPerson with whom any Seller does not deal at arm’s length;
(ix) all Contracts involving any joint ventureagreement of guarantee, partnershipsupport, strategic allianceassumption or endorsement of, shareholders’ agreementor any similar commitment with respect to, co-marketingthe obligations, co-promotionliabilities (whether accrued, joint development absolute, contingent or similar arrangementotherwise) or indebtedness of any other Person;
(x) all Contracts involving any resolution Contract under which any Seller is a licensor of Intellectual Property or settlement provider of services (other than under its unmodified form of standard customer agreement, the form of which has been made available to counsel to Acquiror), or agrees to encumber, not assert, transfer or sell rights in or with respect to any actual Intellectual Property or threatened Action to provide source code to any third party, or under which the Company has Seller is a licensee of any obligation Intellectual Property (except for “shrink wrap” and similar widely available commercial end-user licenses that have an individual acquisition cost of $1,000 or Liability that will continue after less) or providing for the Closing Datedevelopment of any software, content, technology or Intellectual Property, independently or jointly, by or for any Seller;
(xi) any Contract limiting to license or restraining authorize any third party to manufacture or reproduce any of the Company or any successor thereto from engaging or competing in any manner, in any location or in any businessSeller Products;
(xiiA) all Affiliate Contractsany joint venture Contract or (B ) any other Contract that involves a sharing of revenues, profits, cash flows, expenses or losses with other Persons or the payment of royalties to any other Person in excess of $25,000 per annum;
(xiii) any Company IP Agreements as well as agreement of indemnification or warranty or any Contract under which containing any support, maintenance or service obligation or cost on the Company is a party providing for the license part of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property Seller (other than commercially under its unmodified form of standard customer agreement, the form of which has been made available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licenseeto counsel to Acquiror);
(xiv) any Contract concerning for the acquisition, disposition, occupancy, management or operation employment of any Real Property owneddirector, leased officer, employee or used consultant of any Seller or any other type of Contract with any officer, employee or consultant of the Seller that is not immediately terminable by such Seller without cost or liability, including any Contract requiring it to make a payment to any director, officer, employee or consultant on account of the CompanyAsset Purchase, any transaction contemplated by this Agreement or any Contract that is entered into in connection with this Agreement;
(xv) all collective bargaining agreements entered into by any Contract under which any Seller provides any advice or services to any third party, including any consulting Contract, professional Contract or software implementation, deployment or development services Contract, or support services Contract (including, for each such contract, a description of the Companypercentage of completion and expected additional hours, resources and costs necessary to complete such services);
(xvi) any Contract providing that the Company indemnify with any Person in an amount that would be material to the Company, other than labor union or any such collective bargaining agreement entered into in the Ordinary Course of Businessor similar contract with any Seller’s employees;
(xvii) any Contracts Contract with any Governmental Authority to which investment banker, broker, advisor or similar party, or any accountant, legal counsel or other Person retained by any Seller, in connection with this Agreement and the Company is a partytransactions contemplated hereby;
(xviii) any Contracts that limitContract pursuant to which any Seller has acquired or divested a business or entity, or assets of a business or entity, whether by way of merger, consolidation, purchase of stock, purchase or sale of assets, license or otherwise, or any Contract pursuant to which any Seller has any material ownership interest in any material respect, the ability other Person (other than Parent’s ownership of the Company to compete in any line of business or with any Person or in any geographic area or during any period of timeSub);
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts Contract with independent contractors any Governmental Entity or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; andany Seller Authorization;
(xx) any confidentiality, secrecy or non-disclosure Contract to purchase, lease or otherwise acquire the right to own, use or lease in effect other than any property or assets, including such Contracts Contract entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (with customers in the case ordinary course of business pursuant to the Seller’s standard unmodified form (a lease, per annum) or $150,000 in the aggregate (in the case copy of a lease, for the entire term of the lease, not including any option termwhich has been provided to counsel to Acquiror); and;
(xxi) any settlement agreement entered into within five years prior to the date hereof;
(xxii) any Contract pursuant to which rights of any third party are triggered or become exercisable, or under which any other consequence, result or effect arises, in connection with or as a result of the execution of this Agreement or the consummation of the Asset Purchase or other transactions contemplated hereunder, either alone or in combination with any other event; or
(xxiii) any other oral or written Contract or obligation not listed in clauses (i) through (xxii) that individually has a value in excess of $50,000 or is otherwise material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)any Seller or its respective business, operations, financial condition, properties or assets.
(b) The Company All Material Contracts are in written form. Each Seller, as applicable, has materially performed all of the obligations required to be performed by it and is in material compliance with the terms and provisions of each Material Contract. The Companyentitled to all benefits under, and to the Knowledge knowledge of the CompanySellers, the other party to any Material Contract is not alleged to be in breach or material default under any of its terms. The Company has not received notice of any breachin respect of, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) Each of the Company Disclosure Schedule.
(c) Each Material Contract Contracts is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (There exists no default or description) sets forth the entire agreement and understanding (event of default or complete description of the material termsevent, as applicable)occurrence, between the Company, on one hand, and the other parties thereto, on the other handcondition or act, with respect to the subject matter thereof. No event any Seller or circumstance has occurred thatto Sellers’ knowledge, with notice or respect to any other contracting party, which, with the giving of notice, the lapse of time or boththe happening of any other event or conditions, would constitute an reasonably be expected to (i) become a default or event of default under any Material Contract or result in (ii) give any third party (A) the right to declare a termination thereof default or would cause exercise any remedy under any Material Contract, (B) the right to accelerate the maturity or permit the acceleration or other changes performance of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to Seller under any Material Contract will not fulfill its obligations thereunder in all material respectsContract, and or (C) the Company right to cancel, terminate or modify any Material Contract. Neither Seller has not received any notice of termination or intent other communication regarding any actual or possible violation or breach of, default under, or intention to terminate by any party to cancel or modify any Material Contract.
(d) The Company . Neither Seller has no Liability any liability for the deferred purchase price renegotiation of propertygovernment Contracts. True, goods or services, whether connected or not correct and complete copies of all Material Contracts have been provided to Acquiror prior to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreementAgreement Date.
Appears in 1 contract
Material Contracts. (a) Section 4.10(a) 4.12 of the Company Disclosure Schedule sets forth a true, complete and correct list of each all of the following Contracts to which the Company or any of the Subsidiaries is a party or by which it is bound, in each case, as of the Company is bound and which have not been entirely fulfilled or performed date of this Agreement (such Contracts, collectively, the “Material Contracts”):
(i) all Contracts that contain restrictions with respect to payment any current officer or manager of dividends the Company or any other distribution in respect of the Membership Units or Subsidiaries (other Equity of the Companythan Company Benefit Plans);
(ii) Contracts providing for any Contract that by its terms requires change in control, retention, severance payments or benefits, advance notice of termination, accelerated vesting or any other compensation or benefit to or for the payment by or on behalf benefit of any employee of the Company Company, in excess any case, that will be triggered or enhanced as a result of $100,000 per annum or the delivery by consummation of the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annumTransactions;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) with any labor union or advance to (other than travel and entertainment advances to the employees association representing any employee of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to of the making of any such loan, advance or investment in excess of $25,000Subsidiaries;
(iv) Contracts for the sale of any Contract that (i) requires of the assets of the Company to purchase or any product or service the Subsidiaries within the last three (3) years, in each case, for consideration in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service100,000;
(v) Contracts relating to any Contract that relates to an pending acquisition or divestiture disposition by the Company or any of the Subsidiaries of any operating business or the share capital or other equity securities or real properties or other material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Companyof any Person;
(vi) any Contract under which joint venture, partnership, or other similar agreements with a third party involving an investment by the Company has or any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted EncumbranceSubsidiaries;
(vii) all Contracts under which containing covenants (A) restricting or limiting in any Person (other than material respect the Company) has directly or indirectly guaranteed Indebtedness ability of the Company or any of the Subsidiaries to compete in excess any business with any Person or in any geographic area (B) requiring the Company or any Subsidiaries to purchase or otherwise obtain any products or services exclusively from a single third party or (C) requiring a party to act as an exclusive agent for the Company or any Subsidiary in connection with the marketing, distribution or sale of $50,000any product of the Company or any Subsidiary;
(viii) each Contract containing a “most favored nation” or similar provision in favor of any bonds or Contracts counterparty of Guarantee in which any of the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Personthe Subsidiaries;
(ix) all Contracts involving each Contract which contains a prohibition on the Company or any joint ventureof the Subsidiaries relating to the solicitation or hiring of any Person, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangementincluding the employees and contractors of any Person;
(x) all Contracts involving any resolution relating to the incurrence of Debt of the type described in clause (i) or settlement (ii) of the definition thereof, or the making of any actual or threatened Action under which loans by the Company has or any obligation or Liability of the Subsidiaries, in each case, involving amounts in excess of $500,000 (other than any such loans that will continue after the Closing Dateare also Lessor Real Estate Leases (which are covered by clause (xix) below));
(xi) each Contract that relates to any Contract limiting settlement of litigation with, or restraining an order of, a Governmental Body pursuant to which there are material outstanding obligations of or owing to the Company or any successor thereto from engaging or competing in any manner, in any location or in any businessSubsidiary;
(xii) all Affiliate Contractseach Contract with a Material Supplier;
(xiii) any Company IP Agreements as well as Contract with any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licenseeGovernmental Body;
(xiv) each Related Party Agreement, except for any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the CompanyCompany Benefit Plan;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that pursuant to which any of the Company indemnify or any Person in an amount Subsidiary grants to or receives from a third party a license or similar use right under any Intellectual Property rights that would be are material to the Companybusiness of the Company and its Subsidiaries, excluding (A) click-wrap and shrink-wrap licenses and other than non-exclusive licenses for commercially available off-the-shelf software, (B) non-exclusive licenses granted by the Company or any such agreement Subsidiary in the Ordinary Course of Business and (C) non-disclosure agreements, invention assignments and employee- or contractor-related agreements entered into in the Ordinary Course of Business;
(xvi) each Contract providing for indemnification of any director, officer or employee of the Company or any Subsidiary (other than the Governing Documents of the Company and any Subsidiary);
(xvii) Contracts which involve any Contracts with any Governmental Authority to which the Company is a partycapital expenditure, in each case, of more than $100,000;
(xviii) any Contracts that limit, in any material 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 timeeach Real Property Lease;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ noticeLessor Real Estate Leases; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of Trademark Acquisition Agreement and the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)Domain Name Assignment Agreements.
