Specified Contracts. (a) Except for this Agreement, the Patent Purchase Agreement and the Contracts filed prior to the date of this Agreement as exhibits to the Company SEC Reports, Section 4.8 of the Company Disclosure Schedule sets forth a list, as of the date hereof, of each Contract to which the Company or any of its Subsidiaries is a party: (i) that would be required to be filed by the Company as a material contract pursuant to Item 601(b)(10) of Regulation S-K promulgated by the SEC; (ii) that contains any non-competition or other agreement that limits the ability of the Company or any Company Subsidiary to compete in any line of business, in any geographic area or with any Person, which limitation would reasonably be expected to be material to the Company and the Company Subsidiaries taken as a whole, and other than distribution arrangements for specific geographic areas that Company enters into in the ordinary course of business; (iii) that would, individually or in the aggregate, prevent, materially delay or materially impair the Company’s ability to consummate the Transactions; (iv) that is (A) an indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage or other agreement providing for or securing, as applicable, a principal amount of indebtedness for borrowed money of the Company and the Company Subsidiaries in excess of $1,500,000 outstanding on the date hereof, other than intercompany agreements, or (B) a guarantee of indebtedness for borrowed money of any third party with potential liability thereunder in excess of $1,500,000, other than intercompany agreements; (v) that is for the sale of any of its assets after the date hereof in excess of $1,500,000, other than the license of products and sale of services in the ordinary course of business; (vi) under which the Company and the Company Subsidiaries are required to make annual capital expenditures after the date hereof in excess of $1,500,000; (vii) containing a right of first refusal, right of first negotiation or right of first offer in favor of a party other than the Company and the Company Subsidiaries, which right would reasonably be expected to be material to the Company and the Company Subsidiaries taken as a whole; (viii) other than intercompany agreements, (A) for the furnishing of services or the licensing of products (other than pursuant to a Customer License Agreement) under which the Company or any Company Subsidiary has the right to receive consideration in excess of $1,500,000 in any twelve (12) month period after the date hereof, (B) for the receipt of third party services or for the purchase of supplies, products, or other personal property, in each case after the date hereof, which requires payment by the Company or any Company Subsidiary of consideration in excess of $1,000,000 in any twelve (12) month period after the date hereof, or (C) including the licensing or sublicensing of or right to distribute, Company Products through or with resellers, distributors, franchisees or other similar channel partners and under which the Company or any Company Subsidiary has the right to receive consideration in excess of $2,000,000 in any twelve (12) month period; (ix) pursuant to which the Company or any Company Subsidiary has entered into a partnership, joint venture or other similar arrangement with any Person other than the Company or a majority owned Company Subsidiary, which arrangement would reasonably be expected to be material to the Company and the Company Subsidiaries taken as a whole; (x) that is a severance agreement, retention agreement or employment agreement or other Contract with or in relation to an employee or former employee, executive officer or director of the Company or any Company Subsidiary providing for (under any circumstances) aggregate compensation in excess of $300,000 from the Company or any Company Subsidiary in any twelve (12) month period after the date hereof; (xi) that requires material future payments or expenditures relating to cleanup, abatement, remediation or similar actions in connection with material environmental liabilities incurred by the Company or any Company Subsidiary; (xii) other than intercompany agreements, pursuant to which the Company or any Company Subsidiary (A) is granted or obtains any right to use any material Intellectual Property, except for off-the-shelf Software, for which Intellectual Property the Company or any Company Subsidiary is or is reasonably expected to be obligated to make payments in excess of $200,000 per year, (B) except as set forth in (A) above, is restricted in its right to use or register any Company Owned Intellectual Property, which restriction would be reasonably expected to be material to the Company and the Company Subsidiaries taken as a whole, (C) discloses or otherwise agrees to give access to material and confidential Company Source Code, (other than Contracts (1) entered into with third party developers or consultants related to development of the Company Products at the Company or a Company Subsidiary’s direction, with third parties that receive Company Source Code in order to develop products compatible with any Company Products, or with escrow agents, and (2) Contracts related to the Novell Embedded Systems Technology (NEST)), or (D) has agreed to assign, transfer or sell ownership rights in or with respect to any material Company Owned Intellectual Property (collectively, the “IP Contracts”); (xiii) is a material Customer License Agreement pursuant to which the Company received over $2,000,000 in revenue in the Company’s fiscal year 2009; (xiv) that provides for the pending or future acquisition or disposition of any business or any material assets other than in the ordinary course of business (whether by merger, sale of stock or assets or otherwise) and involves consideration in excess of $1,500,000; or (xv) that is a collective bargaining agreement between the Company or any of its Subsidiaries and a labor union that was negotiated by the Company or any of its Subsidiaries. Each such Contract described in clauses (i)-(xv) is referred to herein as a “Specified Contract”. (b) As of the date hereof, except as would not have a Company Material Adverse Effect, (i) neither the Company nor any of the Company Subsidiaries is (and, to the Knowledge of the Company, no other party is) in breach or default under any Specified Contract (and no event has occurred with which notice or lapse of time or both would constitute a default or violation by the Company or any of the Company Subsidiaries thereunder), (ii) each of the Specified Contracts is in full force and effect, and is the valid, binding and enforceable obligation of the Company or a Company Subsidiary (except as such enforceability may be limited by applicable bankruptcy, reorganization, moratorium, liquidation, conservatorship, receivership or similar laws relating to, or affecting generally the enforcement of, creditors’ rights and remedies or by other equitable principles of general application (regardless of whether such enforceability is considered in a proceeding in equity or at law)), and to the Knowledge of the Company, of the other parties thereto, and (iii) neither the Company nor any of the Company Subsidiaries has received any notice of termination with respect to, and, to the Knowledge of the Company, no party has threatened in writing to terminate, any Specified Contract. The Company has made available to Parent true and complete copies of each Specified Contract, including all material amendments thereto.
