Company Contracts. (a) Except for this Agreement and the contracts filed with the Company Reports, Section 5.15 of the Company Disclosure Letter sets forth a true, complete and correct list, as of the date of this Agreement, and the Company has, prior to the date of this Agreement, made available to Parent true, complete and correct copies (subject to any limitations specified in this Section 5.15(a)), of each Contract to which the Company or any Company Subsidiary is party or by which the Company or any Company Subsidiary is bound: (i) that is filed as an exhibit to the Company’s Annual Report on Form 10-K for the fiscal year ended May 31, 2024, or is otherwise a “material contract” pursuant to Item 601(b)(10) of Regulation S-K promulgated by the SEC; (ii) that (A) limits, restricts or prohibits the Company or any Company Subsidiary (or, after giving effect to the transactions contemplated by this Agreement, would limit, restrict or prohibit Parent or any of its Affiliates) from conducting any material business or doing business with any Person in any geographical area or to compete with any Person or (B) grants exclusivity, “most favored nation,” “take or pay” or similar rights, or that requires or purports to require the Company or any Company Subsidiary to acquire all or a specified portion of its requirements of a material good or service from any Person; (iii) Reserved; (iv) relating to any individual lease or agreement under which the Company or any Company Subsidiary is lessee of, or holds or operates any personal property owned by any other party, for which the aggregate rental payments exceed (or are expected to exceed) $100,000 in any 12-month period; (v) relating to any lease or agreement under which the Company or any Company Subsidiary is lessor of or permits any third party to hold or operate any property, real or personal; (vi) relating to (other than purchase orders entered into in the ordinary course of business) any Contracts with any customers or suppliers of the Company or any Company Subsidiary; (vii) relating to agreements, indentures or other evidence of indebtedness relating to the borrowing of money by the Company or any Company Subsidiary or to mortgaging, pledging or otherwise placing an Encumbrance (other than a Permitted Encumbrance) on any portion of the assets of the Company or any Company Subsidiary; (viii) that is with an executive officer and contains a non-compete provision; (ix) that imposes any material restriction on the Affiliates of the Company or of any Company Subsidiary; (x) relating to the creation, formation, operation, management or control of any material partnerships, joint ventures, limited liability companies, strategic alliances or similar arrangements; (xi) (A) that was entered into after December 31, 2023 and relates to the acquisition, disposition, purchase or sale, directly or indirectly, by merger, sale, lease, purchase, capital contribution or otherwise (whether in one transaction or a series of transactions), by the Company or any Company Subsidiary (or, after the Effective Time, Parent or any of its subsidiaries) of substantially all of the equity interests, material assets or operating business of any Person or material assets or material line of business or (B) is currently in effect and contains a put, call right of first refusal, right of first offer or other similar preferential right pursuant to which the Company or any Company Subsidiary (or, after the Effective Time, Parent or any of its subsidiaries) could be required to acquire, dispose of, lease, purchase or sell, as applicable, substantially all of the equity interests, material assets or operating business of the Company or any current or former Company Subsidiary; (xii) without limiting Section 5.15(a)(xi), that obliges the Company or any Company Subsidiary to make any earn-out payments or other contingent payments (but not indemnification payments) in connection with the acquisition or divestment of a business or Person by the Company or any Company Subsidiary, that have not been paid in full as of the date hereof; (xiii) containing any standstill or similar agreement pursuant to which the Company or any Company Subsidiary has agreed not to acquire assets or securities of another Person where such commitment remains in effect as of the date hereof; (xiv) that (x) obligates the Company or any Company Subsidiary to make a loan or capital contribution to, or investment in excess of $50,000 in any Person other than loans to any Company Subsidiary and advances to employees in the ordinary course of business consistent with past practice or (y) obligates the Company or any Company Subsidiary to provide a guarantee that would reasonably be expected to result in payments in excess of $50,000 other than guarantees by the Company or any Company Subsidiary of another Company Subsidiary’s obligations; (xv) with any third-party service providers for the provision of billing and collection services to the Company or any Company Subsidiary; (xvi) pursuant to which the Company or any Company Subsidiary received during calendar year 2024 payments in excess of $500,000 annually (other than purchase orders entered into in the ordinary course of business and except as otherwise disclosed in Section 5.15 of the Company Disclosure Letter); (xvii) that is for the services of any officer, director, individual employee (except, as it relates to any former employee, only to the extent of ongoing liability), independent contractor or individual service provider that cannot be terminated on 60 or fewer days’ notice without any liability or financial obligation incurred by the Company or any Company Subsidiary; (xviii) that contains any assignment, transfer, grant, license, sublicense, right, consent, waiver, permission or covenant not to assert any claims relating to or under any Intellectual Property (A) by the Company or any Company Subsidiary to a third party or (B) by a third party to the Company or any Company Subsidiary (excluding licenses of commercially available, non-customized, off-the-shelf software available on standard terms for a potential annual or aggregate license fee (whichever is higher) of no more than $50,000 and excluding Personnel IP Contracts); (xix) entered into with any supplier (A) that is a sole source supplier to the Company or any Company Subsidiary or (B) from which the Company or any Company Subsidiary source substantially all of their supply of any material product or service, except in each case where the Company or any Company Subsidiary would likely be able to replace such source of supply with a substitute supply at substantially the same volume and quality, on substantially comparable terms and without material delay; (xx) under which any of the compensation or benefits thereunder, to any Person that is a party thereto, shall be increased, or the vesting of benefits of which shall be accelerated, by the consummation of the Merger or this Agreement or the value of any of the benefits of which shall be calculated on the basis of the Merger or this Agreement, excluding any Multiemployer Plan or any Employee Program; (xxi) that currently is, or at any point in the three-year period ending on the date of this Agreement was, in effect (A) to which any present or former director, officer, employee, stockholder or holder of derivative securities of the Company or any Company Subsidiary, or any member of any such Person’s immediate family, or any entity owned or controlled by any such Person, is a party, excluding any Multiemployer Plan or any Employee Program or other benefit or compensation plan or other plans, programs, policies, commitments or arrangements or (B) pursuant to which the Company or any Company Subsidiary receives any “preferred pricing” or similar benefit that is utilized by the Company or such Company Subsidiary in the ordinary course; (xxii) (A) involving the payment of royalties or other amounts calculated based upon the revenues or income of the Company or any Company Subsidiary or income or revenues related to any product of the Company or any Company Subsidiary that deviate from the Company’s standard form agreements made available to Parent or (B) with the Company’s top 10 licensing partners as measured by revenue during the 12 months prior to the date of this Agreement; (xxiii) in respect of any settlements or coexistence agreements with respect to any pending or threatened action (A) entered into within 12 months prior to the date of this Agreement or (B) with respect to which any unsatisfied amounts or ongoing obligations remain outstanding; (xxiv) that constitutes a Company Related Party Contract; (xxv) with any Governmental Entity or a third party that is a party to a Contract with a Governmental Entity with respect to the subject matter of such underlying Contract; and (xxvi) that commits the Company or any Company Subsidiary to enter into any of the foregoing. Each of the contracts of the type described in this Section 5.15 is referred to in this Agreement as a “Company Contract.” (b) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) each Company Contract is valid, binding and enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles and (ii) each Company Contract is in full force and effect with respect to the Company or the Company Subsidiaries, as applicable, and, to the Knowledge of the Company, with respect to the other parties thereto. Neither the Company nor any Company Subsidiary is and, to the Knowledge of the Company, no other party is, in breach or violation of, or in default under, any Company Contract. To the Knowledge of the Company, no event has occurred that would reasonably be expected to result in a breach of, or a default under, any material Company Contract (in each case, with or without notice or lapse of time or both).
Appears in 1 contract
Sources: Merger Agreement (Unique Logistics International, Inc.)