(b) The Each Material Contract is a legal, valid, binding and enforceable obligation of the Company is in material compliance with the terms and provisions of each Material Contract. The Companyor a Subsidiary, and as applicable, and, to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser counterparty thereto, and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect, except for such failures to be legal, valid, binding, enforceable or in full force and effect that would not reasonably be expected to be material to the Company or the Subsidiaries, taken as a whole. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material termsCompany and the Subsidiaries has fulfilled and performed its respective obligations under each of the Material Contracts, as applicable)and neither the Company nor any of the Subsidiaries, between nor to the Knowledge of the Company, on one hand, and the any other parties party thereto, on is in, or alleged in writing (or, to the other handCompany’s Knowledge, orally) to be in, breach of, or in default under (including, with respect to transactions under securitization, subject to repurchase transactions), nor is there alleged to be any basis for termination of any such Material Contract, and, to the subject matter thereof. No Knowledge of the Company, no event or circumstance has occurred that, that with notice or lapse of time or both, both would constitute an event of such a breach or default under any Material Contract thereunder or result in a would permit or cause the termination or modification thereof or would cause or permit the acceleration or other changes creation of any right or obligation thereunder that would have, or reasonably be expected to be material to the loss operations of the Company or any benefit thereunderof the Subsidiaries taken as a whole, or, to the Knowledge of the Company, any other party thereto. The Company has no reason made available true, correct and complete copies of the Material Contracts to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material ContractParent.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Material Contracts. (a) Section 4.10(a) of Schedule 3.15 to the Company Disclosure Schedule Letter sets forth a true, complete and correct list of all Contracts of each of the following Contracts types to which the Company is a party or by and under which the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, has any express obligations to any Person continuing as of the “Material Contracts”):date of this Agreement:
(i) all Contracts that contain restrictions with respect any loan or security agreement relating to payment the borrowing or lending of dividends or any other distribution money by the Company in respect excess of the Membership Units or other Equity of the Companyfifty thousand Dollars ($50,000);
(ii) any Contract that by its terms requires the payment by or on behalf of agreement pursuant to which the Company is expressly committed to sell any of its assets or properties (other than inventory) to a Third Party for a sale price in excess of fifty thousand Dollars ($100,000 per annum 50,000) (excluding value added tax, sales tax or the delivery by any other similar taxes) in any one case or pursuant to which the Company has granted to a Third Party any option or preferential right to purchase any of goods its assets or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annumproperties (other than inventory);
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance any guarantee pursuant to (other than travel and entertainment advances to the employees of which the Company extended in has expressly guaranteed the Ordinary Course obligations of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000a Third Party;
(iv) any Contract that (i) requires agreement pursuant to which the Company has expressly agreed not to purchase engage in or not to compete with any product or service Third Party in excess any line of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that business which is material to the Company;
(v) any agreement with the Seller or any of its Affiliates, irrespective of the content or value of such agreement;
(vi) any Contract under all areas of mutual interests agreements, purchase or sale agreements (other than with respect to production of Hydrocarbons in the Ordinary Course), partnership agreements (other than tax partnerships), joint venture and exploration or development program agreements relating to the Licences or by which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted EncumbranceLicences are bound;
(vii) all Contracts under which any Person (Hydrocarbons production sales or purchase, transportation, marketing, supply, exchange and processing agreements relating to the Licences other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability such agreements that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material 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;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are terminable on upon not cancellable without material penalty or without more than ninety (90) days’ noticenotice without material penalty by the Company;
(viii) any contracts or agreements that could reasonably be expected to require capital expenditures by the Company in excess of one hundred thousand Dollars ($100,000) in any calendar year;
(ix) other than contracts governing the sale of Hydrocarbons, any contracts or agreements related to the Licences under which the Company has received in excess of one hundred thousand Dollars ($100,000) of revenues net of direct expenses in any calendar year;
(x) any contracts or agreements providing for a call upon, option to purchase or similar right under any agreements with respect to the Hydrocarbons from the Licences;
(xi) any contract or agreement with any labor union or employee association that relates to the Company’s employees (or any of them);
(xii) other than (x) this Agreement, (y) contracts or agreements governing the sale of Hydrocarbons or (z) the disposition in the Ordinary Course of equipment no longer suitable for Hydrocarbons field operation, any contract or agreement for, or that contemplates, the sale, exchange or transfer of any of the Company’s Participating Interest;
(xiii) any unit agreement and any operating agreement applicable to any Licence; and
(xxxiv) any Contract other agreement material to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate Business of the CompanyCompany as presently conducted, for an amount made other than in the Ordinary Course of Business and pursuant to which the Company is expressly committed to make future payments in excess of fifty thousand Dollars ($100,00050,000) (excluding value added tax, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) sales tax any other Contract that similar taxes) during any calendar year and which is material to the operation of the business of not cancellable by the Company without material penalty upon one year’s notice or less, (the foregoing Contracts being referred to collectively as the “Material Contracts” and not otherwise disclosed pursuant to this Section 4.10(aindividually as a “Material Contract”).
(b) The Except as disclosed on Schedule 3.15(b) to the Disclosure Letter, except as would not have a Material Adverse Effect:
(i) the Company is in material compliance with the terms and provisions of each has not violated or breached, or committed any default under such Material Contract. The CompanyContracts and, and to the Knowledge of the CompanySeller, no other party to such Material Contract has violated or breached, or committed any default under a Material Contract;
(ii) neither entering into, nor compliance with, nor completion of this Agreement by the other Company will result in a material breach of or, to the Knowledge of the Seller, permit a party thereto to terminate or vary, or result in any material Encumbrance, under any Material Contract;
(iii) the Company has not received or given written notice as of the date of this Agreement that the Company is in material default under any Material Contract, which default remains unremedied as of the date hereof;
(iv) each of the Material Contracts is in full force and effect; and
(v) the Company has not received or given written notice as of the date of this Agreement that a party to any Material Contract is not in breach intends to exercise any right of cancellation, termination, acceleration or default modification under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any such Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Prior to the date hereof, the Seller has furnished to the Purchaser a true and complete copy of each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties all amendments thereto, on the other hand, with respect to the subject matter thereof. 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. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contract.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Material Contracts. (a) Section 4.10(a) of the Company Disclosure Schedule sets forth 2.14 contains a true, complete and correct accurate list of each all Contracts of the following Contracts categories to which any of the Company Terminals Companies is a party or by which the Company any of them is bound and which have not been entirely fulfilled or performed as of the date of this Agreement (such Contracts, collectively, the “"Terminals Material Contracts”"):
(i) all Contracts that contain restrictions (1) continuing contracts for the purchase of materials, supplies, or equipment (other than purchase contracts and orders for inventory in the ordinary course of business consistent with respect to payment of dividends or any other distribution in respect of the Membership Units past practice), (2) management, service, consulting, or other Equity similar types of contracts or (3) advertising agreements or arrangements, in any such case that have an aggregate committed future liability to any Person in excess of $1,000,000 and that is not terminable by the Companyapplicable Terminals Company by notice of not more than 60 days for a cost of less than $1,000,000;
(ii) material Terminals Intellectual Property licenses (including any Contract that by its terms requires license or other agreement under which the payment by applicable Terminals Company is licensee or on behalf licensor of the Company in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annumany such Terminals Intellectual Property);
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors agreements under which any of the Terminals Companies has directly or indirectly guaranteed indebtedness of any Person in the Ordinary Course principal amount individually in excess of Business$1,000,000;
(iv) or advance to (other than travel and entertainment advances to the employees agreements under which any of the Company extended in the Ordinary Course of Business)Terminals Companies is obligated to advance, loan, extend credit, or make a capital contribution to, or other investment in, any Person or (other than any agreement relating to of the making of Terminals Companies), in any such loancase that, advance or investment individually, is in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service1,000,000;
(v) any Contract that relates to an acquisition all Contracts, leases or divestiture easements involving annual rental payments or receipts in excess of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company$1,000,000;
(vi) any Contract under which all promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for the Company has any outstanding Indebtedness lending of money, whether as borrower or evidencing an Encumbrance on any property lender, in excess of $1,000,000 and all related security agreements or asset of the Company, other than a Permitted Encumbrancesimilar agreements associated therewith;
(vii) all Contracts under which limit the freedom of any of the Terminals Companies to compete with any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000operate at any location, including, without limitation, any preferential rights granted to third parties to purchase or lease such location;
(viii) any bonds Contract for a pending or Contracts of Guarantee in which the Company acts as a surety completed acquisition or guarantor with respect to any obligation disposition (fixed by merger or contingentotherwise) of another Personall or substantially all of the assets (other than inventory) or capital stock of any Person (including, without limitation, the Terminals Companies) under which any of the Terminals Companies currently has (or in the case of a pending acquisition or disposition may have) any liability;
(ix) all Contracts involving between the Terminals Companies, on one hand, and Seller or any joint ventureAffiliate of Seller (or any current or former officer, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development director or similar arrangementemployee of Seller or any Affiliate of Seller) on the other hand;
(x) all Contracts involving any resolution pertaining to the operation or settlement maintenance of any actual or threatened Action and all facilities of any Terminals Company under which the such Terminals Company has any obligation or Liability that will continue after the Closing Date;a committed aggregate liability of at least $1,000,000; and
(xi) any Contract limiting or restraining to the Company or any successor thereto from engaging or competing in any mannerextent not otherwise listed on Schedule 2.14, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which any of the Company Terminals Companies is a party providing for the license of obligated to indemnify or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify otherwise make whole any Person for any obligation or liability in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material 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;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an liquidated amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)1,000,000.
(b) The Company is in material compliance with True copies of the terms and provisions of each Terminals Material Contract. The CompanyContracts, and to the Knowledge accurate written summaries of the Companyoral Terminals Material Contracts, the other party identified on Schedule 2.14 have been made available to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure SchedulePurchaser.
(c) Each Except as set forth on Schedule 2.14, to Seller's knowledge, no party to a Terminals Material Contract identified in Schedule 2.14 is in default under, or in breach or violation of (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No no event or circumstance has occurred thatwhich, with notice or the 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. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contract.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.,
Appears in 1 contract
Sources: Stock Purchase Agreement (Gatx Corp)
Material Contracts. (a) Section 4.10(a2.8(a) of the Company Disclosure Schedule sets forth contains a true, correct and complete and correct list of each of the following Contracts to which the any Target Company is currently a party or by which the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):
(i) all Contracts that contain restrictions with respect to payment of dividends or any other distribution in respect of the Membership Units or other Equity of the Companyeach Material Customer Contract;
(ii) any each Material Network Contract;
(iii) each Contract that by its terms requires not fully performed providing for the payment by performance of services or on behalf of the Company in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market materials by or to any Target Company which requires consideration to be furnished, or which would reasonably be expected to result in consideration to be furnished, by such Target Company having an aggregate value in excess of $100,000 per annum 1,000,000 during the twelve (12)-month period either ending or provides for commencing on the Company to receive payments in excess date of $100,000 per annum;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000this Agreement;
(iv) each Contract for the sale or other disposition of any Contract that (i) requires of the Company to purchase properties or other assets of any product or service Target Company, other than in the ordinary course of business consistent with past practice, for consideration in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service500,000;
(v) each Contract for the acquisition of any Contract that relates to an acquisition business or divestiture a substantial portion of material the assets that contains covenantsor stock of any business entity (whether by merger, indemnities consolidation, purchase of stock, purchase of assets or by any other contractual obligations that could impose a Liability that is material to manner), in each case involving consideration in excess of $500,000 and which requires performance after the Companydate of this Agreement;
(vi) any each Contract under which the Company has any outstanding Indebtedness which, when taken together with all purchase orders issued thereunder, involves or evidencing an Encumbrance on any property or asset results in a commitment of the Company, other than Target Companies to make a Permitted Encumbrancecapital expenditure or to purchase a capital asset involving at least $500,000 after the date of this Agreement;
(vii) all Contracts (A) each Contract under which any Person Target Company is granted rights by others in Intellectual Property (other than commercial off-the-shelf software that is made available for a total cost of less than $40,000 per item), and (B) each Contract under which any Target Company has granted rights to others in Intellectual Property (other than customer agreements entered into in the Company) has directly or indirectly guaranteed Indebtedness ordinary course of the Company in excess of $50,000business);
(viii) each Contract between any bonds or Contracts of Guarantee in which the Target Company acts as a surety or guarantor with respect to and any obligation (fixed or contingent) of another PersonGovernmental Authority;
(ix) all Contracts involving any joint ventureeach Real Estate Lease and each other Contract (including, partnershipwithout limitation, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development each deed or other similar arrangementdocument or instrument) recording or otherwise evidencing a Target Company’s rights with regard to Company Owned Real Property;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action each Contract under which the any Target Company has holds or operates any obligation personal property of a third party involving an annual commitment or Liability that will continue after the Closing Datepayment of more than $250,000;
(xi) each Contract relating to Indebtedness of any Contract limiting Target Company in a principal amount in excess of $1,000,000 or restraining the Company to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any successor thereto from engaging of any Target Company’s assets or competing in any manner, in any location or in any businessproperties;
(xii) all Affiliate Contractseach Contract (other than any guaranty related to the Credit and Guaranty Agreement which guaranties are being terminated at Closing) providing for the guaranty by any Target Company of any Liability of any Person; or any Contract that includes any requirement that any Target Company provide indemnification to or otherwise support the business or Liabilities of any other Person (other than in the ordinary course of business in connection with provision of services to customers and the procurement of services and equipment from suppliers);
(xiii) each Contract between or among any Company IP Agreements as well as Target Company, on the one hand, and any Contract under which the Company is Seller or any Affiliate of a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property Seller (other than commercially available software and hardwareany Target Company) and any Intellectual Property license agreements under which on the Company is currently a licenseeother hand;
(xiv) each joint venture, partnership or Contract to which any Contract concerning the acquisitionTarget Company is a party involving a sharing of profits, dispositionlosses, occupancy, management costs or operation of liabilities with any Real Property owned, leased or used by the Person other than a Target Company;
(xv) all each collective bargaining agreements entered into by the Companyagreement with any labor union or other employee representative of a group of employees relating to wages, hours or other conditions of employment;
(xvi) each Contract that contains a covenant restricting the ability of any Contract providing that the Target Company indemnify to compete with any Person or to engage in an amount that would any business or activity in any geographic area or pursuant to which any benefit is required to be material to the Company, other than any given or lost as a result of such agreement competing or engaging (but excluding nondisclosure agreements entered into in the Ordinary Course ordinary course and which contain provisions related to the non-solicitation of Businessemployees);
(xvii) each Contract that obligates any Contracts with Target Company to obtain all or a substantial portion of its requirements for any Governmental Authority to which goods or services from, or supply all or a substantial portion of the Company is a partyrequirements for any goods or services of, any other Person;
(xviii) each Contract of any Contracts Target Company that limit, in includes any material 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“most-favored pricing” provision;
(xix) all (i) employment agreements (excluding, for certainty, each Contract with any employees who are employed at will) and (ii) Contracts with independent contractors or consultants director (or the equivalent position with respect to foreign Subsidiaries), officer (or the equivalent position with respect to foreign Subsidiaries), Employee or consultant of any Target Company on a full-time, part-time, consulting or other basis providing annual compensation in excess of $175,000 or, except to the extent required by applicable Law, requiring any Target Company to pay severance or separation payments, change in control payments, or any retention or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; andtransaction bonus;
(xx) each Contract of any Target Company that includes a “take or pay” provision that requires minimum periodic payments or payment commitments of more than $100,000 to vendors or suppliers;
(xxi) any Contract prohibiting the creation or assumption of any Lien upon any of the properties or assets of the Target Companies other than restrictions by reason of customary provisions restricting assignments, subletting or other transfers contained in leases, licenses, joint venture agreements and similar agreements entered into in the ordinary course of business (provided that such restrictions are limited to purchase, lease or otherwise acquire the right to own, use or lease any property or assetsassets secured by such Liens or the property or assets subject to such leases, including such Contracts entered into by an Affiliate of the Companylicenses, for an amount in excess of $100,000joint venture or similar agreements, individually (in as the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option termmay be); and
(xxixxii) each Contract to enter into any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)foregoing.