Appears in 1 contract
Sources: Merger Agreement (Novell Inc)
Specified Contracts. (a) Except for this Agreement, the Patent Purchase Agreement and the Contracts filed prior to As of the date of this Agreement as exhibits to Agreement, neither the Company SEC Reports, Section 4.8 nor any of the Company Disclosure Schedule sets forth a list, as of the date hereof, of each Contract to which the Company or any of its Subsidiaries is a party:
(i) that would be party to any Contract required to be filed by the Company as a “material contract contract” pursuant to Item 601(b)(10) of Regulation S-K promulgated by under the SECSecurities Act that has not been so filed.
(b) Except as the same has been filed as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act, Section 3.16(b) of the Company Disclosure Letter sets forth, as of the date of this Agreement, a true and complete list of:
(i) each loan and credit agreement, note, debenture, bond, indenture and other similar Contract pursuant to which Indebtedness of the Company or any of the Company Subsidiaries is outstanding or may be incurred in an amount in excess of $250,000, other than any such Contract between or among any of the Company and any of the Company Subsidiaries;
(ii) that contains any non-competition or other agreement that limits the ability of each Contract to which the Company or any Company Subsidiary to compete in any line of business, in any geographic area or with any Person, which limitation would reasonably be expected to be material to the Company and the Company Subsidiaries taken as is a wholeparty entered into since January 1, 2018 or with respect to which the Company or any of the Company Subsidiaries has any continuing material obligations, in each case, relating to the acquisition or disposition by the Company or any of the Company Subsidiaries of properties or assets for, in each case, aggregate consideration of more than $250,000, except for acquisitions and other than distribution arrangements for specific geographic areas that Company enters into dispositions of properties and assets in the ordinary course of business;
(iii) each Contract that wouldgrants to any person any option, individually right of first offer or in right of first refusal or similar right to purchase, lease, sublease, license, use, possess or occupy any securities, assets or other interest of the aggregate, prevent, materially delay Company or materially impair any of the Company’s ability to consummate the TransactionsCompany Subsidiaries;
(iv) that is (A) an indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage or other agreement providing for or securing, as applicable, a principal amount of indebtedness for borrowed money each Contract of the Company and or any of the Company Subsidiaries in excess of $1,500,000 outstanding on the date hereofthat establishes a partnership, other than intercompany agreements, joint venture or (B) a guarantee of indebtedness for borrowed money of any third party with potential liability thereunder in excess of $1,500,000, other than intercompany agreementssimilar arrangement;
(v) that is each Contract for the sale of products or services to any of its assets after Governmental Authority;
(vi) any clearing arrangements or other Contract with any clearing agents or brokers or for correspondent clearing, payment and settlement activities;
(vii) any selling, distribution, dealer, product or marketing Contracts or similar commission-based Contracts with Third Parties, or any Contracts with broker-dealers (or associated persons thereof, as defined in the date hereof in excess of $1,500,000Exchange Act), other than the license of products and sale of services except for any such Contract entered into in the ordinary course of business;
(vi) under which the Company and the Company Subsidiaries are required to make annual capital expenditures after the date hereof in excess of $1,500,000;
(vii) containing a right of first refusal, right of first negotiation or right of first offer in favor of a party other than the Company and the Company Subsidiaries, which right would reasonably be expected to be material to the Company and the Company Subsidiaries taken as a whole;
(viii) other than intercompany agreementsany settlement or conciliation agreement with any Person (including any Governmental Authority) entered into since January 1, (A) for the furnishing of services or the licensing of products (other than pursuant to a Customer License Agreement) under which the Company or any Company Subsidiary has the right to receive consideration in excess of $1,500,000 in any twelve (12) month period after the date hereof, (B) for the receipt of third party services or for the purchase of supplies, products, or other personal property, in each case after the date hereof, which requires payment by the Company or any Company Subsidiary of consideration in excess of $1,000,000 in any twelve (12) month period after the date hereof, or (C) including the licensing or sublicensing of or right to distribute, Company Products through or with resellers, distributors, franchisees or other similar channel partners and under which the Company or any Company Subsidiary has the right to receive consideration in excess of $2,000,000 in any twelve (12) month period2018;