Company Contracts. (a) Except for this Agreement and the contracts filed with the Company Reports, Section 5.15 3.15(a) of the Company Seller Disclosure Letter Schedule sets forth a true, true and complete and correct list, list of Contracts in effect as of the date of this Agreement, and the Company has, prior to the date of this Agreement, made available to Parent true, complete and correct copies (subject to any limitations specified in this Section 5.15(a)), of each Contract Agreement to which the Company or any Company Subsidiary is a party or by which the Company or any is otherwise expressly bound, in each case which are in the categories listed below (collectively with the Company Subsidiary is boundLeases, the “Company Contracts”); provided, however, that a Contract referenced by more than one description need only be listed once on the Seller Disclosure Schedule:
(i) that is filed as an exhibit to the Company’s Annual Report on Form 10-K for the fiscal year ended May 31, 2024, Any material partnership or is otherwise joint venture Contract with a “material contract” pursuant to Item 601(b)(10) of Regulation S-K promulgated by the SECthird party;
(ii) any Contract containing a covenant not to compete that (A) limits, restricts or prohibits materially impairs the ability of the Company or any Company Subsidiary (or, after giving effect to freely conduct the transactions contemplated by this Agreement, would limit, restrict or prohibit Parent or any of its Affiliates) from conducting any material business or doing business with any Person Business in any geographical area or to compete with any Person or (B) grants exclusivity, “most favored nation,” “take or pay” or similar rights, or that requires or purports to require the Company or any Company Subsidiary to acquire all or a specified portion of its requirements of a material good or service from any Persongeographic area;
(iii) Reservedany Contract evidencing or guaranteeing Company Debt in excess of $100,000;
(iv) relating any operating agreement, management agreement, crewing agreement, contract of affreightment, transportation agreement or financial lease with respect to any individual lease Vessel that, in each case, by its terms requires payments by or agreement under which to the Company or in excess of $250,000 during any Company Subsidiary is lessee of, or holds or operates full year during the term thereof (without giving effect to any personal property owned by any other party, for which the aggregate rental payments exceed (or are expected to exceed) $100,000 in any 12-month period;renewal periods thereunder);
(v) relating to any lease Contract for the purchase or agreement under which the Company or sale of any Company Subsidiary is lessor of or permits any third party to hold or operate any property, real or personal;
(vi) relating to (other than purchase orders entered into in the ordinary course of business) any Contracts with any customers or suppliers of the Company or any Company Subsidiary;
(vii) relating to agreements, indentures or other evidence of indebtedness relating to the borrowing of money by the Company or any Company Subsidiary or to mortgaging, pledging or otherwise placing an Encumbrance (other than a Permitted Encumbrance) on any portion of the assets of the Company or any Company Subsidiary;
(viii) Vessel for consideration that is with an executive officer and contains a non-compete provision;
(ix) that imposes any material restriction on the Affiliates of the Company or of any Company Subsidiary;
(x) relating reasonably expected to the creation, formation, operation, management or control of any material partnerships, joint ventures, limited liability companies, strategic alliances or similar arrangements;
(xi) (A) that was entered into after December 31, 2023 and relates to the acquisition, disposition, purchase or sale, directly or indirectly, by merger, sale, lease, purchase, capital contribution or otherwise (whether in one transaction or a series of transactions), by the Company or any Company Subsidiary (or, after the Effective Time, Parent or any of its subsidiaries) of substantially all of the equity interests, material assets or operating business of any Person or material assets or material line of business or (B) is currently in effect and contains a put, call right of first refusal, right of first offer or other similar preferential right pursuant to which the Company or any Company Subsidiary (or, after the Effective Time, Parent or any of its subsidiaries) could be required to acquire, dispose of, lease, purchase or sell, as applicable, substantially all of the equity interests, material assets or operating business of the Company or any current or former Company Subsidiary;
(xii) without limiting Section 5.15(a)(xi), that obliges the Company or any Company Subsidiary to make any earn-out payments or other contingent payments (but not indemnification payments) in connection with the acquisition or divestment of a business or Person by the Company or any Company Subsidiary, that have not been paid in full as of the date hereof;
(xiii) containing any standstill or similar agreement pursuant to which the Company or any Company Subsidiary has agreed not to acquire assets or securities of another Person where such commitment remains in effect as of the date hereof;
(xiv) that (x) obligates the Company or any Company Subsidiary to make a loan or capital contribution to, or investment in excess of $50,000 in 250,000 for any Person other than loans to any Company Subsidiary and advances to employees in the ordinary course of business consistent with past practice or (y) obligates the Company or any Company Subsidiary to provide a guarantee that would reasonably be expected to result in payments in excess of $50,000 other than guarantees by the Company or any Company Subsidiary of another Company Subsidiary’s obligations;
(xv) with any third-party service providers for the provision of billing and collection services to the Company or any Company Subsidiary;
(xvi) pursuant to which the Company or any Company Subsidiary received during calendar year 2024 payments in excess of $500,000 annually (other than purchase orders entered into in the ordinary course of business and except as otherwise disclosed in Section 5.15 of the Company Disclosure Letter);
(xvii) that is for the services of any officersingle Vessel, director, individual employee (except, as it relates to any former employee, but only to the extent of ongoing liability), independent contractor or individual service provider that cannot be terminated on 60 or fewer days’ notice without any liability or financial obligation incurred by the Company or any Company Subsidiary;
(xviii) that contains any assignment, transfer, grant, license, sublicense, right, consent, waiver, permission or covenant not to assert any claims relating to or under any Intellectual Property (A) by the Company or any Company Subsidiary to a third party or (B) by a third party to the Company or any Company Subsidiary (excluding licenses of commercially available, non-customized, off-the-shelf software available on standard terms for a potential annual or aggregate license fee (whichever is higher) of no more than $50,000 and excluding Personnel IP Contracts);
(xix) entered into with any supplier (A) that is a sole source supplier to the Company or any Company Subsidiary or (B) from which the Company or any Company Subsidiary source substantially all of their supply of any material product or service, except in each case where the Company or any Company Subsidiary would likely be able to replace such source of supply with a substitute supply at substantially the same volume and quality, on substantially comparable terms and without material delay;
(xx) under which any of the compensation or benefits thereunder, to any Person that is a party thereto, shall be increased, or the vesting of benefits of which shall be accelerated, by if the consummation of the Merger or this Agreement or the value of any of the benefits of which shall be calculated on the basis of the Merger or this Agreement, excluding any Multiemployer Plan or any Employee Program;
(xxi) that currently is, or at any point in the three-year period ending on the date of this Agreement was, in effect (A) to which any present or former director, officer, employee, stockholder or holder of derivative securities of the Company or any Company Subsidiary, or any member of any such Person’s immediate family, or any entity owned or controlled by any such Person, is a party, excluding any Multiemployer Plan or any Employee Program or other benefit or compensation plan or other plans, programs, policies, commitments or arrangements or (B) pursuant to which the Company or any Company Subsidiary receives any “preferred pricing” or similar benefit that is utilized by the Company or such Company Subsidiary in the ordinary course;
(xxii) (A) involving the payment of royalties or other amounts calculated based upon the revenues or income of the Company or any Company Subsidiary or income or revenues related to any product of the Company or any Company Subsidiary that deviate from the Company’s standard form agreements made available to Parent or (B) with the Company’s top 10 licensing partners as measured by revenue during the 12 months transactions contemplated thereby has not occurred prior to the date of this Agreement;
(xxiiivi) in respect any Contract with a third party for the charter of any settlements Vessel that requires payments by or coexistence agreements with respect to the Company in excess of $250,000 during any full year during the term thereof (without giving effect to any pending renewal periods thereunder); and
(vii) the TECO Agreement and any Package Contract;
(viii) any other Contract, not otherwise covered by clauses (i) through (vii) of this Section 3.15(a), that requires payments by or threatened action to the Company in excess of $250,000 during any full year during the term thereof (without giving effect to any renewal periods thereunder) and is not terminable on ninety (90) days or less notice by the Company thereof without payment of an amount in excess of $250,000.
(i) Each Company Contract (A) entered into within 12 months prior constitutes a valid and binding obligation of the Company and, to the date Knowledge of this Agreement or Seller, the other parties thereto, and (B) with respect to which any unsatisfied amounts or ongoing obligations remain outstanding;
(xxiv) that constitutes a assuming such Company Related Party Contract;
(xxv) with any Governmental Entity or a third party that Contract is a party valid and binding obligation of and enforceable against the other parties thereto, is enforceable against the Company, except as limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights in general and subject to general principles of equity (regardless of whether such enforceability is considered in a Contract with a Governmental Entity with respect to the subject matter of such underlying Contract; and
proceeding at law or in equity), and (xxviii) that commits the Company is not in breach or default under any Company Subsidiary Contract, except, in each case, where such failure to enter into any of the foregoing. Each of the contracts of the type described in this Section 5.15 is referred to in this Agreement as a “Company Contract.”