(b) The Each of the Material Contracts is a legal, valid and binding obligation of the Target Company is party thereto, in material compliance with the terms full force and provisions of each Material Contract. The Companyeffect and enforceable against such Target Company and, and to the Knowledge of the Company, the other party parties thereto, in accordance with its respective terms (but subject to any Material Contract is not in breach or default under any of its termsthe Equitable Exceptions). The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is Except as set forth in Section 4.10(a2.8(b)(i) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description , none of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under Target Companies is currently renegotiating any Material Contract or result paying liquidated damages in a termination thereof or would cause or permit the acceleration or other changes lieu of any right or obligation or the loss of any benefit performance thereunder. The No Target Company is in breach or default under, or since December 31, 2015 has no reason received a written claim of default or breach under, any Material Contract and, except as set forth in Section 2.8(b)(ii) of the Company Disclosure Schedule, to believe any party the Knowledge of the Company, none of the counterparties to any Material Contract will not fulfill its obligations thereunder is in all material respects, and breach of or default thereunder. Except as set forth in Section 2.8(b)(iii) of the Company Disclosure Schedule, since December 31, 2015, no Target Company has not received any written notice of termination termination, modification, acceleration, cancellation or intent to terminate by any party to nonrenewal of any Material Contract.
(dc) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not made available to the acquisition Purchaser a true, correct and complete copy of any business (earn-out each written Material Contract, including all amendments, waivers, supplements or other similar type modifications thereto. None of payments) the Material Contracts, and no material amendment, waiver, supplement or noncompetition agreementmodification thereto, is an oral Contract.
Appears in 1 contract
Sources: Share Purchase Agreement (GTT Communications, Inc.)
Material Contracts. (a) Section 4.10(a3.20(a) of the Company Disclosure Schedule Letter sets forth a true, correct and complete and correct list of each list, as of the following Contracts date hereof, and the Company has made available to Parent and Merger Sub (or Parent’s outside counsel) true, correct and complete (subject to any necessary redactions) copies of, each Contract (other than Plans), which is in effect as of the date hereof (or pursuant to which the Company has any continuing material obligations thereunder) and under which the Company is a party or by which the Company or any of its properties or assets is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):that:
(i) all Contracts that contain restrictions with respect would be required to payment be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of dividends Regulation S-K under the Securities Act or any other distribution in respect of disclosed by the Membership Units or other Equity of the CompanyCompany on a Current Report on Form 8-K;
(ii) any Contract that involves, by its terms requires terms, aggregate payments by the Company or aggregate payments payable to the Company under such Contract of more than $5,000,000 in the most recent fiscal year (including by means of royalty payments), other than Contracts made in the ordinary course of business consistent with past practice;
(iii) contains covenants that limit in any material respect the freedom of the Company to compete or engage in any line of business or in any geographic area;
(iv) provides for or governs the formation, creation, operation, management or control of any partnership or joint venture that is material to the business of the Company, taken as a whole;
(v) provides for (A) the use or license by the Company of any material Intellectual Property Rights owned by a third party, other than Incidental Contracts, or (B) the joint development of products or technology with a third party;
(vi) provides for the license by the Company of any of its material Intellectual Property Rights to any third party, other than Incidental Contracts;
(vii) involves the acquisition or disposition, directly or indirectly (by merger or otherwise), of a business or capital stock or other equity interest of another Person that has continuing contingent consideration payment obligations by or on behalf of the Company in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors 10,000,000 in the Ordinary Course aggregate in respect of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000agreement;
(viii) any bonds constitutes a material manufacturing, supply, distribution or Contracts of Guarantee in which marketing agreement that provides for minimum payment obligations by the Company acts as a surety or guarantor with respect to of at least $5,000,000 in any obligation prospective twelve (fixed or contingent12) of another Personmonth period;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing relates to indebtedness for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in borrowed money having an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material 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;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an outstanding principal amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term)10,000,000; and
(xxix) involves the settlement of any other pending or threatened claim, action or proceeding which requires payment obligations after the date hereof, in excess of $5,000,000. Each Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant type described in clauses (i) through (x) above, other than a Plan, is referred to this Section 4.10(a)herein as a “Material Contract.”
(b) The Except as would not, individually or in the aggregate, reasonably be expected to have a Company is in material compliance with the terms and provisions of Material Adverse Effect, (i) each Material Contract. The CompanyContract is valid and binding on the Company and, and to the Knowledge of the Company, the each other party to any Material Contract thereto, and is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth , subject to the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one handEnforceability Exceptions, and (ii) the other parties theretoCompany has complied with all obligations required to be performed or complied with by it under each Material Contract, on the other hand, with respect to the subject matter thereof. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of (iii) there is no default under any Material Contract or result in a termination thereof or would cause or permit by the acceleration or Company, or, to the Knowledge of the Company, by any other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respectsthereto, and (iv) to the Company’s Knowledge, the Company has not received any written notice of termination or intent to terminate by from any third party to any Material ContractContract that such party intends to terminate such Material Contract for any default or alleged default thereunder.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Material Contracts. (a) Section 4.10(a) of Except as set forth on Schedule ------------------ -------- 3.10 attached hereto, neither the Company Disclosure Schedule sets forth a true, complete and correct list of each of the following Contracts to which the Company nor any subsidiary is a party to or by which the Company is ---- bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):by:
(i) all Contracts that contain any agreement, contract or commitment relating to the employment of any Person by the Company or any subsidiary pursuant to which such Person is or may become entitled to receive aggregate compensation during the current fiscal year in excess of $75,000, or any bonus, deferred compensation, pension, profit sharing, stock option, employee stock purchase, retirement or other employee benefit plan;
(ii) any agreement, indenture or other instrument which contains restrictions with respect to payment of dividends or any other distribution in respect of the Membership Units or other Equity of the Company;
(ii) any Contract that by its terms requires the payment by or on behalf of the Company in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annumcapital stock;
(iii) all Contracts involving a any agreement, contract or commitment relating to capital expenditures in excess of $50,000 individually or $500,000 in the aggregate;
(iv) any loan (other than (x) accounts receivable owing from trade debtors in the Ordinary Course ordinary course of Businessbusiness and (y) or advance to (other than travel loans and entertainment advances to the employees of the Company extended not exceeding $100,000 in the Ordinary Course of Business)aggregate) or advance to, or investment in, any Person or any agreement agreement, contract or commitment relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or serviceinvestment;
(v) any Contract that relates to agreement evidencing borrowings by the Company or any subsidiary, including, but not limited to, loan and credit agreements, promissory notes and other instruments of indebtedness, other than any such agreements which do not involve an acquisition obligation of the Company and its subsidiaries in excess of $100,000, individually, or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to $500,000 in the Companyaggregate;
(vi) any Contract under which the Company has guarantee or other contingent liability in respect of any outstanding Indebtedness indebtedness or evidencing an Encumbrance on any property or asset obligation of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Companyendorsement of negotiable instruments for collection in the ordinary course of business);
(vii) has directly any management service, consulting or indirectly guaranteed Indebtedness of any other similar type contract or agreement, other than any such contracts or agreements which do not involve annual payments by the Company or its subsidiaries in excess of $50,000100,000 individually or $500,000 in the aggregate;
(viii) any bonds agreement, contract or Contracts commitment limiting the ability of Guarantee in which the Company acts as a surety or guarantor any subsidiary to engage in any line of business or to compete with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketingcontract or commitment with any officer or director of the Company, co-promotion, joint development with Parent or similar arrangementwith any Affiliate of the Company (other than a subsidiary of the Company);
(x) all Contracts any agreement, contract or commitment not in the ordinary course of business and involving any resolution or settlement total annual payments in excess of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date$100,000;
(xi) any Contract limiting written or, to the knowledge of the Company, oral warranty, guaranty or restraining other similar undertaking with respect to any contractual performance extended by the Company or any successor thereto from engaging subsidiary or competing in any mannerproduct sold, in resold or the sale of which was brokered by the Company or any location or in any businesssubsidiary;
(xii) all Affiliate Contractsany supply contract, requirements contract, output contract or distribution contract involving annual payments of $100,000;
(xiii) any Company IP Agreements as well as agreement, contract or commitment which involves annual payments of $100,000 or more and is not cancelable without penalty within 30 days;
(xiv) any Contract under other agreement, contract or commitment not described in clauses (i) through (xiii) of this Section 3.10(a) which would have a material adverse effect on the Condition of the Company and its subsidiaries, taken as a whole; or
(xv) any amendment, modification or supplement in respect of, or any written or, to the knowledge of the Company, oral agreement to amend, modify or supplement, any of the foregoing.
(b) Except as set forth on Schedule 3.10, each contract or agreement set forth on Schedule 3.10 (or required to be set forth on Schedule 3.10) is a party providing for the license in ------------- ------------- full force and effect and there exists no material default or event of default or settlement with respect to any Intellectual Property event, occurrence, condition or act (including, without limitation, the Company’s Intellectual Property (consummation of the Spin-Off and the purchase of the Shares hereunder) which, with the giving of notice, the lapse of time or the happening of any other than commercially available software and hardware) and any Intellectual Property license agreements under which event or condition, would become a material default or event of default thereunder except for such defaults or events of default as would not have, individually or in the aggregate, a material adverse effect on the Condition of the Company is currently and its subsidiaries taken as a licensee;
whole. Except as set forth on Schedule 3.10, the ------------- Company has no plan or expectation to amend, modify or supplement any agreement, contract or commitment set forth on Schedule 3.10 (xivor required to be set forth ------------- on Schedule 3.10) in any Contract concerning way that would materially affect the acquisitionCondition of the ------------- Company. Except as set forth on Schedule 3.10, disposition, occupancy, management neither the Company nor any ------------- subsidiary has violated any of the terms or operation conditions of any Real Property owned, leased contract or used by the Company;
agreement set forth on Schedule 3.10 (xvor required to be set forth on Schedule ------------- -------- 3.10) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, and, to 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;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate knowledge of the Company, for an amount in excess of $100,000no other ---- party thereto has materially violated, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a).