(ix) pursuant any non-competition Contract or other Contract that (A) purports to limit in any material respect either the type of business in which the Company or its Subsidiaries (or, after the Closing Date, BRF or its Subsidiaries) may engage or the manner or locations in which any Company Subsidiary has entered into a partnershipof them may so engage in any business, joint venture (B) would require the disposition of any material assets or other similar arrangement with any Person other than line of business of the Company or a majority owned Company Subsidiaryits Subsidiaries or, which arrangement after the Closing Date, BRF or its Subsidiaries, (C) grants “most favored nation” status that, following the Closing Date, would reasonably be expected apply to be material to BRF or its Subsidiaries, including the Company and its Subsidiaries or (D) prohibits or limits the rights of the Company or any of its Subsidiaries taken as a wholeto make, sell or distribute any products or services, or use, transfer, license, distribute or enforce any of their respective Intellectual Property;
(x) that is a severance agreement, retention agreement or employment agreement or other any Contract with or in relation providing for payments to an employee or former employee, executive officer or director of be made by the Company or any Company Subsidiary providing for (under any circumstances) aggregate compensation in excess of $300,000 from the Company its Subsidiaries, or any Company Subsidiary acceleration of rights or similar matters, upon a change in any twelve (12) month period after the date hereofcontrol;
(xi) that requires material future payments or expenditures relating to cleanup, abatement, remediation or similar actions in connection with material environmental liabilities incurred by the Company or any Company Subsidiary;
(xii) other than intercompany agreements, pursuant to which the Company or any Company Subsidiary (A) is granted or obtains any right to use any material Intellectual Property, except for off-the-shelf Software, for which Intellectual Property the Company or any Company Subsidiary is or is reasonably expected to be obligated to make payments in excess of $200,000 per year, (B) except as set forth in (A) above, is restricted in its right to use or register any Company Owned Intellectual Property, which restriction would be reasonably expected to be material to the Company and the Company Subsidiaries taken as a whole, (C) discloses or otherwise agrees to give access to material and confidential Company Source Code, (other than Contracts (1) entered into with third party developers or consultants related to development of the Company Products at the Company or a Company Subsidiary’s direction, with third parties that receive Company Source Code in order to develop products compatible with any Company Products, or with escrow agents, and (2) Contracts related to the Novell Embedded Systems Technology (NEST)), or (D) has agreed to assign, transfer or sell ownership rights in or with respect to any material Company Owned Intellectual Property (collectively, the “IP Contracts”);
(xiii) is a material Customer License Agreement pursuant to which the Company received over $2,000,000 in revenue in the Company’s fiscal year 2009;
(xiv) that provides for the pending or future acquisition or disposition of any business or any material assets other than in the ordinary course of business (whether by merger, sale of stock or assets or otherwise) and involves consideration in excess of $1,500,000; or
(xv) that is a collective bargaining agreement Contract between the Company or any of its Subsidiaries Subsidiaries, on the one hand, and a labor union any director or officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares of any of their respective Affiliates, on the other hand, excluding any such Contracts related to employment, or employee compensation or benefits; or
(xii) any Contract not otherwise included in clauses (i) through (xi) of Section 3.16(b) that was negotiated involves payments to or by the Company or any of its SubsidiariesSubsidiaries of an amount reasonably expected to exceed $250,000 pursuant to such Contract, excluding any such Contracts related to employment, or employee compensation or benefits. Each such Contract of the type described in clauses (i)-(xvthis Section 3.16(b) is referred to herein as a “Specified Contract”.
(b) ” As of the date hereofof this Agreement, except as would not have a Company Material Adverse Effect, (i) neither the Company nor any of the Company Subsidiaries is (and, has Made Available to the Knowledge of the Company, no other party is) in breach or default under any Specified Contract (and no event has occurred with which notice or lapse of time or both would constitute a default or violation by the Company or any of the Company Subsidiaries thereunder), (ii) each of the Specified Contracts is in full force and effect, and is the valid, binding and enforceable obligation of the Company or a Company Subsidiary (except as such enforceability may be limited by applicable bankruptcy, reorganization, moratorium, liquidation, conservatorship, receivership or similar laws relating to, or affecting generally the enforcement of, creditors’ rights and remedies or by other equitable principles of general application (regardless of whether such enforceability is considered in a proceeding in equity or at law)), and to the Knowledge of the Company, of the other parties thereto, and (iii) neither the Company nor any of the Company Subsidiaries has received any notice of termination with respect to, and, to the Knowledge of the Company, no party has threatened in writing to terminate, any Specified Contract. The Company has made available to Parent BRF true and complete copies of each Specified Contract, including together with all material modifications and amendments thereto. There are no oral Specified Contracts.