(b) Except as be so valid, binding and enforceable, or such breach or default, would not, individually or in the aggregate, not reasonably be expected to have a Company Material Adverse Effect, (i) and the Company has not given written notice of a material breach or default to any other party thereunder. True and complete copies of each Company Contract is valid, binding and enforceable in accordance with have been delivered or made available to Purchaser or its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles and (ii) each Company Contract is in full force and effect with respect to the Company or the Company Subsidiaries, as applicable, and, to the Knowledge of the Company, with respect to the other parties thereto. Neither the Company nor any Company Subsidiary is and, to the Knowledge of the Company, no other party is, in breach or violation of, or in default under, any Company Contract. To the Knowledge of the Company, no event has occurred that would reasonably be expected to result in a breach of, or a default under, any material Company Contract (in each case, with or without notice or lapse of time or both)Representatives.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (United Maritime Group, LLC)
Company Contracts. (a) Except for this Agreement and Set forth on Schedule 4.12 is a list of each of the contracts filed with following Contracts to which the Company Reports, Section 5.15 or any Subsidiary is a party or by which any of the Company Disclosure Letter sets forth a true, complete their respective properties or assets are bound (other than Contracts related to Leased Real Property and correct list, Employee Plans) as of the date of this Agreement, and Agreement (the “Company Contracts”):
(a) Each partnership or joint venture Contract;
(b) Each Contract limiting the right of the Company has, prior or any Subsidiary to the date of this Agreement, made available engage in or compete with any Person in any business or in any geographical area or to Parent true, complete and correct copies hire or retain any Person;
(subject to any limitations specified in this Section 5.15(a)), of each c) Each Contract containing a “most favored nations” or similar provision;
(d) Each employment agreement to which the Company or any Company Subsidiary is a party or by which that (i) has a defined term and is not an “at will” agreement, (ii) requires the Company or any Company Subsidiary is bound:
(i) that is filed as an exhibit to make a payment to the Company’s Annual Report on Form 10-K for the fiscal year ended May 31, 2024, employee upon its termination or is otherwise a “material contract” (iii) pursuant to Item 601(b)(10) of Regulation S-K promulgated by which the SECCompany is currently obligated to make any bonus payment;
(iie) Each Contract providing for capital expenditures with an outstanding amount of unpaid obligations and commitments in excess of $250,000;
(f) Each Contract with respect to Company Debt;
(g) Each Contract (i) that (A) limits, restricts or prohibits the Company or any Company Subsidiary (or, after giving effect to the transactions contemplated by this Agreement, would limit, restrict or prohibit Parent or any of its Affiliates) from conducting any material business or doing business with any Person in any geographical area or to compete with any Person or (B) grants exclusivity, “most favored nation,” “take or pay” or similar rights, or that requires or purports is reasonably expected to require the Company or any Company Subsidiary to acquire all or a specified portion of its requirements of a material good or service from any Person;
(iii) Reserved;
(iv) relating make payments equal to any individual lease or agreement under which the Company or any Company Subsidiary is lessee of, or holds or operates any personal property owned by any other party, for which the aggregate rental payments exceed (or are expected to exceed) more than $100,000 250,000 in any 12-month period;
fiscal year starting on and including the 2015 fiscal year and (vB) relating to any lease or agreement under which the Company or any Company Subsidiary is lessor of or permits any third party to hold or operate any property, real or personal;
not terminable upon less than thirty (vi30) relating to (other than purchase orders entered into in the ordinary course of business) any Contracts with any customers or suppliers of the Company or any Company Subsidiary;
(vii) relating to agreements, indentures or other evidence of indebtedness relating to the borrowing of money days prior written notice by the Company or any Company Subsidiary or to mortgagingSubsidiary, pledging or otherwise placing an Encumbrance (other than a Permitted Encumbrance) on any portion of the assets of the Company or any Company Subsidiary;
(viii) that is with an executive officer and contains a non-compete provision;
(ix) that imposes any material restriction on the Affiliates of the Company or of any Company Subsidiary;
(x) relating to the creation, formation, operation, management or control of any material partnerships, joint ventures, limited liability companies, strategic alliances or similar arrangements;
(xi) (A) that was entered into after December 31, 2023 and relates to the acquisition, disposition, purchase or sale, directly or indirectly, by merger, sale, lease, purchase, capital contribution or otherwise (whether in one transaction or a series of transactions), by the Company or any Company Subsidiary (or, after the Effective Time, Parent or any of its subsidiaries) of substantially all of the equity interests, material assets or operating business of any Person or material assets or material line of business as applicable or (B) is currently in effect and contains a put, call right of first refusal, right of first offer or other similar preferential right pursuant to which the Company or any Company Subsidiary (or, after the Effective Time, Parent or any of its subsidiaries) could be required to acquire, dispose of, lease, purchase or sell, as applicable, substantially all of the equity interests, material assets or operating business of the Company or any current or former Company Subsidiary;
(xii) without limiting Section 5.15(a)(xi), that obliges the Company or any Company Subsidiary to make any earn-out payments or other contingent payments (but not indemnification payments) in connection with the acquisition or divestment of a business or Person by the Company or any Company Subsidiary, that have not been paid in full as of the date hereof;
(xiii) containing any standstill or similar agreement pursuant to which the Company or any Company Subsidiary has agreed not to acquire assets or securities of another Person where such commitment remains in effect as of the date hereof;
(xiv) that (x) obligates the Company or any Company Subsidiary to make a loan or capital contribution to, or investment in excess of $50,000 in any Person other than loans to any Company Subsidiary and advances to employees in the ordinary course of business consistent with past practice or (y) obligates the Company or any Company Subsidiary to provide a guarantee that would reasonably be expected to result in payments in excess of $50,000 other than guarantees by the Company or any Company Subsidiary of another Company Subsidiary’s obligations;
(xv) with any third-party service providers for the provision of billing and collection services to the Company or any Company Subsidiary;
(xviii) pursuant to which the Company or any Company Subsidiary received during calendar is reasonably expected to receive payments equal to more than $250,000 in any fiscal year 2024 payments in excess of $500,000 annually (other than purchase orders entered into starting on and including the 2015 fiscal year; provided, however, that in the ordinary course case of business each of clauses (i) and except as otherwise disclosed in Section 5.15 of (ii), the Company Disclosure Letter)makes no representation or warranty as to any amounts to be actually paid or received under such Contracts;
(xviih) that is for the services of any officer, director, individual employee (except, as it relates to any former employee, only to the extent of ongoing liability), independent contractor or individual service provider that cannot be terminated on 60 or fewer days’ notice without any liability or financial obligation incurred by the Each Company or any Company Subsidiary;
(xviii) that contains any assignment, transfer, grant, license, sublicense, right, consent, waiver, permission or covenant not to assert any claims relating to or under any Intellectual Property (A) by the Company or any Company Subsidiary to a third party or (B) by a third party to the Company or any Company Subsidiary (excluding licenses of commercially available, non-customized, off-the-shelf software available on standard terms for a potential annual or aggregate license fee (whichever is higher) of no more than $50,000 and excluding Personnel IP Contracts);
(xix) entered into with any supplier (A) that is a sole source supplier to the Company or any Company Subsidiary or (B) from which the Company or any Company Subsidiary source substantially all of their supply of any material product or service, except in each case where the Company or any Company Subsidiary would likely be able to replace such source of supply with a substitute supply at substantially the same volume and quality, on substantially comparable terms and without material delay;
(xx) under which any of the compensation or benefits thereunder, to any Person that is a party thereto, shall be increased, or the vesting of benefits of which shall be accelerated, by the consummation of the Merger or this Agreement or the value of any of the benefits of which shall be calculated on the basis of the Merger or this Agreement, excluding any Multiemployer Plan or any Employee Program;
(xxi) that currently is, or at any point in the three-year period ending on the date of this Agreement was, in effect (A) Contract to which any present or former director, officer, employee, stockholder or holder of derivative securities Affiliate of the Company or any Subsidiary is a party or beneficiary and that involve more than $50,000, except for the Company’s LTIP, Options and Employee Plans;
(i) Each Company SubsidiaryContract constituting, incorporating, or relating to any member rebate, warranty, indemnity, or similar obligation, except for rebates, warranties, indemnities or similar obligations set forth in Contracts made available by the Company to Buyer;
(j) Each Company Contract which provides for indemnification of any such Person’s immediate familyofficer, director or employee;
(k) Each Company Contract relating to any currency, interest rate, or other hedging activity; and
(l) Each Company Contract to which any entity owned or controlled by any such Person, Governmental Authority is a party, excluding any Multiemployer Plan or any Employee Program or other benefit or compensation plan or other plans, programs, policies, commitments or arrangements or (B) pursuant to which the Company or any Company Subsidiary receives any “preferred pricing” or similar benefit that is utilized by the Company or such Company Subsidiary in the ordinary course;
(xxii) (A) involving the payment of royalties or other amounts calculated based upon the revenues or income of the Company or any Company Subsidiary or income or revenues related to any product of the Company or any Company Subsidiary that deviate from the Company’s standard form agreements made available to Parent or (B) with the Company’s top 10 licensing partners as measured by revenue during the 12 months prior to the date of this Agreement;
(xxiii) in respect of any settlements or coexistence agreements with respect to any pending or threatened action (A) entered into within 12 months prior to the date of this Agreement or (B) with respect to which any unsatisfied amounts or ongoing obligations remain outstanding;
(xxiv) that constitutes a Company Related Party Contract;
(xxv) with any Governmental Entity or a third party that is a party to a Contract with a Governmental Entity with respect to the subject matter of such underlying Contract; and
(xxvi) that commits the Company or any Company Subsidiary to enter into any of the foregoing. Each of the contracts of the type described in this Section 5.15 is referred to in this Agreement as a “Company Contract.”