(b) The Company is in material compliance with the terms and provisions of each Material Contract. The Companyviolation of, and any covenant to the Knowledge of the Company, the other be performed by such party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. 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. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contract.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition such contract agreement.
Appears in 1 contract
Sources: Stock Subscription Agreement (Specialty Products & Insulation Co)
Material Contracts. (a) Section 4.10(a) of the Company Disclosure Schedule sets forth a true, complete and correct list of each of 4.15 lists the following Contracts to which the Company or any Subsidiary is a party or subject or by which the Company it is bound and which have not been entirely fulfilled or performed (such Contracts, collectivelywith the Contracts required to be listed on Schedule 4.15, the “"Material Contracts”"):
(i) all Contracts that contain restrictions with respect to payment of dividends each employment, agency, collective bargaining or any other distribution in respect of the Membership Units or other Equity of the Companyconsulting Contract;
(ii) each Contract (A) with any Contract that by its terms requires the payment by Insider or on behalf of (B) between or among any Insiders relating in any way to the Company or any Subsidiary;
(iii) each distributor, reseller, OEM, dealer, manufacturer's representative, broker, sales agency, advertising agency, finder's, manufacturing or assembly Contract;
(iv) each franchise agreement;
(v) each Contract or group of related Contracts with the same party for the purchase of products or services with a undelivered balance in excess of $100,000 per annum 15,000;
(vi) each Contract or group of related Contracts with the delivery by same party for the Company sale of goods products or services with a fair market value an undelivered balance in excess of $100,000 per annum 15,000;
(vii) each lease of real or provides for the Company to receive personal property with aggregate annual payments in excess of $100,000 per annum;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,00015,000;
(viii) each Contract for the sale of any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Personcapital assets;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangementeach Contract for capital expenditures in excess of $15,000;
(x) all Contracts involving each Contract relating to the borrowing of money or to mortgaging, pledging or otherwise placing an Encumbrance on any resolution or settlement of any actual or threatened Action under which the assets of the Company has or any obligation or Liability that will continue after the Closing DateSubsidiary;
(xi) any Contract limiting each written warranty, guaranty or restraining other similar undertaking with respect to contractual performance extended by the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (Subsidiary other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xii) each Contract relating to any surety bond or letter of credit required to be maintained by the Company or any Subsidiary;
(xiii) each Contract that contains or provides for an express undertaking by the Company or any Subsidiary to be responsible for consequential damages;
(xiv) each Contract concerning a partnership or joint venture;
(xv) each Contract providing for the development of any products, Software or Intellectual Property Rights or the delivery of any services by, for or with any third party;
(xvi) each Contract containing exclusivity, noncompetition or nonsolicitation provisions or that would otherwise prohibit the Company or any Subsidiary from freely engaging in business anywhere in the world or prohibiting the solicitation of the employees or contractors of any other entity;
(xvii) any Contracts with any Governmental Authority each Contract pertaining to which the Company is a partyconfidentiality or non-disclosure;
(xviii) any Contracts that limit, in any material 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 timeeach Capital Lease;
(xix) all (i) employment agreements (excluding, for certainty, each Contract terminable by any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which other party upon a change of control of the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; andany Subsidiary or upon the failure of the Company or any Subsidiary to satisfy financial or performance criteria specified in such Contract;
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate each power of the Company, for an amount attorney that is currently in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term)effect; and
(xxi) any each other Contract of the Company or any Subsidiary not entered into in the Ordinary Course of Business or that is material to the operation business, financial condition, results of the business operations or prospects of the Company and not otherwise disclosed pursuant to this Section 4.10(a)the Subsidiaries taken as a whole.
(b) The Each Material Contract is valid and binding, currently in force and enforceable in accordance with its terms, subject to the Remedies Exception. Each of the Company is and the Subsidiaries has performed all obligations required to be performed by it in material compliance connection with the terms and provisions of each Material Contract. The CompanyNeither the Company nor any Subsidiary has received any notice of any claim of default by it under or termination of any Material Contract. Neither the Company nor any Subsidiary has any present expectation or intention of not fully performing any obligation pursuant to any Material Contract, and to there is no breach, anticipated breach or default by the Knowledge of the Company, the Company or a Subsidiary or any other party to any Material Contract Contract. There is not in breach no renegotiation of, attempt to renegotiate or default under outstanding right to renegotiate any of its terms. The Company has not received notice material terms of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract and no Person has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) made written demand for such renegotiation. Each of the Company Disclosure Schedule.
(c) Each and the Subsidiaries can perform each Material Contract is (i) valid for the sale of products or services on time, at a profit and binding on without unusual expenditures of time and money. Neither the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each nor any Subsidiary has any obligation to refund payments received for work not yet performed under a Material Contract (or description) sets forth where the entire agreement and understanding (or complete description percentage of work completed is less than the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect percentage of revenues received to the subject matter thereof. 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. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contractdate.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Material Contracts. (a) Section 4.10(aExcept as otherwise set forth on Section 3.16(a) of the Company Disclosure Schedule sets forth a trueSchedules, complete and correct list of each as of the following Contracts to which date hereof, none of the Company Acquired Companies is a party to or bound by which the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):any:
(i) all Contracts that contain restrictions with respect to payment of dividends or any other distribution in respect of the Membership Units or other Equity of the Company;
(ii) any Contract that by its terms requires involving the payment by or on behalf any Acquired Company of the Company aggregate consideration in excess of $100,000 3,000,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel year and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any mannerwhich, in each case, cannot be cancelled by any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Acquired Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material 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;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and;
(xxii) Contract for the sale of products or services to any Contract customer pursuant to purchase, lease or otherwise acquire which the right Acquired Companies are entitled to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount receive in excess of $100,0003,000,000 per year;
(iii) any agency, individually (dealer, distributor, sales representative, tolling, manufacturing, vendor, marketing or other similar Contract that involves payment by any Acquired Company of consideration in excess of $2,000,000 during any consecutive twelve-month period during the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the leaseapplicable Contract;
(iv) Contract granting any Person an option or a right of first refusal or first offer or similar preferential right to purchase or acquire any Company Securities or any asset of any Acquired Company;
(v) Contract (A) relating to or evidencing any material Debt of any Acquired Company or (B) providing for the creation of any charge, not security interest, encumbrance or Lien upon any of the material assets of the Company or its Subsidiaries;
(vi) Contract relating to any acquisition or disposition made by the Company or its Subsidiaries since January 1, 2017 of (A) any line of business or the capital stock of any other Person (including any option term); and
Acquired Company and whether by way of merger, sale of stock, sale of assets, or otherwise) or (xxiB) any other assets of any other Person for consideration in excess of $10,000,000;
(vii) Contracts constituting Real Property Leases providing for annual base rent in excess of $1,000,000;
(viii) non-competition agreement or any other agreement or obligation which purports to limit in any material respect the manner in which, or the localities in which, the business of any Acquired Company or, following the Closing, Buyer, may be conducted;
(ix) Contract constituting a Collective Bargaining Agreement;
(x) voting or other agreement governing how any shares of Common Stock shall be voted, or stockholders’ agreement, registration rights agreement, investors’ rights agreement or similar agreement;
(xi) Contract with respect to a material joint venture or material partnership;
(xii) Contract imposing any exclusivity requirements, most favored nations or most favored customer status, rights of first or last offer, negotiation or refusal obligation or similar restriction on any Acquired Companies that, in each case, restricts or impacts the businesses of any Acquired Company in any material respect;
(xiii) Contract prohibiting the payment of dividends or distributions in respect of the capital stock of any of the Acquired Companies or prohibits the pledging of the capital stock of any of the Acquired Companies;
(xiv) Contract required to be disclosed under Section 3.17 of the Disclosure Schedules;
(xv) Contracts that relate to any outstanding commitment for capital expenditures by the Company or its Subsidiaries in excess of $3,000,000;
(xvi) material Contract providing for a license of or other right to use Intellectual Property by or to the Acquired Companies, other than Off-the-Shelf Software Licenses and non-exclusive licenses granted in the ordinary course of business;
(xvii) Contract with any Governmental Authority;
(xviii) Contract that is material a settlement, conciliation or similar agreement; or
(xix) Contract, commitment or arrangement to the operation enter into any of the business foregoing. Collectively, the Contracts listed or required to be listed on Section 3.16(a) of the Company and not otherwise disclosed pursuant Disclosure Schedules are referred to this Section 4.10(a)herein as the “Material Contracts.”
(b) The Company is in material compliance with the terms and provisions of each Material Contract. The Company, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract (x) is (i) valid and binding on the Company or one of its Subsidiaries and, to the Company’s Knowledge, each other party thereto to such Material Contract and (y) to the Company’s Knowledge, is in full force and effect and enforceable in accordance with its respective terms and conditions, except as the enforceability thereof may be limited by (iiA) applicable bankruptcy, insolvency, moratorium, reorganization or similar laws in full force and effecteffect which affect the enforcement of creditors rights generally or (B) general principles of equity, whether considered in a proceeding at law or in equity. Each The applicable Acquired Company has performed all obligations required to be performed by it to date under each Material Contract (Contract, except where such noncompliance would not reasonably be expected to have, individually or description) sets forth in the entire agreement and understanding (or complete description aggregate, a material adverse impact on the business of the Acquired Companies, taken as a whole. The Acquired Companies have not breached or defaulted under or terminated, nor, has any Acquired Company given or received written notice of, any material termsbreach, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No event default or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default termination under any Material Contract and, to the Company’s Knowledge, there is no material breach, default or result in a termination thereof or would cause or permit the acceleration or by any other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any a Material Contract, except where such violations, defaults or terminations would not reasonably be expected to have, individually or in the aggregate, a material adverse impact on the business of the Acquired Companies, taken as a whole.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Sources: Merger Agreement (Hexion Inc.)
Material Contracts. (a) Section 4.10(a) of the Company Disclosure Except as disclosed on Schedule sets forth a true3.2.14, complete and correct list of each of the following Contracts to which the no Group Company is currently bound by or a party or by which the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):to:
(i) all Contracts that contain restrictions with respect to payment any Contract (or group of dividends related Contracts) for the purchase, sale, construction, repair or any other distribution in respect maintenance of the Membership Units inventory, raw materials, commodities, supplies, goods, products, equipment or other Equity property, or for the furnishing or receipt of services, in each case, the Companyperformance of which will extend over a period of more than one year] or which provides for (or would be reasonably expected to involve) annual payments to or by a Group Company in excess of RMB 4,000,000 or aggregate payments to or by a Group Company in excess of RMB 9,000,000;
(ii) any Contract that relating to the acquisition or disposition by its terms requires the payment by or on behalf of the Company in excess of $100,000 per annum or the delivery by the any Group Company of goods (A) any business thereof (whether by merger, consolidation or services with a fair market value other business combination, sale of securities, sale of assets or otherwise) or (B) any material Assets (other than sales of inventory or obsolete equipment in excess the ordinary course of $100,000 per annum business) other than Contracts in which the applicable acquisition or provides for the Company to receive payments in excess of $100,000 per annumdisposition has been consummated and there are no material obligations ongoing;
(iii) all Contracts involving any Contract under which a loan (Group Company has permitted any Asset to become Encumbered other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000Permitted Encumbrances;
(iv) any Contract that concerning or consisting of a partnership, limited liability company, joint venture or similar agreement (i) requires the Company in each case, other than with respect to purchase any product or service in excess wholly-owned Subsidiaries of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or serviceGNC);
(v) any Contract that relates to an acquisition (A) under which a Group Company has created, incurred, assumed or divestiture guaranteed any Debt in excess of material assets that contains covenants, indemnities RMB 4,000,000 or (B) under which any other contractual obligations that could impose Person has guaranteed any Debt of a Liability that is material to the Group Company;
(vi) any Contract under which containing covenants (A) restricting in any material respect any business activity (including the Company has solicitation, hiring or engagement of any outstanding Indebtedness Person or evidencing an Encumbrance on the solicitation of any property or asset customer) of the any Group Company, other than a Permitted Encumbranceor (B) limiting in any material respect the freedom of any Group Company to compete with any Person;
(vii) all Contracts under which any Person (other than the Company) has directly outstanding general or indirectly guaranteed Indebtedness special powers of the attorney executed by or on behalf of a Group Company in excess of $50,000or with respect to any Assets;
(viii) any bonds Contract under which a Group Company is, or Contracts may become, obligated to incur any severance pay or Compensation obligations that would become payable by reason of Guarantee in which the Company acts as a surety this Agreement, any other Transaction Document or guarantor with respect to any obligation (fixed transaction contemplated hereunder or contingent) of another Personthereunder;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;Contract relating to the lease of the Leased Real Property; and
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability Related Party Contract that will continue in effect after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the CompanyClosing, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material 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;
(xix) all (i) employment agreements the Transaction Documents (excluding, for certainty, any employees who are employed at willii) the transactions contemplated by the Business Plan (as defined in the Shareholders Agreement) and (iiiii) Contracts those relating to ordinary course of business transactions at arm’s length with independent contractors aggregate payments below US$ 500,000. The Warrantors have delivered or consultants (or similar arrangements) made available to which the Company is a party ▇▇▇▇▇ Parent accurate and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any complete copies of each written Contract to purchaselisted on Schedule 3.2.14, lease in each case, as amended or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount modified and in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)effect.