(c) Each Specified Contract is in full force and effect and is a valid and binding agreement enforceable against the Company or any of the Company Subsidiaries party thereto and, to the Company’s Knowledge, any other party thereto in accordance with its terms, except as such enforceability may be limited by the Bankruptcy and Equity Exceptions, except where the failure of such Contract to be valid, binding, enforceable or in full force and effect, has not been, and would not reasonably be expected to be, material to the Company or its Subsidiaries, taken as a whole. None of the Company nor any of the Company Subsidiaries party to any Specified Contract is in breach of or default under, or as of the date of this Agreement has provided or received any written notice of any intention to terminate or seek renegotiation of, any Specified Contract, and as of the date hereof and to the Company’s Knowledge, no other party to any Specified Contract is in breach of or default under, or has provided or received any written notice of any intention to terminate or seek renegotiation of, any Specified Contract, except in each case as has not been, and would not reasonably be expected to be, material to the Company and its Subsidiaries, taken as a whole. To the Company’s Knowledge, no event or circumstance has occurred that, with or without notice or lapse of time or both, would (i) constitute a breach of or event of default by the Company, (ii) result in a right of termination, modification or renegotiation for the counterparty or (iii) cause or permit the acceleration of or other changes to any right of the counterparty or obligation of the Company under any Specified Contract, except, in the case of clauses (i), (ii) and (iii), as has not been, and would not reasonably be expected to be, material to the Company and its Subsidiaries, taken as a whole.
Appears in 1 contract
Specified Contracts. (a) Except for this Agreement, the Patent Purchase Agreement and the Contracts filed prior to the date of this Agreement as exhibits to the Company SEC Reports, set forth in Section 4.8 3.8 of the Company Disclosure Schedule sets forth a listSched- ule, as there have been made available to Parent and its representatives true, correct and complete copies of all of the date hereof, of each Contract following contracts to which the Company or any of its Subsidiaries is a party:
party or by which any of them is bound (collectively, the "Specified Contracts"): (i) that would be required to be filed by contracts with any directors and those persons identified in the Company as a material contract pursuant to Item 601(b)(10) last sentence of Regulation S-K promulgated by the SEC;
Section 3.1(a); (ii) that contains any non-competition or other agreement that limits the ability of collective bargain- ing agreements for which the Company or any of its domes- tic Subsidiaries is a party; (iii) pending contracts (A) for the sale of any of the assets of Company Subsidiary to compete in or any line of businessits Subsidiaries, in any geographic area or with any Person, which limitation would reasonably be expected to be material to the Company and the Company Subsidiaries taken as a whole, and other than distribution arrangements for specific geographic areas that Company enters contracts entered into in the ordinary course of business;
(iii) that would, individually business or in the aggregate, prevent, materially delay or materially impair the Company’s ability to consummate the Transactions;
(iv) that is (A) an indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage or other agreement providing for or securing, as applicable, a principal amount of indebtedness for borrowed money of the Company and the Company Subsidiaries in excess of $1,500,000 outstanding on the date hereof, other than intercompany agreements, or (B) a guarantee of indebtedness for borrowed money of any third party with potential liability thereunder in excess of $1,500,000, other than intercompany agreements;
(v) that is for the sale of any of its assets after the date hereof in excess of $1,500,000, other than the license of products and sale of services in the ordinary course of business;
(vi) under which the Company and the Company Subsidiaries are required to make annual capital expenditures after the date hereof in excess of $1,500,000;
(vii) containing a right of first refusal, right of first negotiation or right of first offer in favor of a party other than the Company and the Company Subsidiaries, which right would reasonably be expected to be material to the Company and the Company Subsidiaries taken as a whole;
(viii) other than intercompany agreements, (A) for the furnishing of services or the licensing of products (other than pursuant to a Customer License Agreement) under which the Company or any Company Subsidiary has the right to receive consideration in excess of $1,500,000 in any twelve (12) month period after the date hereof, (B) for the receipt of third party services or for the purchase of supplies, products, or other personal property, in each case after the date hereof, which requires payment by the Company or any Company Subsidiary of consideration in excess of $1,000,000 in any twelve (12) month period after the date hereof, or (C) including the licensing or sublicensing of or right to distribute, Company Products through or with resellers, distributors, franchisees or other similar channel partners and under which the Company or any Company Subsidiary has the right to receive consideration in excess of $2,000,000 in any twelve (12) month period;
(ix) pursuant to which the Company or any Company Subsidiary has entered into a partnership, joint venture or other similar arrangement with any Person other than the Company or a majority owned Company Subsidiary, which arrangement would reasonably be expected to be material to the Company and the Company Subsidiaries taken as a whole;
(x) that is a severance agreement, retention agreement or employment agreement or other Contract with or in relation to an employee or former employee, executive officer or director of the Company or any Company Subsidiary providing for (under any circumstances) aggregate compensation in excess of $300,000 from the Company or any Company Subsidiary in any twelve (12) month period after the date hereof;
(xi) that requires material future payments or expenditures relating to cleanup, abatement, remediation or similar actions in connection with material environmental liabilities incurred by the Company or any Company Subsidiary;
(xii) other than intercompany agreements, pursuant to which the Company or any Company Subsidiary (A) is granted or obtains any right to use any material Intellectual Property, except for off-the-shelf Software, for which Intellectual Property the Company or any Company Subsidiary is or is reasonably expected to be obligated to make payments in excess of $200,000 per year, (B) except as set forth in (A) above, is restricted in its right to use or register any Company Owned Intellectual Property, which restriction would be reasonably expected to be material to the Company and the Company Subsidiaries taken as a whole, (C) discloses or otherwise agrees to give access to material and confidential Company Source Code, (other than Contracts (1) entered into with third party developers or consultants related to development of the Company Products at the Company or a Company Subsidiary’s direction, with third parties that receive Company Source Code in order to develop products compatible with any Company Products, or with escrow agents, and (2) Contracts related to the Novell Embedded Systems Technology (NEST)), or (D) has agreed to assign, transfer or sell ownership rights in or with respect grant to any material Company Owned Intellectual Property (collectively, the “IP Contracts”);
(xiii) is a material Customer License Agreement pursuant to which the Company received over $2,000,000 in revenue in the Company’s fiscal year 2009;
(xiv) that provides for the pending or future acquisition or disposition person of any business or preferential rights to purchase any material assets of its assets, other than in the ordinary course of business busi- ness; (whether by mergeriv) contracts which restrict, sale of stock or assets or otherwise) and involves consideration in excess of $1,500,000; or
(xv) that is a collective bargaining agreement between any material respect, the Company or any of its Subsidiaries from competing in any line of business or with any person in any geographical area; (v) indentures, credit agreements, security agreements, mortgages, guarantees, promissory notes and a labor union that was negotiated by other contracts relating to the borrowing of money involving indebtedness for borrowed money, in each case, in excess of $2,500,000; (vi) contracts with any stockholders of Company beneficially owning 5% or any more of its Subsidiaries. Each such Contract described in clauses (i)-(xv) is referred to herein as a “Specified Contract”.