(b) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) each Company Contract is valid, binding and enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles and (ii) each Company Contract Contracts is in full force and effect with respect to and is a legal, valid and binding agreement of the Company or the Company Subsidiariesa Subsidiary, as applicable, andsubject only to the General Enforceability Exceptions, and there is no default or breach by the Company or a Subsidiary, as applicable, or, to the Knowledge of the Company’s Knowledge, with respect to the any other parties thereto. Neither the Company nor any Company Subsidiary is and, to the Knowledge of the Company, no other party isparty, in breach the timely performance of any obligation to be performed or violation of, paid thereunder or in default under, any Company Contractother material provision thereof. To the Knowledge of the Company’s Knowledge, no event has occurred occurred, and no circumstance or condition exists, that would reasonably be expected to result in a breach of, or a default under, any material Company Contract (in each case, with or without notice or lapse of time time) would reasonably be expected to (i) result in a material violation or bothbreach of any provision of any Company Contract, (ii) give any Person the right to declare a default or exercise any remedy under any Company Contract, (iii) give any person the right to receive or require a rebate, chargeback, penalty or change in delivery schedule under any Company Contract, (iv) give any Person the right to accelerate the maturity or performance of any Company Contract, (v) result in the disclosure, release, or delivery of any Company source code, or (vi) give any Person the right to cancel, terminate or modify any Company Contract, except for such cancellations, terminations or modifications that are made in accordance with the terms of such Company Contract and that do not result from a violation or breach thereof by the Company. The Company has made available to Buyer a copy of each Company Contract (including all amendments thereto which remain in force and effect).
Appears in 1 contract
Sources: Merger Agreement (Dts, Inc.)
Company Contracts. (a) Except for this Agreement and the contracts filed with the Company Reports, Section 5.15 2.20(a) of the Company Disclosure Letter sets forth Schedule contains a truecomplete list of all Contracts to which the Company or any Company Subsidiary is a party or by which the Company or such Company Subsidiary is bound that fall within the following categories (collectively, complete and correct listthe “Company Contracts”), as organized in subsections corresponding to the subsections of the date Section 2.20(a) of this Agreement:
(i) any Contract granting exclusive distributor, and marketing, advertising, manufacturer’s representative or other exclusive rights, or otherwise contemplating an exclusive relationship between the Company hasor any Company Subsidiary and any other Person;
(ii) any continuing Contract for the purchase of materials, prior supplies, equipment or services involving in the case of any such Contract that provides for payments in excess of or reasonably expected to exceed Twenty-Five Thousand Dollars ($25,000) in any 12-month period;
(iii) any Contract relating to the date acquisition by the Company of this Agreementany tangible assets of a substantial nature, made available operating business or capital stock of any other Person, or the making of any other investment in any other Person;
(iv) any Contract with any Significant Customer, Significant Supplier or Significant Publisher, provided that such Contract provides for payments in excess of or reasonably expected to Parent trueexceed Twenty-Five Thousand Dollars ($25,000);
(v) any Contract disclosed (or required to be disclosed) as a Government Contract in Section 2.13(g) of the Company Disclosure Schedule;
(vi) any trust indenture, complete and correct copies mortgage, promissory note, loan agreement or other Contract 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;
(subject vii) any Contract for capital expenditures other than purchase orders for inventory, supplies or equipment in the ordinary course of business consistent with past practice;
(viii) any Contract purporting to impose confidentiality or non-disclosure obligations on the Company or any Company Subsidiary other than those entered into in the ordinary course of business consistent with past practice;
(ix) any Contract involving the purchase, sale, disposition, lease, license, sublease, use or occupancy of real property;
(x) any Contract that would be required to be disclosed in Section 2.23 of the Company Disclosure Schedule;
(xi) any agreement of guarantee, assumption or endorsement, or any similar Contract with respect to the obligations, liabilities (whether accrued, absolute, contingent or otherwise) or Indebtedness of any other Person;
(xii) any Contract (excluding licenses for Shrink-Wrap Code or Open Source Software) pursuant to which the Company or any Company Subsidiary has licensed or otherwise received rights under or with respect to any limitations specified Intellectual Property or Technology owned by a third party, including covenants not to s▇▇, non-assertion provisions or releases or immunities from suit that relate to Intellectual Property (“Inbound Licenses”);
(xiii) any Contract (excluding non-exclusive licenses of the Company Products to customers that do not materially differ in this Section 5.15(asubstance from the Company’s standard form of outbound license agreement, copies of which have been provided to Parent) under which the Company or any Company Subsidiary has granted, licensed, disclosed or provided any Company-Owned Intellectual Property to third parties, including any Contracts containing covenants not to s▇▇, non-assertion provisions, or releases or immunities from suit that relate to Company-Owned Intellectual Property or, in each case, the option to do any of the foregoing (“Outbound Licenses”);
(xiv) any Contract relating to the acquisition, transfer, development, manufacturing, distribution or sharing of any Technology (including Company Products) or Intellectual Property (including any joint development agreement, technical collaboration agreement or similar agreement);
(xv) any strategic alliance, of each joint development, joint marketing, joint venture, partnership or similar Contracts;
(xvi) any Contract containing any exclusive licensing obligations or “most favored nation” terms or minimum purchase obligations;
(xvii) any Contract to which the Company or any Company Subsidiary is a party containing any covenant limiting (or by which purporting to limit) in any respect the Company or any Company Subsidiary is bound:
(i) that is filed as an exhibit to the Company’s Annual Report on Form 10-K for the fiscal year ended May 31, 2024, or is otherwise a “material contract” pursuant to Item 601(b)(10) right of Regulation S-K promulgated by the SEC;
(ii) that (A) limits, restricts or prohibits the Company or any Company Subsidiary (orv) to engage in any line of business, after giving effect (w) to the transactions contemplated by this Agreementdevelop, would limitmarket or distribute products or services, restrict or prohibit Parent or any of its Affiliates(x) from conducting any material business or doing business to compete with any Person in any geographical area or to compete with any Person or (B) grants exclusivity, “most favored nation,” “take or pay” or similar rights, or that requires or purports to require the Company or any Company Subsidiary to acquire all or a specified portion of its requirements of a material good or service from any Person;
(iii) Reserved;
(iv) relating to any individual lease or agreement under which the Company or any Company Subsidiary is lessee of, or holds or operates any personal property owned by any other party, for which the aggregate rental payments exceed (or are expected to exceed) $100,000 in any 12-month period;
(v) relating to any lease or agreement under which the Company or any Company Subsidiary is lessor of or permits any third party to hold or operate any property, real or personal;
(vi) relating to (other than purchase orders entered into in the ordinary course of business) any Contracts with any customers or suppliers of the Company or any Company Subsidiary;
(vii) relating to agreements, indentures or other evidence of indebtedness relating to the borrowing of money by the Company or any Company Subsidiary or to mortgaging, pledging or otherwise placing an Encumbrance (other than a Permitted Encumbrance) on any portion of the assets of the Company or any Company Subsidiary;
(viii) that is with an executive officer and contains a non-compete provision;
(ix) that imposes any material restriction on the Affiliates of the Company or of any Company Subsidiary;
(x) relating to the creation, formation, operation, management or control of any material partnerships, joint ventures, limited liability companies, strategic alliances or similar arrangements;