(b) The Company is Except as would not reasonably be expected to be, individually or in the aggregate, material compliance with to the terms and provisions of Group Companies, taken as a whole, each Contract required to be disclosed on Schedule 3.2.14 (each a “Material Contract. The Company”) (i) is valid and binding on the applicable Group Companies and, and to the Knowledge of the CompanyWarrantors, on the other parties thereto; (ii) is in full force and effect and, to the Knowledge of the Warrantors, enforceable. The applicable Group Companies are in material compliance with and have performed all obligations required to be performed by them to date under each Material Contract. As of the date hereof, no Group Company has received notice of any material violation or default (or any condition which with the passage of time or the giving of notice or both would cause such a material violation of or a default) by any party under any Material Contract nor, to the Knowledge of the Warrantors, has such notice been threatened. To the Knowledge of the Warrantors, no other party to any Material Contract is not in material breach or violation of, or default under under, or has repudiated any of its terms. The Company has not received notice of any breachmaterial provision of, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. 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. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contract.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Sources: Master Reorganization and Subscription Agreement (GNC Holdings, Inc.)
Material Contracts. (a) Section 4.10(a) 2.11 of the Company Seller Disclosure Schedule sets forth a true, complete and correct list of each of the following Contracts to which (x) the Company is a party or by which the Company it is bound and which have not been entirely fulfilled or performed (such Contracts, collectivelyy) to the extent relating to the business of the Company, the Seller or one of its Affiliates (other than the Company) is a party (each, a “Material ContractsContract”) (other than Benefit Plans):
(i) all Contracts each Contract that contain restrictions with respect contains a put, call, right of first refusal, right of first offer or similar right pursuant to payment of dividends which the Company could be required to, directly or indirectly, purchase or sell, as applicable, any other distribution in respect of the Membership Units securities, capital stock or other Equity interests, assets (including cryptocurrency) or business of the Companyany Person;
(ii) any each Contract containing covenants that by its terms requires restrict the payment by or on behalf right of the Company to: (A) engage in excess any business activity, (B) engage in any line of $100,000 per annum business or compete with any Person, or (C) conduct any activity in any geographic area;
(iii) each Contract granting any third party the delivery by exclusive right to develop, market, sell or distribute the Company’s products or services;
(iv) all Contracts between or among the Company on the one hand and the Seller or any of the Debtors or any of the current employees on the other hand;
(v) all Contracts with a customer or vendor of the Company involving payments or expected payments to the Company of goods more than $100,000 in either of the fiscal years ended December 31, 2022, or services with ending December 31, 2023;
(vi) any Contract relating to the disposition or acquisition of any business, equity interest, entity or, except for inventory and other tangible property acquired in the ordinary course of business, assets having a fair market value in excess of $100,000 per annum 250,000 or provides for the Company to receive payments in excess of $100,000 per annum;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness remaining material obligation with respect to an “earn-out,” contingent purchase price or evidencing an Encumbrance similar contingent payment obligation;
(vii) each Contract creating indebtedness for borrowed money in excess of $200,000;
(viii) each Contract creating or granting a material Lien on any property or asset assets of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than purchase money security interests in connection with the Company) has directly or indirectly guaranteed Indebtedness acquisition of equipment in the Company in excess ordinary course of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor business consistent with respect to any obligation (fixed or contingent) of another Personpast practice;
(ix) all Contracts involving each (A) Contract pursuant to which the Company or the Seller or any joint ventureof the other Debtors is granted any license, partnershipcovenant not to sue or other rights to use any Intellectual Property or data used or held for use in, strategic allianceor otherwise necessary for, shareholders’ agreementthe business of the Company, coother than non-marketingexclusive licenses to off-the-shelf, cocommercially available, non-promotioncustomized Software in object code form, joint development and (B) Outbound Intellectual Property License, other than non-exclusive licenses granted in the ordinary course of business consistent with past practice to customers or similar arrangementend-users for their use of the Company’s products and services;
(x) all Contracts each Contract involving any resolution or settlement of any actual or threatened Action under which that is material to the Company has business of the Company, or that imposes material injunctive or other non-monetary obligations on the Company, including any obligation restrictions on the Company’s use, licensing or Liability that will continue after the Closing Dateregistration of any material Intellectual Property, including co-existence agreements;
(xi) each Contract pursuant to which any Contract limiting material technology or restraining material Intellectual Property has been developed for, with or on behalf of the Company or any successor thereto from engaging or competing in any mannerCompany, in any location or in any businessother than agreements with employees of the Company;
(xii) all Affiliate Contracts;each material service Contract related to the operation of the DCM, the DCO and the SEF including (A) agreements with vendors for information technology services and (B) agreements with respect to custody of customer or member property; and
(xiii) any Company IP Agreements agreements with the NFA, in its capacity as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property includingregulatory service provider, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, other Self-Regulatory Organization in any material respect, the ability of the Company to compete in any line of business or connection with any Person or in any geographic area or during any period of time;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company DCM, DCO and not otherwise disclosed pursuant to this Section 4.10(a)SEF.
(b) The Company is Except as would not, individually or in material compliance with the terms and provisions of aggregate, reasonably be expected to have a Material Adverse Effect, each Material Contract. The CompanyContract is valid, binding and enforceable against the Company and, to the Knowledge of the Company, the each other party to any Material Contract thereto, and is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect, except as may be limited by bankruptcy, insolvency, fraudulent conveyance, preferential transfer, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights and to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) (the “Equitable Exception”). Each There is no breach or violation of, or default under, any such Material Contract (by the Company or description) sets forth the entire agreement and understanding (or complete description of the material terms, Seller as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No no event or circumstance has occurred that, with notice or the lapse of time or the giving of notice or both, would constitute an event of a default under any Material Contract or result in a termination thereof or would cause or permit thereunder by the acceleration or other changes of any right or obligation Company or the loss of any benefit thereunder. The Company has no reason Seller as applicable, in each case except as would not, individually or in the aggregate, reasonably be expected to believe any party to any have a Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material ContractAdverse Effect.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Sources: Interest Purchase Agreement (Miami International Holdings, Inc.)
Material Contracts. (a) Section 4.10(a) Except as set forth on Schedule 3.17, on the Purchase Closing Date, none of the Company Disclosure Schedule sets forth a true, complete and correct list of each of the following Contracts to which the Company Group Companies is a party to or by which the Company is bound and by:
1. any Contract which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):
(i) all Contracts that contain contains restrictions with respect to payment of dividends or any other distribution in respect of the Membership Units its capital stock, rights or other Equity of the Companyinterests;
(ii) 2. any Contract that by its terms requires requiring the payment by or on behalf of the applicable Group Company to make future capital expenditures in excess of $100,000 per annum RMB 500,000 (either individually or in the delivery by the Company of goods or services aggregate);
3. any Contract applicable to Group Company, which lead to indebtedness with a fair market value an amount in excess of $100,000 per annum RMB500,000;
4. any loan or provides for the advance by a Group Company to receive payments to, or investment by a Group Company in, any Person, in each case, which involves an amount in excess of $100,000 per annum;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business)RMB500,000, or investment inany agreement, any Person contract or any agreement commitment relating to the making of any such loan, advance or investment investment;
5. any Contract with a Group Company, or any management, service, consulting or any other similar type of Contract requiring payment of fees in excess of $25,000RMB500,000 per year;
(iv) 6. any material warranty, guaranty Contract;
7. any material Contract that (i) requires the cannot be terminated by a Group Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material 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;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more liability upon less than ninety (90) days’ notice; and;
(xx) 8. any collective bargaining agreement with any labor union or other representative of employees;
9. any Contract that governs any joint venture, partnership or other cooperative arrangement or any other relationship involving a sharing of profits and risks;
10. any Contract that would result in the merger with or into or consolidation into another Person;
11. any Contract for the sale of any of the assets of any Group Company or for the grant to purchase, lease or otherwise acquire the right any Person of any preferential rights to own, use or lease purchase any property or of its assets;
12. any Contract in relation to real estate, including such Contracts entered into by an Affiliate but not limited to building purchase contract, building lease contract;
13. any Contract with any Governmental Authority; or any material amendment, modification or supplement in respect of any of the Company, for an amount in excess of $100,000, individually (foregoing made other than in the case ordinary course of business consistent with past practice (each of (1)-(13), a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a“Material Contract”).
(b) The Company is in material compliance with the terms True and provisions correct copies (or, if oral, written summaries) of each of the Material Contract. The Company, and Contracts have been made available to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure ScheduleBuyer.