(b) As of the Company's outstanding capital stock on the date hereof; (vii) acquisition, except as would not have merger, asset purchase or sale agreements with a Company Material Adverse Effectpurchase price in excess of $10,000,000 entered into since July 1, 1995 (iother than agreements for the purchase and sale of materials or products in the ordinary course of business); (viii) neither the Company nor contracts relating to any of the Company Subsidiaries is material joint venture, partnership, strategic alliance or other similar agreement; and (andix) all other agreements, contracts or instruments entered into which, to the Knowledge knowledge of the Company, no other party is) in breach or default under any Specified Contract (and no event has occurred with which notice or lapse of time or both would constitute a default or violation by are material to the Company or any of the Company and its Subsidiaries thereunder), (ii) each taken as a whole. A list of the Specified Contracts is in full force and effect, and is the valid, binding and enforceable obligation set forth on Section 3.8 of the Company or a Company Subsidiary (except as such enforceability may Disclosure Schedule. The provisions of this Section 3.8 shall be limited by applicable bankruptcy, reorganization, moratorium, liquidation, conservatorship, receivership or similar laws relating to, or affecting generally the enforcement of, creditors’ rights and remedies or by other equitable principles of general application (regardless of whether such enforceability is considered in a proceeding in equity or at law)), and to the Knowledge of the Company, of the other parties thereto, and (iii) neither the Company nor any knowledge of the Company Subsidiaries has received any notice of termination with respect to, and, as they relate to the Knowledge of the Company, no party has threatened in writing to terminate, any Specified Contract. The Company has made available to Parent true and complete copies of each Specified Contract, including all material amendments theretoits foreign Subsidiaries.
Appears in 1 contract
Sources: Merger Agreement (Pittway Corp /De/)
Specified Contracts. (a) Except for Each Contract described below in this Agreement, the Patent Purchase Agreement and the Contracts filed prior to the date of this Agreement as exhibits to the Company SEC Reports, Section 4.8 of the Company Disclosure Schedule sets forth a list, as of the date hereof, of each Contract to which the Company or any of its Subsidiaries is a party:
(i) that would be required to be filed by the Company as a material contract pursuant to Item 601(b)(10) of Regulation S-K promulgated by the SEC;
(ii) that contains any non-competition or other agreement that limits the ability of the Company or any Company Subsidiary to compete in any line of business, in any geographic area or with any Person, which limitation would reasonably be expected to be material to the Company and the Company Subsidiaries taken as a whole, and other than distribution arrangements for specific geographic areas that Company enters into in the ordinary course of business;
(iii) that would, individually or in the aggregate, prevent, materially delay or materially impair the Company’s ability to consummate the Transactions;
(iv) that is (A) an indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage or other agreement providing for or securing, as applicable, a principal amount of indebtedness for borrowed money of the Company and the Company Subsidiaries in excess of $1,500,000 outstanding on the date hereof, other than intercompany agreements, or (B) a guarantee of indebtedness for borrowed money of any third party with potential liability thereunder in excess of $1,500,000, other than intercompany agreements;
(v) that is for the sale of any of its assets after the date hereof in excess of $1,500,000, other than the license of products and sale of services in the ordinary course of business;
(vi) under which the Company and the Company Subsidiaries are required to make annual capital expenditures after the date hereof in excess of $1,500,000;
(vii) containing a right of first refusal, right of first negotiation or right of first offer in favor of a party other than the Company and the Company Subsidiaries, which right would reasonably be expected to be material to the Company and the Company Subsidiaries taken as a whole;
(viii) other than intercompany agreements, (A) for the furnishing of services or the licensing of products (other than pursuant to a Customer License Agreement3.17(a) under which the Company or any Company Subsidiary has any current or future rights, responsibilities, obligations or liabilities (in each case, whether contingent or otherwise), or to which any of their respective properties, rights or assets is subject, is referred to herein as a “Specified Contract”:
(i) any partnership, joint venture, strategic alliance or similar Contract (other than Contracts solely between or among the right to receive consideration in excess of $1,500,000 Company and/or wholly owned Company Subsidiaries);
(ii) each Contract not otherwise described in any twelve (12other subsection of this Section 3.17(a) month period after the date hereof, (B) for the receipt of third party services that is reasonably expected to involve future capital or for the purchase of supplies, products, or other personal property, in each case after the date hereof, which requires payment similar expenditures by the Company or any Company Subsidiary of consideration more than $25 million in any twelve (12)-month period following the date hereof;