(xi) (A) that was entered into after December 31, 2023 and relates to the acquisition, disposition, purchase or sale, directly or indirectly, by merger, sale, lease, purchase, capital contribution or otherwise (whether in one transaction or a series of transactions), by the Company or any Company Subsidiary (or, after the Effective Time, Parent or any of its subsidiaries) of substantially all of the equity interests, material assets or operating business of any Person or material assets or material line of business or (B) is currently in effect and contains a putany area or territory, call right of first refusal, right of first offer or other similar preferential right pursuant granting any exclusive distribution rights with respect to which the Company or any Company Subsidiary Product, (ory) to recruit, after the Effective Timesolicit, Parent or any of its subsidiarieshire employees or independent contractors who are or were employed or engaged by another Person, or (z) could that would be required to acquire, dispose of, lease, purchase be disclosed in accordance with Section 2.19(b) or sell, as applicable, substantially all that otherwise limits the ability of Parent and the equity interests, material assets or operating Surviving Corporation from and after the Closing to operate the business of the Company or any current or former Company Subsidiary;
(xii) without limiting Section 5.15(a)(xi), that obliges and the Company or any Company Subsidiary Subsidiaries as currently conducted and as currently proposed to make any earn-out payments or other contingent payments (but not indemnification payments) in connection with the acquisition or divestment of a business or Person by the Company or any Company Subsidiary, that have not been paid in full as of the date hereof;
(xiii) containing any standstill or similar agreement pursuant to which the Company or any Company Subsidiary has agreed not to acquire assets or securities of another Person where such commitment remains in effect as of the date hereof;
(xiv) that (x) obligates the Company or any Company Subsidiary to make a loan or capital contribution to, or investment in excess of $50,000 in any Person other than loans to any Company Subsidiary and advances to employees in the ordinary course of business consistent with past practice or (y) obligates the Company or any Company Subsidiary to provide a guarantee that would reasonably be expected to result in payments in excess of $50,000 other than guarantees by the Company or any Company Subsidiary of another Company Subsidiary’s obligations;
(xv) with any third-party service providers for the provision of billing and collection services to the Company or any Company Subsidiary;
(xvi) pursuant to which the Company or any Company Subsidiary received during calendar year 2024 payments in excess of $500,000 annually (other than purchase orders entered into in the ordinary course of business and except as otherwise disclosed in Section 5.15 of the Company Disclosure Letter);
(xvii) that is for the services of any officer, director, individual employee (except, as it relates to any former employee, only to the extent of ongoing liability), independent contractor or individual service provider that cannot be terminated on 60 or fewer days’ notice without any liability or financial obligation incurred by the Company or any Company Subsidiaryconducted;
(xviii) that contains any assignment, transfer, grant, license, sublicense, right, consent, waiver, permission collective bargaining agreement or covenant not to assert Contract with any claims relating to or under any Intellectual Property (A) by the Company or any Company Subsidiary to a third party or (B) by a third party to the Company or any Company Subsidiary (excluding licenses of commercially available, non-customized, off-the-shelf software available on standard terms for a potential annual or aggregate license fee (whichever is higher) of no more than $50,000 and excluding Personnel IP Contracts);Labor Organization; or
(xix) entered into any employment agreement, severance agreement or change in control agreement or Contract with any supplier (A) that is a sole source supplier to the Company or any Company Subsidiary or (B) from which the Company or any Company Subsidiary source substantially all of their supply of any material product or service, except in each case where the Company or any Company Subsidiary would likely be able to replace such source of supply with a substitute supply at substantially the same volume and quality, on substantially comparable terms and without material delay;
(xx) under which any of the compensation or benefits thereunder, to any Person that is a party thereto, shall be increased, or the vesting of benefits of which shall be accelerated, by the consummation of the Merger or this Agreement or the value of any of the benefits of which shall be calculated on the basis of the Merger or this Agreement, excluding any Multiemployer Plan or any Employee Program;
(xxi) that currently is, or at any point in the three-year period ending on the date of this Agreement was, in effect (A) to which any present current or former director, officer, employee, stockholder employee or holder of derivative securities consultant of the Company or any Company Subsidiary, or any member of any such Person’s immediate family, or any entity owned or controlled other than those that are terminable at-will by any such Person, is a party, excluding any Multiemployer Plan or any Employee Program or other benefit or compensation plan or other plans, programs, policies, commitments or arrangements or (B) pursuant to which the Company or any Company Subsidiary receives any “preferred pricing” on no more than thirty (30) days’ notice, or similar benefit that is utilized with respect to employees employed outside the United States on no more than the minimum notice period required by the Company law, without liability or financial obligation.
(b) True and complete copies of all such Company Subsidiary in the ordinary course;
(xxii) (A) involving the payment Contracts or, if not reduced to writing, reasonably complete and accurate written descriptions of royalties or other amounts calculated based upon the revenues or income which, together with all amendments and supplements thereto and all waivers of the Company or any Company Subsidiary or income or revenues related to any product of the Company or any Company Subsidiary that deviate from the Company’s standard form agreements terms thereof, have been made available to Parent or (B) with the Company’s top 10 licensing partners as measured by revenue during the 12 months prior to the date execution of this Agreement;.
(xxiiic) in respect of any settlements or coexistence agreements with respect to any pending or threatened action (A) entered into within 12 months prior to the date of this Agreement or (B) with respect to which any unsatisfied amounts or ongoing obligations remain outstanding;
(xxiv) that constitutes a Company Related Party Contract;
(xxv) with any Governmental Entity or a third party that is a party to a Contract with a Governmental Entity with respect to the subject matter of such underlying Contract; and
(xxvi) that commits the Company or any Company Subsidiary to enter into any of the foregoing. Each of the contracts of the type described in this Section 5.15 is referred to in this Agreement as a “Company Contract.”
(b) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) each Company Contract is valid, binding and enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles and (ii) each Company Contract is in full force and effect and constitutes a legal, valid and binding agreement, enforceable in accordance with respect to its terms against the Company or the any Company SubsidiariesSubsidiary, except as applicablesuch enforceability may be limited by bankruptcy, andinsolvency, reorganization, moratorium and similar laws affecting creditors’ rights generally and by general equitably principles, and to the Knowledge knowledge of the Company, with respect to the each other parties party thereto. Neither ; neither the Company nor any Company Subsidiary is andis, nor has it received any written claim or notice that it is, and to the Knowledge knowledge of the Company, no other party to such Company Contract is, or has received any written claim or notice that it is, in violation or breach of or violation of, or in default under, under any Company Contract. To the Knowledge of the Company, no event has occurred that would reasonably be expected to result in a breach of, or a default under, any material such Company Contract (in each case, or with or without notice or lapse of time or both, would be in violation or breach of or default under any such Company Contract). The Company and the Company Subsidiaries have fulfilled all material obligations required to have been performed by the Company and the Company Subsidiaries pursuant to each Company Contract.
Appears in 1 contract
Sources: Merger Agreement (Criteo S.A.)