(c) Each Material Contract is No condition exists or event has occurred that would constitute a default by (ix) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description any of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default Group Companies under any Material Contract or result in a termination thereof or would cause or permit the acceleration or (y) any other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contract.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Material Contracts. (a) Section 4.10(a) of the Company Disclosure Schedule The “Contracts Schedule” attached hereto sets forth a true, an accurate and complete and correct list of each of the following Contracts to which the Company is a party or by bound or which any assets, or properties of the Company is are subject to or bound and which have not been entirely fulfilled or performed (such ContractsContracts listed on or required to be listed on the Contracts Schedule, collectively, the “Material Contracts”):
(i) all Contracts that contain restrictions with respect the Company’s vendors or suppliers with whom the Company has spent more than $750,000 in the aggregate for the three (3) month period ending September 30, 2021, other than purchase orders entered into in the ordinary course of business;
(ii) Contracts (other than a purchase order) with any Key Dealer or Key Vendor;
(iii) Contracts relating to payment Indebtedness of dividends the Company or any other distribution guaranty by the Company of any obligation in respect of Indebtedness;
(iv) Contracts with distributors or sales representatives pursuant to which by the Membership Units Company makes annual payments in excess of $100,000 individually or other Equity $200,000 in the aggregate;
(v) employment, consulting and non-competition Contracts with any employee, officer or consultant whose base annual compensation is equal to or greater than $150,000 or any Contract that provides for severance, retention, change of control or similar payments to any current or former employee or consultant of the Company;
(vi) Contracts pursuant to which the Company is a lessor or a lessee of any property, personal or real, or holds or operates any tangible property, owned by another Person, except for any leases under which the aggregate annual rent or lease payments do not exceed $100,000 individually or $200,000 in the aggregate;
(vii) Contracts relating to or evidencing any Company Affiliated Transaction;
(viii) IP Agreements;
(ix) Contracts (including the Real Property Leases) (A) limiting or purporting to limit (1) the ability of the Company or any Affiliate thereof to engage in any line of business, (2) the ability of the Company to solicit, hire or employ any Person, other than any such obligations contained in customary non-disclosure agreements entered into in the ordinary course of business, (3) the ability of any Person to compete with or obtain any products or services from the Company, or (4) the ability of the Company to solicit the business of any other Person, (B) that provide for any exclusivity, preferred treatment, “most favored nation” treatment, minimum purchase, “take or pay”, minimum volume commitment or similar requirement, (C) that provide for any non-disparagement or similar covenants or (D) that provide for any other non-interference or restrictive covenant obligations;
(x) Contracts entered into by the Company since the beginning of the Look-Back Period or pursuant to which the Company has any outstanding rights or obligations, relating to the acquisition or disposition of, or investment in, any business, division or Person (whether by merger, sale of stock, sale of assets or otherwise), including investments in joint ventures and minority equity investments;
(xi) Contracts relating to an acquisition, capital expenditure, lease or disposition of any assets or group of assets (including capital assets) with a purchase or sales price (or annual rental obligations) in excess of $100,000 individually or $200,000 in the aggregate (other than sales of finished Inventory in the ordinary course of business);
(xii) any operating agreement, partnership agreement, joint venture agreement or other similar arrangement involving a sharing of profits, revenues, losses, costs or liabilities by the Company with any other Person (including any minority interests);
(xiii) Contracts under which the Company has made advances or loans to another Person, except loans or advances made to employees of the Company in the ordinary course of business in an amount not to exceed $5,000 individually or $20,000 in the aggregate;
(xiv) Contracts pursuant to which the Company has agreed to sell or issue any Equity Interests;
(xv) Contracts that grant any right of first refusal, right of first offer or similar right that limits or purports to limit the ability of the Company to own, operate, sell, transfer, pledge or otherwise dispose of any assets, properties or businesses (including the Real Property);
(xvi) any collective bargaining agreement or similar Contract with any labor union or similar organization;
(xvii) Contracts by which the Company holds any inventory of another Person under a consignment arrangement;
(xviii) Contracts relating to the settlement, conciliation or disposition of any Action involving the Company or any of its assets, businesses or properties involving monetary payments to or by the Company in excess of $100,000 or that involve any equitable or other material non-monetary relief;
(xix) Contracts that are an equityholder agreement, shareholder agreement, registration rights agreement or any arrangement relating to or affecting the ownership of the Equity Interests of the Company;
(xx) Contracts with any Governmental Authority;
(xxi) any Employee Plan;
(xxii) the Real Property Leases and any Contracts relating to any Owned Real Property;
(xxiii) each Dealer Agreement;
(xxiv) any Contracts with respect to freight forwarding or similar services; and
(xxv) Contracts or other documents granting any power of attorney with respect to the affairs of the Company outside of the ordinary course of business or that is otherwise material to the business, operations, assets or properties of the Company.
(b) The Company has made available to the Purchaser a true, complete and correct copy of all Material Contracts (other than purchase orders entered into in the ordinary course of business). Except as disclosed on the attached “Contracts Schedule,” (i) no event or condition has occurred since the beginning of the Look-Back Period, or exists, with or without notice or lapse of time (or both) that, individually or together with other events or conditions, directly or indirectly, would reasonably be expected to (A) constitute a breach, violation or default of the Company under any Material Contract or, to the Company’s Knowledge, any other party to such Material Contract, in any material respect, (B) permit the termination or modification of any Material Contract or (C) result in the acceleration of any right or obligation under any Material Contract, (ii) any each Material Contract that by is legal, valid and binding Contract, in full force and effect, and enforceable against the Company in accordance with its terms requires and, to the payment Company’s Knowledge, each other party thereto, except as such enforceability may be limited by the General Enforceability Exceptions, (iii) each Material Contract was duly authorized, executed and delivered by or on behalf of the Company in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances and, to the employees of the Company extended in the Ordinary Course of Business)Company’s Knowledge, or investment ineach other party thereto, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
and (iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material 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;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a).
(b) The Company is in material compliance with the terms and provisions of each Material Contract. The Company, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. 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. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respectsviolation, and the Company has not taken any action, and to the Company’s Knowledge, no other party is in breach, default or violation, or taken any action, in each case which, with or without notice or lapse of time, or both, would constitute a breach, default or violation, or permit termination, modification or acceleration, as applicable under such Material Contract. The Company is in compliance in all material respects with the terms and requirements of each Material Contract and, to the Company’s Knowledge, each other Person party to such Material Contract is in compliance with the terms and requirements of such Material Contract in all material respects. Since the beginning of the Look-Back Period, none of the Company, any Seller or any Affiliate of the foregoing has received (A) any written notice of, or to the Company’s Knowledge, verbal notice of, any actual, alleged, possible or potential material violation or breach of, default under, or failure to comply with, any term or requirement of any Material Contract or (B) any written notice of termination or intent the intention of any party or, to terminate the Company’s Knowledge, any verbal notice by any party party, to cancel, terminate, modify in a manner adverse to the Company, or fail to renew any Material Contract.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Material Contracts. (a) Section 4.10(a) Schedule 3.16 lists as of the Company Disclosure Schedule sets forth a true, complete and correct list date of each of this Agreement the following Contracts to which either of the Company Companies or any Subsidiary is a party or subject or by which the Company it is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):
(i) all Contracts that contain restrictions with respect to payment of dividends each employment, collective bargaining or any other distribution in respect of the Membership Units or other Equity of the Companyconsulting Contract;
(ii) any each distributor, reseller, OEM, dealer, manufacturer’s representative, broker, sales agency, advertising agency, finder’s, manufacturing or assembly Contract;
(iii) each Contract that by its terms requires or group of related Contracts with the payment by same party for the purchase of products or on behalf of the Company services with an undelivered balance in excess of $100,000 per annum 50,000;
(iv) each Contract or group of related Contracts with the delivery by same party for the Company sale of goods products or services with a fair market value an undelivered balance in excess of $100,000 per annum 50,000;
(v) each lease of real or provides for the Company to receive personal property with aggregate annual payments in excess of $100,000 per annum;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company1,000;
(vi) each Contract for the sale of any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrancecapital assets;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company each Contract for capital expenditures in excess of $50,000;
(viii) each Contract relating to the borrowing of money or to mortgaging, pledging or otherwise placing an Encumbrance on any bonds of the assets of each of the Companies or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another PersonSubsidiary;
(ix) all Contracts involving any joint ventureeach warranty, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development guaranty or other similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement undertaking with respect to contractual performance extended by the Companies or any Intellectual Property including, without limitation, the Company’s Intellectual Property (Subsidiary other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xviix) any Contracts with any Governmental Authority to which the Company is a partyeach guarantee of Indebtedness;
(xviiixi) each Contract relating to any Contracts that limit, in surety bond or letter of credit required to be maintained by the Companies or any material 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 timeSubsidiary;
(xixxii) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors each Contract concerning a partnership or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; andjoint venture;
(xxxiii) each Contract containing exclusivity, noncompetition or nonsolicitation provisions or that would otherwise prohibit either of the Companies or any Subsidiary from freely engaging in business anywhere in the world or prohibiting the solicitation of the employees or contractors of any other entity;
(xiv) each Contract terminable by any other party upon a change of control of either of the Companies or any Subsidiary or upon the failure of either of the Companies or any Subsidiary to satisfy financial or performance criteria specified in such Contract;
(xv) each profit sharing, bonus, pension, deferred compensation, stock purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by stock option and stock incentive plan (other than an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option termEmployee Benefit Plan); and
(xxixvi) any other Contract each power of attorney that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)currently in effect.
(b) The Company Each Material Contract is valid and binding, currently in force and enforceable in accordance with its terms, except to the extent enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting the enforcement of creditors’ rights generally and by general equitable principles. Each of the Companies and the Subsidiaries has performed all material compliance obligations required to be performed by it in connection with the terms and provisions of each Material Contract. The CompanyNeither of the Companies nor any Subsidiary has received any notice of any claim of default by it under or termination of any Material Contract. Neither of the Companies nor any Subsidiary has any present expectation or intention of not fully performing any material obligation pursuant to any Material Contract, and to the Knowledge of the CompanySellers there is no material breach, the other party to any Material Contract is not in anticipated breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) either of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (Companies or description) sets forth the entire agreement and understanding (a Subsidiary or complete description of the material terms, as applicable), between the Company, on one hand, and the any other parties thereto, on the other hand, with respect to the subject matter thereof. 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. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contract.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Sources: Stock Purchase Agreement (Iowa Telecommunications Services Inc)
Material Contracts. (a) Section 4.10(a) 3.13 of the Company Disclosure Schedule sets forth a true, complete and correct list of each ------------ all of the following Contracts agreements, contracts and commitments, written or oral, to which the Company or any of its subsidiaries is a party or by which the Company any of them or any of their respective properties is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, as of the “Material Contracts”):
date of this Agreement: (i) all Contracts that contain restrictions with respect mortgages, indentures, security agreements and other material agreements and instruments relating to payment the borrowing of dividends money by or extension of credit to the Company or any of its subsidiaries (other distribution than accounts payable, accrued expenses, customer advances and similar items in respect the ordinary course of business that might be deemed the extension of credit) or the guarantee by the Company or any of its subsidiaries of the Membership Units indebtedness of any person where the amount of such borrowed money, credit extension or other Equity indebtedness exceeds $25,000 individually; (ii) employment agreements, consulting agreements and commitments with any officer, employee or member of the Company;
(ii) 's or any Contract that by of its terms requires the payment by or on behalf subsidiaries' Board of the Company in excess of $100,000 per annum or the delivery Directors not cancelable by the Company or one of goods its subsidiaries, as the case may be, on not more than 90 days' notice and without liability or services with a fair market value in excess of $100,000 per annum financial obligation or provides for the Company to receive which involve payments in excess of $100,000 per annum;
25,000; (iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) agreements, orders or advance to (other than travel and entertainment advances to the employees of commitments not cancelable by the Company extended in or one of its subsidiaries, as the Ordinary Course of Business)case may be, on not more than 90 days' notice and without liability or investment in, any Person financial obligation for the purchase by the Company or any agreement relating to the making one of any such loan, advance its subsidiaries of supplies or investment finished products exceeding $50,000 per year; (iv) agreements or commitments for capital expenditures involving payments in excess of $25,000;
(iv) 25,000 for any Contract that (i) requires the Company to purchase any product single item or service in excess of $100,000 from a third party or (ii) requires that in the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
aggregate; (v) any Contract agreements that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to restrict the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company 's or any successor thereto from engaging or competing in any manner, in any location or of its subsidiaries' ability to compete in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability of the Company to compete in any line of business or with any Person or in any geographic area region or during would so limit the Company, any period of time;
its subsidiaries, or the Surviving Corporation or any of its subsidiaries after the Effective Time; (xixvi) all except as contemplated in Section 2.9 with respect to Company Options set forth in Section ------- 3.2(b) in the Company Disclosure Schedule, agreements or plans, including any ------ stock option plan, stock appreciation right or stock purchase plan, any of the benefits of which will be accelerated or the value of which will be calculated by the occurrence of any of the transactions contemplated by this Agreement, the Transaction Option Agreement or the Stockholders' Agreements; (vii) agreements, contracts and commitments other than those described in the foregoing clauses (i) employment through (vi) which in any case involve payments or receipts of more than $100,000 per year and which are not cancelable on not more than 90 days' notice and without liability or financial obligation; (viii) agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) pursuant to which the Company is a party or any of its subsidiaries manufactures products for sale by third parties (i.e. OEM or private labeling agreements); (ix) indemnification agreements or subrogation agreements other than those contemplated in the Company Charter Documents, licenses entered into or warranties given in the ordinary course of business and similar ordinary course of business undertakings; (x) agreements with U.S. or foreign distributors; and (xi) agreements, contracts and commitments which are currently effective and which are not cancellable without material penalty have been, or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate as of the Companydate of this Agreement will be, for an amount in excess required to be filed by the Company or any of $100,000, individually (in its subsidiaries with the case of a lease, per annum) or $150,000 in SEC pursuant to the aggregate (in the case of a lease, for the entire term requirements of the leaseExchange Act and the rules and regulations thereunder (the items in (i) through (xi) above being, not including any option termcollectively, the "Material Contracts"); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a).. ------------------
(b) The Company is in material compliance with the terms and provisions of each Material Contract. The Company, and has heretofore furnished to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, Parent a complete and correct copy of each written Material Contract (unless any such Material Contract has not been reduced to writing, in which case the Company has provided to Purchaser a complete and a correct written description of each verbal thereof). Each such Material Contract is set forth identified in Section 4.10(a) 3.13 of the Company Disclosure Schedule.