(iii) each Contract (including with customers and suppliers) that contains representations, covenants, indemnities or other obligations (including “earn-out” or other contingent payment obligations) that would reasonably be expected to result in the receipt or making of future payments in excess of $1,000,000 25 million in any twelve (12) month 12)-month period after following the date hereof, or has resulted in the receipt or making of such payments in the twelve (C12)-month period preceding the date hereof;
(iv) including each Contract relating to outstanding Indebtedness (or commitments for Indebtedness) of the licensing Company or sublicensing any of the Company Subsidiaries in an amount in excess of $50 million other than (A) Contracts solely among the Company and any wholly owned Company Subsidiary, and (B) letters of credit and guarantees of payment, performance and other obligations to vendors, suppliers or right to distributecustomers entered into in the ordinary course of business consistent with past practice;
(v) each Contract between the Company or any Company Subsidiary, on the one hand, and any officer, director or affiliate (other than a wholly owned Company Products through or with resellers, distributors, franchisees or other similar channel partners and under which Subsidiary) of the Company or any Company Subsidiary has or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the right to receive consideration in excess of $2,000,000 in Exchange Act), on the other hand, including any twelve (12) month period;
(ix) Contract pursuant to which the Company or any Company Subsidiary has entered into a partnershipan obligation to indemnify such officer, joint venture director, affiliate or other similar arrangement with any Person other than the Company or a majority owned Company Subsidiary, which arrangement would reasonably be expected to be material to the Company and the Company Subsidiaries taken as a wholefamily member;
(xvi) any Contract (excluding (A) licenses for commercial off-the-shelf computer software that is a severance agreementare generally available on nondiscriminatory pricing terms, retention agreement or employment agreement or other Contract and (B) licenses granted by third parties in the ordinary course of business consistent with or in relation past practice to an employee or former employee, executive officer or director of the Company or any Company Subsidiary providing extent necessary for (under any circumstances) aggregate compensation in excess of $300,000 from the Company or any Company Subsidiary in any twelve (12) month period after the date hereof;
(xi) that requires material future payments or expenditures relating to cleanup, abatement, remediation or similar actions in connection with material environmental liabilities incurred manufacture by the Company or any Company Subsidiary;
(xiiits Subsidiaries of products for such third parties) other than intercompany agreements, pursuant to under which the Company or any Company Subsidiary (A) is granted any license, option or obtains any other right or immunity (including a covenant not to be sued or right to use enforce or prosecute any material Intellectual Property, except for off-the-shelf Software, for which patents) with respect to any Intellectual Property of a third party;
(vii) any Contract (excluding non-exclusive licenses granted to manufacturers of any of the Company Products in the ordinary course of business consistent with past practice to the extent required to accomplish such manufacturing) under which the Company or any Company Subsidiary is has granted to a third party any license, option or is reasonably expected other right or immunity (including a covenant not to be obligated to make payments in excess of $200,000 per year, (B) except as set forth in (A) above, is restricted in its sued or right to use enforce or register prosecute any Company Owned Intellectual Property, which restriction would be reasonably expected to be material to the Company and the Company Subsidiaries taken as a whole, (Cpatents) discloses or otherwise agrees to give access to material and confidential Company Source Code, (other than Contracts (1) entered into with third party developers or consultants related to development of the Company Products at the Company or a Company Subsidiary’s direction, with third parties that receive Company Source Code in order to develop products compatible with any Company Products, or with escrow agents, and (2) Contracts related to the Novell Embedded Systems Technology (NEST)), or (D) has agreed to assign, transfer or sell ownership rights in or with respect to any material Company Owned Intellectual Property (collectively, the “IP Contracts”including any development thereof);
(xiiiviii) is any Contract that (A) contains a material Customer License Agreement pursuant to which right of first refusal, first offer or first negotiation, or (B) contains any exclusivity provisions or provisions restricting or limiting the Company received over $2,000,000 in revenue in the Company’s fiscal year 2009;
(xiv) that provides for the pending right or future acquisition or disposition ability of any business or any material assets other than in the ordinary course of business (whether by merger, sale of stock or assets or otherwise) and involves consideration in excess of $1,500,000; or
(xv) that is a collective bargaining agreement between the Company or any of its Subsidiaries and a labor union that was negotiated by the Company or any of its Subsidiaries. Each such Contract described in clauses (i)-(xv) is referred to herein as a “Specified Contract”.