Company Contracts. (a) Except for this Agreement and the contracts filed with the Company Reports, Section 5.15 of the Company Disclosure Letter Schedule 4.13 sets forth a true, correct and complete and correct list, as list of each of the date of this Agreement, and the Company has, prior to the date of this Agreement, made available to Parent true, complete and correct copies (subject to any limitations specified in this Section 5.15(a)), of each Contract following contracts to which the Company or any Company Subsidiary of its Subsidiaries is a party or by which it or any of its assets or properties is bound as of the date hereof (the “Company Contracts”):
(a) any shipyard contract, drilling rig construction or conversion contract with respect to which a drilling vessel has not been delivered or paid for or any contract for the purchase and/or installation of a material system or component of such drilling vessel (each such contract, a “Construction Contract”) and any related purchase order for an amount greater than $2,000,000;
(b) any contract pursuant to which the Company or any Subsidiary provides drilling services or a Vessel (each such contract, a “Drilling Contract”) to a party other than the Company Subsidiary is bound:or any of its Subsidiaries;
(c) any agreement for the acquisition by any of the Company and its Subsidiaries or provision to any of the Company and its Subsidiaries of services, supplies, equipment, inventory, fixtures or other property or assets involving more than $1,000,000 in the aggregate, but excluding any such agreement relating to the construction of Bully 1 or Bully 2;
(d) any bond, debenture, note, loan, credit or loan agreement or loan commitment, mortgage, indenture or other contract, in each case, between the Company or any of its Subsidiaries and a party other than the Company or any of its Subsidiaries, relating to the borrowing of money in excess of $500,000, other than any such document relating to indebtedness that will be repaid or transferred to the Company prior to Closing, including, for avoidance of doubt, indebtedness relating to certain of the Converting Interests which will be transferred to the Company prior to Closing;
(e) any contract or agreement between the Company (or any of its Subsidiaries) and any of its directors or Affiliates (other than the Company and its Subsidiaries), the Shareholders or any of their Affiliates (other than the Company and its Subsidiaries), other than those relating to the issuance of the Converting Interests (collectively, the “Related Party Agreements”);
(f) any contract or agreement providing for the Company or any of its Subsidiaries to grant, issue or vest stock, restricted stock, options or similar rights to any Person, other than those relating to any equity interests in the Company and Subsidiaries held by Closing Date Principal Shareholders which will be redeemed prior to Closing, including, for avoidance of doubt, certain of the Converting Interests;
(g) any contract or agreement which limits or restricts the Company or any of its Subsidiaries from engaging in any material respect in any business in any jurisdiction or geographic location;
(h) any contract or agreement granting any Person a Lien on all or any part of any assets or properties or equity of the Company or any of its Subsidiaries and, in the case of any such contract granting a Lien on any equity of the Company or any of its Subsidiaries, whether any certificated securities representing such equity are in the possession of the secured party thereunder;
(i) that is filed as any contract or agreement granting to any Person an exhibit option or a first refusal, first-offer or similar preferential right to the Company’s Annual Report on Form 10-K for the fiscal year ended May 31, 2024, purchase or is otherwise a “acquire any material contract” pursuant to Item 601(b)(10) assets of Regulation S-K promulgated by the SEC;
(ii) that (A) limits, restricts or prohibits the Company or any Company Subsidiary (orof its Subsidiaries, after giving effect other than any such contract or agreement relating to the transactions contemplated by Converting Interests;
(j) any contract or agreement entered into within five years prior to the execution of this AgreementAgreement with regard to a merger, would limitpurchase of equity or purchase of assets relating to the purchase of another business (which, restrict for the avoidance of doubt, shall not be interpreted to include the refurbishment of any Vessel) where the purchase price exceeds $5,000,000 under such contract or prohibit Parent agreement;
(k) any contract or agreement entered into within five years prior to the execution of this Agreement for the sale of any material assets of the Company or any of its Affiliates) from conducting any material business or doing business with any Person in any geographical area or to compete with any Person or (B) grants exclusivity, “most favored nation,” “take or pay” or similar rights, or that requires or purports to require the Company or any Company Subsidiary to acquire all or a specified portion of its requirements of a material good or service from any PersonSubsidiaries;
(iiil) Reservedany contract or agreement with any agent (including marketing, commission, day rate and customs agents), employee or representative (excluding any legal, accounting or financial advisors);
(ivm) relating to any individual lease joint venture, cost sharing or agreement under which the Company partnership contract or any Company Subsidiary is lessee of, or holds or operates any personal property owned by any other party, for which the aggregate rental payments exceed (or are expected to exceed) $100,000 in any 12-month period;agreement;
(vn) relating any guaranty or suretyship or contribution agreements, performance bonds or agreements the primary purpose of which is to any lease provide indemnification (but excluding equipment free placement agreements, rig or agreement under which the Company or any Company Subsidiary is lessor of or permits any third party to hold or operate any property, real or personal;
(vi) relating to (other than purchase orders shipyard access agreements and similar operational agreements entered into in the ordinary course of business);
(o) any Contracts contract to purchase or sell real property;
(p) any collective bargaining agreement or other agreement with any customers labor organization, union or suppliers of association;
(q) any contract, agreement or commitment requiring the Company or any Company Subsidiary;
(vii) relating of its Subsidiaries to agreements, indentures or other evidence make a payment as a result of indebtedness relating to the borrowing consummation of money the transactions contemplated by the Company or any Company Subsidiary or to mortgaging, pledging or otherwise placing an Encumbrance (this Agreement other than a Permitted Encumbranceany agreement or engagement letters entered into with the Company’s legal, accounting and financial advisors specified in clause (i) on any portion of the assets definition of Company Transaction Costs in connection with the transactions contemplated by this Agreement and that will be fully satisfied upon payment of the Company or any Company Subsidiary;
Transaction Costs specified on Schedule 2.3(b)(vi) (viii) that is with an executive officer and contains a non-compete provisionas such schedule may be updated as of Closing);
(ixr) that imposes any material restriction on the Affiliates of the Company ISDA Master Agreement or of any Company Subsidiary;other contract or agreement related to derivatives or hedging arrangements; and
(xs) relating to the creationall other contracts, formation, operation, management or control of any material partnerships, joint ventures, limited liability companies, strategic alliances or similar arrangements;
(xi) (A) that was entered into after December 31, 2023 agreements and relates to the acquisition, disposition, purchase or sale, directly or indirectly, by merger, sale, lease, purchase, capital contribution or otherwise (whether in one transaction or a series of transactions), by the Company or any Company Subsidiary (or, after the Effective Time, Parent or any of its subsidiaries) of substantially all of the equity interests, material assets or operating business of any Person or material assets or material line of business or (B) is currently in effect and contains a put, call right of first refusal, right of first offer or other similar preferential right pursuant commitments to which the Company or any of its Subsidiaries is a party or by which its properties or assets are bound that require the Company Subsidiary (or, after the Effective Time, Parent or any of its subsidiariesSubsidiaries to pay more than $1,000,000 in any consecutive 12-month period and which are not otherwise described in any of subsections (a) could be required through (r) above other than any such other contracts, agreements and commitments which are terminable by the Company or any of its Subsidiaries without penalty on notice of not more than sixty (60) calendar days. The Company has Made Available to acquireParent true, dispose ofcorrect and complete copies of all Company Contracts set forth on Schedule 4.13, leaseprovided that the foregoing shall not require the Company or any of its Subsidiaries (a) to permit any inspection, purchase or sellto disclose any information, as applicable, substantially all that in the reasonable judgment of the equity interests, material assets Company would result in the disclosure of any trade secret of a third party or operating business violate any Applicable Laws (including antitrust laws of the United States) or any of its obligations with respect to confidentiality or (b) to disclose any privileged information of the Company or any current or former Company Subsidiary;
(xii) without limiting Section 5.15(a)(xi)of its Subsidiaries in a manner that is reasonably expected to result in the loss of such privilege; provided further, that obliges a description of any Company Contract not Made Available based on (a) or (b) above and the reason for not Making Available such Company Contract shall be set forth on Schedule 4.13. Each such Company Contract is a legal, valid, binding agreement of the Company or its Subsidiaries, as applicable, enforceable against the Company or its Subsidiaries, as applicable, in accordance with their respective terms, subject to the Enforceability Exceptions, and no defenses, off-sets or counterclaims have been asserted in writing, or to the knowledge of the Company otherwise asserted, nor has the Company or any Company Subsidiary to make of its Subsidiaries waived any earn-out payments or other contingent payments (but not indemnification payments) in connection with the acquisition or divestment of a business or Person material rights thereunder. Except as set forth on Schedule 4.13, there exists no default by the Company or any Company Subsidiaryof its Subsidiaries, that have not been paid in full as nor has any event occurred which with the passage of the date hereof;