(c) Each Schedule is a valid and binding ------------ obligation of the Company or one of its subsidiaries, as the case may be, and is in full force and effect without amendment, except where not being a valid and binding obligation or in full force and effect without amendment would not have a Material Adverse Effect on the Company. The Company or one of its subsidiaries, as the case may be, has performed, and to the Company's and each of its subsidiaries' knowledge, each other party to any such Material Contract has performed, in all material respects, the obligations required to be performed by it under the Material Contracts, neither the Company nor any of its subsidiaries is, and to the Company's and each of its subsidiaries' knowledge, no other party to any such Material Contract is (i) valid and binding on with or without lapse of time or the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (giving of notice, or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicableboth), between in material breach or default thereunder, and to the Company, on one hand, 's and the other parties thereto, on the other hand, with respect to the subject matter thereof. No each of its subsidiaries' knowledge no event or circumstance has occurred thatwhich, with after notice or lapse the passage of time or both, would constitute an event of a material default under any such Material Contract or result in a termination thereof impair the Company's or would cause or permit the acceleration or other changes any of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all subsidiaries' material respects, and the Company has not received any notice of termination or intent to terminate by any party to rights under any Material Contract, or give to any person rights of termination, amendment, acceleration or cancellation of the Material Contract.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Sources: Merger Agreement (Agfa Corp)
Material Contracts. (a) Section 4.10(a) of the Company Disclosure Schedule SCHEDULE 3.13 sets forth a true, correct and complete and correct list of each of the following Contracts all contracts, commitments, licenses, agreements, obligations or arrangements, whether oral or written, formal or informal, to which the any Company Party is a party (or by intends to become a party) or to which the Company any of its assets or properties is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):bound:
(i) all Contracts that contain restrictions with respect under which any Company Party is indemnified for or against any liability in excess of $100,000 or under which any Company Party is or could be obligated to payment indemnify any Person in excess of dividends or any other distribution in respect of the Membership Units or other Equity of the Company$100,000;
(ii) under which any Contract that by its terms requires Company Party leases personal property from or to third parties under Capital Leases which involve rental payments of at least $25,000 per annum or under operating leases which involve rental payments of at least $100,000;
(iii) for the payment by purchase or on behalf sale of products or other personal property or for the furnishing or receipt of services (A) which calls for performance over a period of more than one (1) year, (B) which involves payments of more than the $100,000 in the aggregate or (C) in which any Company Party has agreed to purchase a minimum quantity of goods or services or has agreed to purchase goods or services exclusively from any Person;
(iv) (A) granting representation, marketing or distribution rights or (B) relating to Intellectual Property (including, without limitation, license, franchise or similar agreements);
(v) under which any Company Party has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) Indebtedness in excess of $100,000 per annum 100,000;
(vi) establishing or the delivery by the Company maintaining any partnership, joint venture or strategic alliance;
(vii) under which there is or may be imposed a security interest or other Lien on any of goods its assets, whether tangible or services with a intangible, whose net book value or fair market value is in excess of $100,000 per annum 50,000 (other than the security interests or provides for Liens granted in favor of the Purchaser and the Bank);
(viii) concerning any confidentiality or non-solicitation obligations entered into outside the ordinary course of business;
(ix) under which any Company Party is restricted from carrying on its business or any part thereof, or from competing in any line of business or with any Person;
(x) with officers, directors, employees, consultants or independent contractors of any Company Party;
(xi) resulting in the creation of any Lien (including any lease notifications) other than a Permitted Lien;
(xii) involving any Affiliates of any Company Party;
(xiii) under which the consequences of a default or termination could have a Material Adverse Effect;
(xiv) under which any Company Party will (A) receive aggregate payments from customers, (B) make aggregate payments to vendors or other suppliers or (C) make or receive aggregate payments to or from any other Persons, in each case in excess of $100,000 per annum;
(iiixv) all Contracts involving under which any Governmental Authority is a loan party (other than accounts receivable owing from trade debtors in the Ordinary Course of Businessor a beneficiary thereof) or advance that involves payments to (other than travel and entertainment advances to the employees of the any Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment Party in excess of $25,000;500,000 and that is less than fifty percent (50%) completed by the Company Parties; and
(ivxvi) not entered into in the ordinary course of business and not otherwise disclosed on SCHEDULE 3.13 in response to any Contract that of the foregoing clauses. All of the contracts, commitments, licenses, agreements, obligations or arrangements described in clauses (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or through (iixvi) requires that the Company deal exclusively with a third party in connection above, together with the sale real property leases, subleases, licenses and other interests described in SECTION 3.24, whether entered into prior to, on or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining , are collectively referred to herein as the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material 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;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)"MATERIAL CONTRACTS".
(b) The Company is in material compliance with the terms and provisions of Except as disclosed on SCHEDULE 3.13(b), each Material Contract. The Company, and to the Knowledge Contract existing as of the Companydate hereof is a legal, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete valid and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) binding obligation of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding Party or Parties that are party thereto, on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, enforceable against each of them in accordance with respect its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or conveyance or similar laws relating to or limiting creditors' rights generally or by equitable principles relating to enforceability, and is in full force and effect. The parties to each Material Contract existing as of the subject matter date hereof are in substantial compliance with the terms thereof. No event , and no default or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under by any Material Contract or result in Company Party or, to the best knowledge of the Company Parties, any other party thereto exists thereunder.
(c) Except as set forth on SCHEDULE 3.13(c), neither the Company nor any of its Subsidiaries is a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill contract, commitment, license, agreement, obligation or arrangement that restricts it from carrying on its obligations thereunder business or any part thereof, or from competing in all material respects, and the Company has not received any notice line of termination business or intent to terminate by with any party to any Material Contractother Person.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Sources: Securities Purchase Agreement (Levine Leichtman Capital Partners Ii Lp)
Material Contracts. Except as set forth on the Disclosure Schedules, no Cannavative Entity is party to any Contract:
(a) Section 4.10(a) of the Company Disclosure Schedule sets forth constituting a truepartnership, complete and correct list of each of the following Contracts to which the Company is a party or by which the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):
(i) all Contracts that contain restrictions with respect to payment of dividends or any other distribution in respect of the Membership Units or other Equity of the Company;
(ii) any Contract that by its terms requires the payment by or on behalf of the Company in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(xb) all Contracts involving limiting or restricting the ability of such Cannavative Entity to engage in any resolution market or settlement line of business in any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Datematerial respect;
(xic) for the sale or transfer of any Contract limiting or restraining material assets of such Cannavative Entity, other than sales in the Company or any successor thereto from engaging or competing in any manner, in any location or in any ordinary course of business;
(xiid) all Affiliate Contractsrelating to the acquisition by such Cannavative Entity of any operating business or the material assets or capital stock of any other Person;
(xiiie) relating to the incurrence, assumption, surety or guarantee of any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licenseeindebtedness;
(xivf) under which there is imposed any Contract concerning material Encumbrance on such Cannavative Entity or the acquisition, disposition, occupancy, management assets or operation of any Real Property owned, leased or used by the Companyproperties thereof;
(xvg) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material under which such Cannavative Entity leases personal property from or to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material 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;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount third parties having aggregate payments in excess of $100,000, individually 50,000 per year;
(h) under which such Cannavative Entity is obligated to indemnify any Person other than in the case ordinary course of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); andbusiness;
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a).
(b) The Company is in material compliance with the terms and provisions of each Material Contract. The Company, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid under which such Cannavative Entity has made or is required to make any advances or loans to any Person;
(j) that expires more than one year after the effective date of this Agreement and binding on the Company party thereto which has aggregate payments in accordance with its respective terms and excess of $50,000 per year;
(iik) will require payments of such Cannavative Entity in full force and effect. Each Material Contract excess of $100,000 in any twelve- month period;
(or descriptionl) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, contains restrictions with respect to the subject matter thereof. No event payment of dividends 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 other distributions in a termination thereof or would cause or permit the acceleration or other changes respect of any right or obligation or of the loss equity interests of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contract.such Cannavative Entity;
(dm) The Company has no Liability for the deferred purchase price that consists of propertya members', goods or servicesshareholders', whether connected or not to the acquisition of any business (earnbuy-out sell, put-call or other similar type of paymentsagreement;
(n) with any Seller, or noncompetition agreementany of its officers or directors or Affiliates of the foregoing Persons, other than salaries and other employment compensation and benefits payable in the ordinary course and disclosed to AcquisitionCo and ▇▇▇▇▇▇▇▇, or loans from individual Sellers to Cannavative disclosed to AcquisitionCo and Vencanna; or
(o) that requires the purchase of all or substantially all of its requirements of a particular product from a supplier. Complete and correct copies of each of the Contracts required to be described in the Disclosure Schedules pursuant to this Section 3.01(31) ("Material Contracts") have been provided to AcquisitionCo and Vencanna.
Appears in 1 contract
Sources: Unit Contribution and Sale Agreement
Material Contracts. Except as filed as exhibits to the Company SEC Documents and made publicly available no less than one (a1) Business Day prior to the date of this Agreement, Section 4.10(a) 4.11 of the Company Disclosure Schedule sets forth a true, true and complete and correct list of each of the following Contracts Contract to which the Company or any of its Subsidiaries is a party or by which any of its or their properties or assets are bound, which as of the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):date of this Agreement:
(ia) all Contracts that contain restrictions with respect to payment is a “material contract” (as such term is defined in Item 601(b)(10) of dividends or any other distribution in respect Regulation S-K of the Membership Units or other Equity of the CompanyExchange Act);
(iib) any Contract that by its terms requires the payment by or on behalf of the Company involves annual expenditures in excess of $100,000 per annum 1,000,000, whether or not entered into in the delivery by ordinary course of business;
(c) is with a Principal Customer;
(d) is with a Principal Supplier;
(e) (i) materially restricts or prohibits the Company or any of goods its Subsidiaries from competing with any other Person in any line of business or any geographic area or from purchasing or selling any products or services with in any geographic region, (ii) grants exclusivity or “most favored nation” status to any other Person or (iii) contains a fair market standstill or similar agreement that will be in effect as of the Closing pursuant to which the Company or any of its Subsidiaries has agreed not to acquire the assets or securities of another Person in any material respect;
(f) relates to the acquisition or disposition (in each case, whether by merger, consolidation, acquisition or sale of stock or otherwise) of (i) any equity interest in any Person or a substantial portion of the assets of any Person, in each case having a value in excess of $100,000 per annum 3,000,000 that has not yet been consummated or provides for that has continuing material obligations (including indemnification, deferred payment obligations or other contingent obligations), other than the sale and purchase of inventory in the ordinary course of business or (ii) any equity interest in the Company or a substantial portion of the assets of the Company and its Subsidiaries not in the ordinary course of business and having a value of more than $5,000,000;
(g) grants to receive payments any Person any option, right of first offer or right of first refusal or similar right to purchase, lease, sublease, license, use, possess or occupy any assets of the Company or any of its Subsidiaries that have a value in excess of $100,000 per annum1,000,000;
(iiih) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition a partnership, joint venture or divestiture of material assets that contains covenantssimilar arrangement, indemnities or other contractual obligations that could impose a Liability that is material unless immaterial to the Company;
(vii) is a settlement, non-prosecution or similar agreement that provides for any continuing material obligations (whether in the form of performance or restraints on action) by the Company or any of its Subsidiaries;
(j) is a Government Contract involving annual payments of $1,000,000 or more;
(k) (i) provides for any material license granted by any third party for the use of Intellectual Property, other than (A) licenses of Open Source Software or (B) non-exclusive, “click-through”, “shrink-wrapped” or other commercially available off-the-shelf Software or (ii) provides for any material license granted to any Person of any Owned Intellectual Property, other than non-exclusive licenses granted by the Company or any of its Subsidiaries to customers, or to vendor or service providers for the benefit of the Company or its Subsidiaries, in each case, in the ordinary course of business;
(l) restricts the payment of dividends or the making of distributions to stockholders or the repurchase of stock or other equity of the Company or any of its Subsidiaries (other than any Contract in respect of non-recourse financing or tax equity financing in respect of a project);
(m) is a Company Employee Agreement with any current executive officer of the Company or any member of the Company Board;
(n) is a collective bargaining agreement or other Contract with any union;
(o) is a Contract, other than any agreement related to their employment, between the Company or any of its Subsidiaries, on the one hand, and any director or executive officer of the Company or any Person beneficially owning five percent (5%) or more of the outstanding shares of Company Common Stock or any of their respective Affiliates, on the other hand (other than any Company Benefit Plan); and
(p) is a Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is Subsidiary incurs Indebtedness having a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material 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;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an principal amount in excess of $100,0001,000,000, individually (other than accounts receivables and payables incurred or arising in the case ordinary course of business. Each contract of the type described above in Section 4.11 is referred to herein as a lease, per annum) “Material Contract”. True and correct copies of each Material Contract have been made available to Parent. Except for expirations or $150,000 terminations in the aggregate (ordinary course of business in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a).