(b) As of the date hereof, except as would not have a Company Material Adverse Effect, (i) neither the Company nor any of the Company Subsidiaries is (and, to the Knowledge of the Company, no other party is) in breach or default under any Specified Contract (and no event has occurred with which notice or lapse of time or both would constitute a default or violation by the Company or any of the Company Subsidiaries thereunder(or that would restrict Broadcom, Holdco or any Broadcom Subsidiary after the Effective Time) to compete or transact in any business or with any Person or in any geographic area or to supply, sell or distribute any product, service or Intellectual Property;
(ix) any Contract that contains any “most favored nation” or similar terms (including if such terms would apply to Broadcom, Holdco or any Broadcom Subsidiary after the Effective Time);
(x) any Contract that is a settlement, conciliation or similar agreement that (A) restricts the activities or any business of, or imposes non-monetary obligations upon, the Company or any Company Subsidiaries (or would restrict or impose such obligations on Broadcom, Holdco or any Broadcom Subsidiary after the Effective Time), or (iiB) each requires the Company or any of the Company Subsidiaries (or would require Broadcom, Holdco or any Broadcom Subsidiary after the Effective Time) to pay more than $10 million after the date of this Agreement or admit to any wrongdoing;
(xi) with any Governmental Entity that is material to the conduct of the business of the Company or any Company Subsidiary; or
(xii) any Contract not otherwise described in any other subsection of this Section 3.17(a) that would constitute a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to the Company.
(b) Neither the Company nor any Company Subsidiary is in breach of or default under the terms of any Specified Contracts Contract where such breach or default has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. To the knowledge of the Company, no other party to any Specified Contract is in breach of or default under the terms of any Specified Contract where such breach or default has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Except as had not and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Specified Contract is a valid and binding obligation of the Company or the Company Subsidiary that is a party thereto and, to the knowledge of the Company, of each other party thereto, and is in full force and effect, and is the valid, binding and enforceable obligation of the Company or a Company Subsidiary (except as such enforceability may be limited by applicable bankruptcy, reorganization, moratorium, liquidation, conservatorship, receivership or similar laws relating to, or affecting generally the enforcement of, creditors’ rights Bankruptcy and remedies or by other equitable principles of general application (regardless of whether such enforceability is considered in a proceeding in equity or at law)), and to the Knowledge of the Company, of the other parties thereto, and (iii) neither the Company nor any of the Company Subsidiaries has received any notice of termination with respect to, and, to the Knowledge of the Company, no party has threatened in writing to terminate, any Specified Contract. The Company has made available to Parent true and complete copies of each Specified Contract, including all material amendments theretoEquity Exceptions.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Broadcom Cayman L.P.)
Specified Contracts. (a) Except for this Agreement, the Patent Purchase Agreement and the Contracts filed prior to the date of this Agreement as exhibits to the Company SEC Reports, Section 4.8 3.15(a) of the Company Disclosure Schedule sets forth a true, correct and complete list, as of the date hereof, of and the Company has made available true, correct and complete copies of, each Contract (other than Benefit Plans), which is in effect as of the date hereof (or pursuant to which the Company or any of its Subsidiaries has any continuing material obligations thereunder) and under which the Company or any of its Subsidiaries is a partyparty or by which the Company, any of its Subsidiaries or any of their respective properties or assets is bound that:
(i) that would be required procures products or services from a supplier of the Business pursuant to be filed by a contract between such supplier and the Company or a Subsidiary with payments in excess of $10,000 in the twelve (12) month period ending on September 30, 2024 or provides Company products to a customer of the Business as a material contract pursuant to Item 601(b)(10) of Regulation S-K promulgated by the SECdate hereof;
(ii) provides for or governs the formation, creation, operation, management or control of any partnership or joint venture that contains is material to the business of the Company and its Subsidiaries, taken as a whole;
(iii) 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 the Company in excess of $50,000 in the aggregate in respect of such agreement; other than solely among wholly owned Subsidiaries of the Company, relates to indebtedness for borrowed money having an outstanding principal amount in excess of $50,000; or
(iv) involves the settlement of any pending or threatened claim, action or proceeding which (1) requires payment obligations after the date hereof, in excess of $50,000 or (2) imposes any continuing material non-competition monetary obligations on the Company (which obligations shall include any monitoring or material reporting obligations to any other agreement Person or any obligations that limits limit in any material respect the ability of the Company or any Company Subsidiary to compete in any line of business, in any geographic area or with any Person, which limitation would reasonably be expected to be material to the Company and the Company Subsidiaries taken as a whole, and other than distribution arrangements for specific geographic areas that Company enters into in the ordinary course of business;
(iii) that would, individually or in the aggregate, prevent, materially delay or materially impair the Company’s ability to consummate the Transactions;
(iv) that is (A) an indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage or other agreement providing for or securing, as applicable, a principal amount of indebtedness for borrowed money of the Company and the Company Subsidiaries in excess of $1,500,000 outstanding on the date hereof, other than intercompany agreements, or (B) a guarantee of indebtedness for borrowed money of any third party with potential liability thereunder in excess of $1,500,000, other than intercompany agreements;