(xiii) containing any standstill time or similar agreement pursuant to which the Company or any Company Subsidiary has agreed not to acquire assets or securities giving of another Person where such commitment remains in effect as of the date hereof;
(xiv) that (x) obligates the Company or any Company Subsidiary to make notice would constitute a loan or capital contribution to, or investment in excess of $50,000 in any Person other than loans to any Company Subsidiary and advances to employees in the ordinary course of business consistent with past practice or (y) obligates the Company or any Company Subsidiary to provide a guarantee that would reasonably be expected to result in payments in excess of $50,000 other than guarantees default by the Company or any Company Subsidiary of another Company Subsidiary’s obligations;
(xv) with any third-party service providers for the provision of billing and collection services to the Company or its Subsidiaries under any Company Subsidiary;
(xvi) pursuant to which the Company or any Company Subsidiary received during calendar year 2024 payments in excess of $500,000 annually (other than purchase orders entered into in the ordinary course of business and except Credit Facility. Except as otherwise disclosed in Section 5.15 of the Company Disclosure Letter);
(xvii) that is for the services of any officerset forth on Schedule 4.13, director, individual employee (except, as it relates to any former employee, only to the extent of ongoing liability), independent contractor or individual service provider that cannot be terminated on 60 or fewer days’ notice without any liability or financial obligation incurred there exists no default by the Company or any Company Subsidiary;
(xviii) that contains of its Subsidiaries, nor has any assignment, transfer, grant, license, sublicense, right, consent, waiver, permission event occurred which with the passage of time or covenant not to assert any claims relating to or under any Intellectual Property (A) giving of notice would constitute a default by the Company or any Company Subsidiary to a third party or (B) by a third party to the Company or of its Subsidiaries under any Company Subsidiary Contract (excluding licenses of commercially availableother than a Company Credit Facility), non-customized, off-the-shelf software available on standard terms for a potential annual or aggregate license fee (whichever is higher) of no more than $50,000 and excluding Personnel IP Contracts);
(xix) entered into with any supplier (A) that is a sole source supplier to the Company or any Company Subsidiary or (B) from which the Company or any Company Subsidiary source substantially all of their supply of any material product or service, except in each case where the Company or any Company Subsidiary would likely be able to replace such source of supply with a substitute supply at substantially the same volume and quality, on substantially comparable terms and without material delay;
(xx) under which any of the compensation or benefits thereunder, to any Person that is a party thereto, shall be increased, or the vesting of benefits of which shall be accelerated, by the consummation of the Merger or this Agreement or the value of any of the benefits of which shall be calculated on the basis of the Merger or this Agreement, excluding any Multiemployer Plan or any Employee Program;
(xxi) that currently is, or at any point in the three-year period ending on the date of this Agreement waswhich, in effect (A) either case, would have or would be reasonably likely to which any present or former director, officer, employee, stockholder or holder of derivative securities of the Company or any Company Subsidiary, or any member of any such Person’s immediate family, or any entity owned or controlled by any such Person, is a party, excluding any Multiemployer Plan or any Employee Program or other benefit or compensation plan or other plans, programs, policies, commitments or arrangements or (B) pursuant to which the Company or any Company Subsidiary receives any “preferred pricing” or similar benefit that is utilized by the Company or such Company Subsidiary in the ordinary course;
(xxii) (A) involving the payment of royalties or other amounts calculated based upon the revenues or income of the Company or any Company Subsidiary or income or revenues related to any product of the Company or any Company Subsidiary that deviate from the Company’s standard form agreements made available to Parent or (B) with the Company’s top 10 licensing partners as measured by revenue during the 12 months prior to the date of this Agreement;
(xxiii) in respect of any settlements or coexistence agreements with respect to any pending or threatened action (A) entered into within 12 months prior to the date of this Agreement or (B) with respect to which any unsatisfied amounts or ongoing obligations remain outstanding;
(xxiv) that constitutes a Company Related Party Contract;
(xxv) with any Governmental Entity or a third party that is a party to a Contract with a Governmental Entity with respect to the subject matter of such underlying Contract; and
(xxvi) that commits the Company or any Company Subsidiary to enter into any of the foregoing. Each of the contracts of the type described in this Section 5.15 is referred to in this Agreement as a “Company Contract.”
(b) Except as would nothave, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except as set forth on Schedule 4.13, (i) each the Company has no Knowledge of, and none of the Closing Date Principal Shareholders has knowledge of, any plan or intention of any other party to any Company Contract is valid, binding and enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating exercise any right to cancel or affecting creditors’ rights or by general equity principles and (ii) each Company Contract is in full force and effect with respect to the Company or the Company Subsidiaries, as applicable, and, to the Knowledge of the Company, with respect to the other parties thereto. Neither the Company nor any Company Subsidiary is and, to the Knowledge of the Company, no other party is, in breach or violation of, or in default under, any terminate that Company Contract. To the Knowledge of the Company, no event has occurred that would reasonably be expected to result in a breach of, or a default under, any material Company Contract (in each case, with or without notice or lapse of time or both).
Appears in 1 contract
Company Contracts. (a) Except for this Agreement and the contracts filed with the Company Reports, Section 5.15 3.14(a) of the Company Disclosure Letter sets forth a truelist of the following Contracts (other than the Company Plans) to which an Acquired Company is a party as of the date hereof (collectively, complete the “Company Contracts”):
(i) any Contract relating to (A) indebtedness for borrowed money except for Indebtedness for an amount less than Fifty Thousand Dollars ($50,000) or (B) placing an Encumbrance on any of the assets or Equity Interests of an Acquired Company, other than any Permitted Encumbrance;
(ii) any Contract relating to loans or advances to, guarantees (other than of Liabilities of an Acquired Company) for the benefit of, or any investments in, any Persons (other than an Acquired Company) in excess of One Hundred Fifty Thousand Dollars ($150,000) in the aggregate;
(iii) any Contract (other than a Government Contract) the performance of which is reasonably expected to involve annual net revenue payable to an Acquired Company in excess of Five Hundred Thousand Dollars ($500,000);
(iv) any Contract the performance of which is reasonably expected to involve consideration payable by an Acquired Company in excess of Three Hundred Fifty Thousand Dollars ($350,000) and correct listcannot be terminated by the Acquired Company without penalty upon notice of ninety (90) days or less;
(v) any Contract (other than a teaming agreement or Government Contract) containing (A) “most favored nation” pricing terms or granting to any customer any right of first offer or right of first refusal or exclusivity, (B) any provisions limiting the ability of any Acquired Company to engage, in any material respect, in any line of business or to compete, in any material respect, with any Person or (C) any covenant not to solicit any employees of another Person that is material to any Acquired Company, other than in customary provisions in teaming agreements and Contracts with subcontractors under Government Contracts;
(vi) any collective bargaining agreement or other Contract with any labor organization or other employee representative;
(vii) the Company IPR Agreements;
(viii) any partnership, joint venture or similar Contract;
(ix) any Contract that relates to the future disposition or acquisition by an Acquired Company of assets or properties for consideration in excess of One Hundred Fifty Thousand Dollars ($150,000), other than Contracts for the sale of equipment or the procurement of assets on behalf of customers in the ordinary course of business;
(x) any Contract with any employee or other individual service provider or consultant pursuant to which the Acquired Companies provide annual compensation in excess of One Hundred Fifty Thousand Dollars ($150,000), other than any “at will” Contract that may be terminated by an Acquired Company upon thirty (30) days or less advance notice (or such period required by applicable Law);
(xi) any Contract involving the settlement of any Action, Liability or threatened Action with respect to which, as of the date of this Agreement, and the Company has, prior to the date of this Agreement, made available to Parent true, complete and correct copies (subject to any limitations specified in this Section 5.15(a)), of each Contract to which the Company or any Company Subsidiary is party or by which the Company or any Company Subsidiary is bound:
(i) that is filed as an exhibit to the Company’s Annual Report on Form 10-K for the fiscal year ended May 31, 2024, or is otherwise a “material contract” pursuant to Item 601(b)(10) of Regulation S-K promulgated by the SEC;
(ii) that (A) limitsany unpaid amount exceeds Three Hundred Fifty Thousand Dollars ($350,000), restricts or prohibits the Company or any Company Subsidiary (or, after giving effect to the transactions contemplated by this Agreement, would limit, restrict or prohibit Parent or any of its Affiliates) from conducting any material business or doing business with any Person in any geographical area or to compete with any Person or (B) grants exclusivity, “most favored nation,” “take conditions precedent to the settlement have not been satisfied or pay” or similar rights, or that requires or purports to require (C) has limitations on the Company or any Company Subsidiary to acquire all or a specified portion of its requirements of a material good or service from any Person;
(iii) Reserved;