(b) The Company is in material compliance accordance with the terms and provisions of such Material Company Contracts or that would not have a Company Material Adverse Effect, (x) each Material Contract. The CompanyContract is valid and binding on the Company or its Subsidiaries and, and to the Knowledge of the Company, the each other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breachthereto, default or notice of termination by any Person under any Material Contract. A trueas applicable, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract effect (or description) sets forth except as such enforceability may be limited by the entire agreement Bankruptcy and understanding (or complete description of the material terms, as applicableEquity Exceptions), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No (y) there is no event or circumstance condition which has occurred thator exists, which constitutes or would reasonably be expected constitute (with notice or lapse without notice, the happening of time any event or both, would constitute an event the passage of time) a default or breach 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. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and by the Company has not received or any notice of termination or intent to terminate by any party to any its Subsidiaries that would have a Company Material ContractAdverse Effect.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Material Contracts. (a) Section 4.10(a5.14(a) of the Company Disclosure Schedule sets forth a truelists, complete and correct list of each as of the following Contracts date hereof, any Contract to which the Company or any Subsidiary of the Company is a party that meets any of the following criteria and is not an agreement solely between or by which among any wholly-owned Subsidiaries of the Company is bound or the Company and which have not been entirely fulfilled any one or performed more wholly-owned Subsidiaries of the Company (each such ContractsContract, collectivelyincluding any such Contract entered into after the date of this Agreement, the a “Material ContractsContract”):
(i) requires expenditures by the Company or any of its Subsidiaries in excess of $150,000 per annum and is not terminable by such party upon notice of sixty (60) days or less without penalty;
(ii) provides for required aggregate payments to be received by the Company or any of its Subsidiaries in excess of $150,000 per annum and is not terminable by such party upon notice of sixty (60) days or less without penalty;
(iii) relates to (A) the incurrence by the Company or any of its Subsidiaries of any Indebtedness for borrowed money, other than any such Contract relating to Indebtedness for borrowed money which does not exceed $150,000 outstanding or (B) the creation of any Encumbrance (other than Permitted Encumbrances) on any material asset of the Company or any of its Subsidiaries;
(iv) provides for the acquisition or disposition by the Company or any of its Subsidiaries outside the ordinary course of business of any material assets or any material business (whether by merger, sale or purchase of stock, sale or purchase of assets or otherwise) to the extent any actual or contingent obligations of the Company or any of its Subsidiaries thereunder in excess of $250,000 individually remain in effect;
(v) materially restricts or limits the Company’s ability, or the ability of any of its current or future Affiliates (including, after consummation of the Transaction, any Affiliates of Parent or Purchaser), to freely engage in any business, compete with other entities, market any product, solicit customers or solicit or hire employees, or provides for “exclusivity”, “most favored nation” status or any similar requirement, in each case in favor of any Person other than the Company or any of its Subsidiaries;
(vi) contains guarantees made or supported by the Company or any of its Subsidiaries that are not terminable by the Company or its Subsidiaries upon notice of sixty (60) days or less without penalty;
(vii) is a collective bargaining agreement;
(viii) is an agreement pursuant to which licenses under, or rights to use, material Intellectual Property are granted to or from the Company or any of its Subsidiaries, other than (1) “shrink wrap” or “click through” licenses or other licenses of generally available computer software, hardware or databases, (2) computer software that is pre-installed as a standard part of hardware purchased by the Company or any of its Subsidiaries, in each case of clauses (1) and (2), having annual license, maintenance, support and other fees of less than $150,000 in the aggregate for all Contracts that contain restrictions such related Contracts, and (3) standard form licenses granted to customers by the Company or its Subsidiaries in the ordinary course of business consistent with past practice;
(ix) relates to any partnership, joint venture, strategic alliance or similar arrangement material to the Company and its Subsidiaries (taken as a whole);
(x) is or would be required to be filed by the Company as a “material contract” with the SEC pursuant to Item 601 of Regulation S-K under the Securities Act;
(xi) grants any rights of first refusal or rights of first negotiation or rights of first offer to any Person with respect to payment the sale, transfer or other disposition of dividends (A) any business or line of business of the Company or any other distribution in respect of the Membership Units its Subsidiaries or other Equity (B) any Subsidiary of the Company;
(iixii) any Contract that by its terms requires the payment by hedge, derivative or other similar instrument with an obligation on behalf of the Company a marked-to-market basis in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors 100,000, in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contractsaggregate;
(xiii) any Company IP Agreements as well as Contract with any Contract Governmental Authority under which payments in excess of $150,000 were received by the Company is a party providing for and its Subsidiaries in the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;most recently completed fiscal year; or
(xiv) contains an obligation to enter into any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material 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;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)foregoing.
(b) The Company is in material compliance with the terms and provisions of With respect to each Material Contract. The Company, assuming the due authorization, execution and delivery thereof by the other party or parties thereto, (i) such Material Contract is in full force and effect and is a valid and binding obligation of the Company or its Subsidiaries, as applicable, and, to the Knowledge of the Company, the each other party or parties thereto, enforceable in accordance with its terms, subject to the Bankruptcy and Equity Exceptions, (ii) neither the Company nor any Subsidiary of the Company, as applicable, is, and, to the Knowledge of the Company, no other party thereto is, in default or breach (with or without notice or lapse of time, or both) of such Material Contract is not in breach and (iii) to the Knowledge of the Company, no event has occurred that constitutes or default under any of its terms. The Company has not received notice of any breach, would constitute a default or breach (with or without notice or lapse of termination by any Person time, or both) under any such Material Contract. A true, complete except, with respect to the foregoing clauses (i), (ii) and correct copy of each written (iii), where such failures to be valid and binding, in full force and effect or enforceable and such defaults or breaches have not had and would not, individually or in the aggregate, reasonably be expected to have a Company Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure ScheduleAdverse Effect.
(c) Each The Company has made available to Parent, as of the date of this Agreement, copies of (including all amendments or modifications to) all Material Contracts.
(d) With respect to each Material Contract is between or among the Company or any of its Subsidiaries and a Governmental Authority: (i) valid since March 31, 2012, all representations and binding on certificates by the Company party thereto or any of its Subsidiaries executed, acknowledged or set forth in accordance such Contract were complete and correct in all material respects as of the effective date thereof, and the Company and its Subsidiaries have complied in all material respects with its respective terms all such representations and certifications, (ii) in full force and effect. Each Material Contract (or description) sets forth to the entire agreement and understanding (or complete description of the material termsCompany’s Knowledge, as applicable), between neither the Company, on one handany of its Subsidiaries, nor any of their respective directors, officers or employees, since March 31, 2012, has been or is now under administrative, civil, or criminal investigation, or indictment or audit by any Governmental Authority nor has any such investigation or audit been threatened, (iii) there exist no outstanding written claims against the Company or its Subsidiaries by any Governmental Authority arising under or relating to any such Contract and the other parties thereto(iv) no termination for convenience, on the other handtermination for default, stop work order, cure notice or show cause notice is in effect pertaining to any such Contract except, with respect to the subject matter thereofforegoing clauses (i)–(iv), as have not had and would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. No event To the Knowledge of the Company, neither the Company nor any of its Subsidiaries nor any of their respective directors, officers, or circumstance employees has occurred that(x) since March 31, 2012, been suspended or debarred from doing business with notice any Governmental Authority, no such suspension or lapse debarment has been threatened or initiated and the consummation of time or both, would constitute an event of default under any Material Contract or the Transactions by the Company will not result in a termination thereof any such suspension or would cause or permit the acceleration or other changes debarment of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company or any of its Subsidiaries or (y) has not received any notice of termination Contracts which require it to obtain or intent to terminate by maintain a security clearance with any party to any Material ContractGovernmental Authority.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Material Contracts. (a) Section 4.10(a) Except for this Agreement and except for Employee Benefit Plans and any Real Property Leases, as of the date of this Agreement, other than those Contracts set forth on Schedule 3.6(a) (which shall be organized by subsection to conform to each clause below) the Company Disclosure Schedule sets forth is not a true, complete and correct list party to or bound by any:
(i) Contract relating to Indebtedness or undrawn letters of each of the following Contracts to credit;
(ii) lease or other Contract under which the Company is a party lessee of or holds or operates any tangible property, owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $100,000;
(iii) lease or agreement under which the Company is lessor of or permits any third party to hold or operate any tangible property, owned or controlled by the Company, except for any lease or agreement under which the aggregate annual rental payments do not exceed $100,000;
(iv) Contract that relates to any disposition or acquisition of assets or properties by the Company or any material merger or business combination with respect to the Company;
(v) Contracts containing most favored nations or most favored customer provisions;
(vi) Contract under which the Company: (A) is bound by any non-competition, non-solicitation (other than customer employee non-solicitation covenants), or non-hire provisions, or any other provisions restricting its right to engage in any line of business or provide any goods or services; (B) has granted any exclusive rights or any options therefor relating to any material portion of its business; (C) is the exclusive provider of services, goods or other products to any counterparty for any period; or (D) has granted any rights of first offer or refusal relating to any material portion of its business;
(vii) Contract under which employees, officers, directors or independent contractors of the Company are bound by non-competition and non-solicitation covenants;
(viii) Contract under which the Company has advanced or loaned any amount to any of its current or former equity holders, directors, managers, officers, employees, independent contractors or other service providers (other than advancement of expenses in the ordinary course of business consistent with past practice);
(ix) Contract under which the Company has or will have any minimum purchase obligations requiring purchases in an amount that would reasonably be expected to exceed in the twelve months following the Closing Date $100,000 individually for such Contract (including any such Contract that contains a penalty or “take-or-pay” provision for failure to purchase such amount);
(x) Contract with any Governmental Entity; and
(xi) other Contract (other than any Employee Benefit Plan) that involves the expenditure, payment or receipt of more than $100,000 annually and is not been entirely fulfilled terminable by the Company without penalty on notice of 60 days or performed less (such Contracts, collectively, the “Material Contracts”):
(i) all Contracts that contain restrictions with respect to payment of dividends or any other distribution in respect of the Membership Units or other Equity of the Company;
(ii) any Contract that by its terms requires the payment by or on behalf of the Company in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material 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;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a).
(b) Each Material Contract is valid and binding on the Company and enforceable in accordance with its terms against the Company and, to the Seller’s Knowledge, each other party thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity). The Company is not (and, to the Seller’s Knowledge, no other party to any such Material Contract is) in material compliance with the terms and provisions breach of each or default under any Material Contract, with or without the lapse of time or the giving of notice or both. The CompanySince December 31, and to the Knowledge of the Company2018, the no other party to any Material Contract is not has materially reduced or otherwise materially adversely modified the business conducted under such Material Contract, has communicated in writing (or, to Seller’s Knowledge, communicated orally to the Company) threatening or stating its intention to terminate such Material Contract, or has provided written notice (or, to Seller’s Knowledge, communicated orally to the Company) claiming a breach of or default under under, or repudiating any of its terms. The Company has not received notice of any breachmaterial provision of, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. 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. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any such Material Contract.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Exela Technologies, Inc.)