(v) that is for the sale of any of its assets after the date hereof in excess of $1,500,000, other than the license of products and sale of services in the ordinary course of business;
(vi) under which the Company and the Company Subsidiaries are required to make annual capital expenditures after the date hereof in excess of $1,500,000;
(vii) containing a right of first refusal, right of first negotiation or right of first offer in favor of a party other than the Company and the Company Subsidiaries, which right would reasonably be expected to be material to the Company and the Company Subsidiaries taken as a whole;
(viii) other than intercompany agreements, (A) for the furnishing of services or the licensing of products (other than pursuant to a Customer License Agreement) under which the Company or any Company Subsidiary has the right to receive consideration in excess of $1,500,000 in any twelve (12) month period after the date hereof, (B) for the receipt of third party services or for the purchase of supplies, products, or other personal property, in each case after the date hereof, which requires payment by the Company or any Company Subsidiary of consideration in excess of $1,000,000 in any twelve (12) month period after the date hereof, or (C) including the licensing or sublicensing of or right to distribute, Company Products through or with resellers, distributors, franchisees or other similar channel partners and under which the Company or any Company Subsidiary has the right to receive consideration in excess of $2,000,000 in any twelve (12) month period;
(ix) pursuant to which the Company or any Company Subsidiary has entered into a partnership, joint venture or other similar arrangement with any Person other than the Company or a majority owned Company Subsidiary, which arrangement would reasonably be expected to be material to the Company and the Company Subsidiaries taken as a whole;
(x) that is a severance agreement, retention agreement or employment agreement or other Contract with or in relation to an employee or former employee, executive officer or director of the Company or any Company Subsidiary providing for (under any circumstances) aggregate compensation in excess of $300,000 from the Company or any Company Subsidiary in any twelve (12) month period after the date hereof;
(xi) that requires material future payments or expenditures relating to cleanup, abatement, remediation or similar actions in connection with material environmental liabilities incurred by the Company or any Company Subsidiary;
(xii) other than intercompany agreements, pursuant to which the Company or any Company Subsidiary (A) is granted or obtains any right to use any material Intellectual Property, except for off-the-shelf Software, for which Intellectual Property the Company or any Company Subsidiary is or is reasonably expected to be obligated to make payments in excess of $200,000 per year, (B) except as set forth in (A) above, is restricted in its right to use or register any Company Owned Intellectual Property, which restriction would be reasonably expected to be material to the Company and the Company Subsidiaries taken as a whole, (C) discloses or otherwise agrees to give access to material and confidential Company Source Code, (other than Contracts (1) entered into with third party developers or consultants related to development of the Company Products at the Company or a Company Subsidiary’s direction, with third parties that receive Company Source Code in order to develop products compatible with any Company Products, or with escrow agents, and (2) Contracts related to the Novell Embedded Systems Technology (NEST)), or (D) has agreed to assign, transfer or sell ownership rights in or with respect to any material Company Owned Intellectual Property (collectively, the “IP Contracts”);
(xiii) is a material Customer License Agreement pursuant to which the Company received over $2,000,000 in revenue in the Company’s fiscal year 2009;
(xiv) that provides for the pending or future acquisition or disposition of any business or any material assets other than in the ordinary course of business (whether by merger, sale of stock or assets or otherwise) and involves consideration in excess of $1,500,000; or
(xv) that is a collective bargaining agreement between the Company or any of its Subsidiaries and a labor union that was negotiated by to operate the Company or any of its SubsidiariesBusiness). Each such Contract of the type described in clauses (i)-(xvi) through (iv) above is referred to herein as a “Specified Contract.”.
(b) As Except as set forth in Section 3.15(b) of the date hereof, except as would not have a Company Material Adverse EffectDisclosure Schedule, (i) neither each Specified Contract is valid and binding on the Company nor any or the Subsidiary of the Company Subsidiaries that is (a party thereto and, to the Knowledge of the CompanyBusiness, no each other party is) in breach or default under any Specified Contract (thereto, and no event has occurred with which notice or lapse of time or both would constitute a default or violation by the Company or any of the Company Subsidiaries thereunder), (ii) each of the Specified Contracts is in full force and effect, subject to the Insolvency and Equity Exceptions, (ii) the Company and its Subsidiaries have complied in all material respects with all obligations required to be performed or complied with by them under each Specified Contract, (iii) there is the valid, binding and enforceable obligation of no default under any Specified Contract by the Company or a Company Subsidiary (except as such enforceability may be limited by applicable bankruptcyany of its Subsidiaries, reorganizationor, moratorium, liquidation, conservatorship, receivership or similar laws relating to, or affecting generally the enforcement of, creditors’ rights and remedies or by other equitable principles of general application (regardless of whether such enforceability is considered in a proceeding in equity or at law)), and to the Knowledge of the CompanyBusiness, of the by any other parties party thereto, and (iiiiv) to the Knowledge of the Business, as of the date hereof, neither the Company nor any of the Company its Subsidiaries has received any notice from any third party to any Specified Contract of termination with respect toany default, andbreach, to the Knowledge of the Companytermination, no party has threatened intended non-renewal, cancelation or material reduction in writing to terminate, relationship under any Specified Contract. The Company has made available to Parent true and complete copies of each Specified Contract, including all material amendments thereto.
Appears in 1 contract
Sources: Membership Interest Assignment Agreement (Forian Inc.)