(iv) relating to any individual lease or agreement under which the Company or any Company Subsidiary is lessee of, or holds or operates any personal property owned by any other party, for which the aggregate rental payments exceed (or are expected to exceed) $100,000 in any 12-month period;
(v) relating to any lease or agreement under which the Company or any Company Subsidiary is lessor of or permits any third party to hold or operate any property, real or personal;
(vi) relating to (other than purchase orders entered into in the ordinary course of business) any Contracts with any customers or suppliers operation of the Company or any Company Subsidiary;
(vii) relating to agreements, indentures or other evidence of indebtedness relating to the borrowing of money by the Company or any Company Subsidiary or to mortgaging, pledging or otherwise placing an Encumbrance (other than a Permitted Encumbrance) on any portion of the assets of the Company or any Company Subsidiary;
(viii) that is with an executive officer and contains a non-compete provision;
(ix) that imposes any material restriction on the Affiliates of the Company or of any Company Subsidiary;
(x) relating to the creation, formation, operation, management or control of any material partnerships, joint ventures, limited liability companies, strategic alliances or similar arrangements;
(xi) (A) that was entered into after December 31, 2023 and relates to the acquisition, disposition, purchase or sale, directly or indirectly, by merger, sale, lease, purchase, capital contribution or otherwise (whether in one transaction or a series of transactions), by the Company or any Company Subsidiary (or, after the Effective Time, Parent or any of its subsidiaries) of substantially all of the equity interests, material assets or operating business of any Person or material assets or material line of business or (B) is currently in effect and contains a put, call right of first refusal, right of first offer or other similar preferential right pursuant to which the Company or any Company Subsidiary (or, after the Effective Time, Parent or any of its subsidiaries) could be required to acquire, dispose of, lease, purchase or sell, as applicable, substantially all of the equity interests, material assets or operating business of the Company or Acquired Companies as presently conducted in any current or former Company Subsidiarymaterial respect;
(xii) without limiting Section 5.15(a)(xi), that obliges the Company any outstanding written or otherwise binding commitment to enter into any Company Subsidiary to make any earn-out payments or other contingent payments (but not indemnification payments) in connection with the acquisition or divestment of a business or Person by the Company or any Company Subsidiary, that have not been paid in full as agreement of the date hereoftype described in subsections (i) through (xii) of this Section 3.14(a);
(xiii) containing any standstill or similar agreement pursuant to Government Contract active (i.e., for which the Company period of performance has not expired or any Company Subsidiary has agreed not to acquire assets or securities of another Person where such commitment remains in effect terminated) as of the date hereof;
(xiv) hereof that the Company expects to generate more than (x) obligates Twenty Million Dollars ($20,000,000) in revenue to the Company or any Company Subsidiary to make a loan or capital contribution to, or investment in excess Acquired Companies over the life of $50,000 in any Person other than loans to any Company Subsidiary and advances to employees in the ordinary course of business consistent with past practice Contract or (y) obligates the Company or any Company Subsidiary to provide a guarantee that would reasonably be expected to result Four Million Dollars ($4,000,000) in payments in excess of $50,000 other than guarantees by the Company or any Company Subsidiary of another Company Subsidiary’s obligations;
(xv) with any third-party service providers for the provision of billing and collection services revenue to the Company or any Company Subsidiary;
Acquired Companies in 2016 (xvi) pursuant to which collectively, the Company or any Company Subsidiary received during calendar year 2024 payments in excess of $500,000 annually (other than purchase orders entered into in the ordinary course of business and except as otherwise disclosed in Section 5.15 of the Company Disclosure Letter“Material Government Contracts”);
(xvii) that is for the services of any officer, director, individual employee (except, as it relates to any former employee, only to the extent of ongoing liability), independent contractor or individual service provider that cannot be terminated on 60 or fewer days’ notice without any liability or financial obligation incurred by the Company or any Company Subsidiary;
(xviii) that contains any assignment, transfer, grant, license, sublicense, right, consent, waiver, permission or covenant not to assert any claims relating to or under any Intellectual Property (A) by the Company or any Company Subsidiary to a third party or (B) by a third party to the Company or any Company Subsidiary (excluding licenses of commercially available, non-customized, off-the-shelf software available on standard terms for a potential annual or aggregate license fee (whichever is higher) of no more than $50,000 and excluding Personnel IP Contracts);
(xix) entered into with any supplier (A) that is a sole source supplier to the Company or any Company Subsidiary or (B) from which the Company or any Company Subsidiary source substantially all of their supply of any material product or service, except in each case where the Company or any Company Subsidiary would likely be able to replace such source of supply with a substitute supply at substantially the same volume and quality, on substantially comparable terms and without material delay;
(xx) under which any of the compensation or benefits thereunder, to any Person that is a party thereto, shall be increased, or the vesting of benefits of which shall be accelerated, by the consummation of the Merger or this Agreement or the value of any of the benefits of which shall be calculated on the basis of the Merger or this Agreement, excluding any Multiemployer Plan or any Employee Program;
(xxi) that currently is, or at any point in the three-year period ending on the date of this Agreement was, in effect (A) to which any present or former director, officer, employee, stockholder or holder of derivative securities of the Company or any Company Subsidiary, or any member of any such Person’s immediate family, or any entity owned or controlled by any such Person, is a party, excluding any Multiemployer Plan or any Employee Program or other benefit or compensation plan or other plans, programs, policies, commitments or arrangements or (B) pursuant to which the Company or any Company Subsidiary receives any “preferred pricing” or similar benefit that is utilized by the Company or such Company Subsidiary in the ordinary course;
(xxii) (A) involving the payment of royalties or other amounts calculated based upon the revenues or income of the Company or any Company Subsidiary or income or revenues related to any product of the Company or any Company Subsidiary that deviate from the Company’s standard form agreements made available to Parent or (B) with the Company’s top 10 licensing partners as measured by revenue during the 12 months prior to the date of this Agreement;
(xxiii) in respect of any settlements or coexistence agreements with respect to any pending or threatened action (A) entered into within 12 months prior to the date of this Agreement or (B) with respect to which any unsatisfied amounts or ongoing obligations remain outstanding;
(xxiv) that constitutes a Company Related Party Contract;
(xxv) with any Governmental Entity or a third party that is a party to a Contract with a Governmental Entity with respect to the subject matter of such underlying Contract; and
(xxvi) that commits the Company or any Company Subsidiary to enter into any of the foregoing. Each of the contracts of the type described in this Section 5.15 is referred to in this Agreement as a “Company Contract.”
(b) Except as would not, individually or set forth in Section 3.14(b) of the aggregate, reasonably be expected to have a Company Material Adverse EffectDisclosure Letter, (i) each Company Contract is valid, binding and enforceable off-the-shelf software licensed under shrink wrap agreements for which an Acquired Company pays more than $50,000 in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to licensing or affecting creditors’ rights or by general equity principles and other fees per software title in the last fiscal year (iiA) each Company Contract is in full force and effect with respect to the and constitutes a valid and binding obligation of each Acquired Company or the Company Subsidiaries, as applicable, party thereto and, to the Knowledge of the Company, with respect to the other parties thereto and (B) assuming such Company Contract is binding and enforceable against the other parties thereto. Neither , is enforceable against each Acquired Company party thereto, except that such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws now or hereafter in effect relating to or affecting the rights and remedies of creditors and general principles of equity (whether considered in a proceeding at Law or in equity) and the discretion of a court before which any proceeding therefor may be brought, (ii) no Acquired Company nor any Company Subsidiary is andor, to the Knowledge of the Company, no other party is, is alleged in writing to be in breach of or violation of, or default in default under, any material respect under any Company Contract. To Contract or any such off-the-shelf software and (iii) to the Knowledge of the Company, no counterparty is in breach of or default in any material respect under any Company Contract or any such off-the-shelf software, and (iv) to the Knowledge of the Company, no condition exists or event has occurred that would reasonably be expected to result in a breach of, or a default under, any material Company Contract (in each case, which with or without notice or lapse of time or bothboth would reasonably be expected to constitute a breach or default in any material respect under any Company Contract or any such off-the-shelf software. As of the date hereof, no Acquired Company has received a written notice of termination of any Company Contract or any such off-the-shelf software, and, except where the right to terminate would otherwise exist absent the entry into and performance of this Agreement, the entry into and performance of this Agreement will not result in termination of, or enable any Person to terminate or alter the terms of, any of the Company Contracts and, except as would not reasonably be expected to have a material adverse effect to the Company, any such off-the-shelf software. A true, correct and complete copy of each Company Contract (including amendments thereto), through the date hereof, has been made available to Parent.
Appears in 1 contract
Sources: Merger Agreement (Kbr, Inc.)