Business Contracts. (a) Schedule 3.13(a) sets forth, as of the date hereof, a true, correct and complete list of the following Contracts (other than work orders and purchase orders which need not be scheduled for purposes of Schedule 3.13(a) but shall nonetheless constitute “Business Contracts” as defined below) to which Parent or any of its Affiliates (excluding the Companies), solely in connection with the Business, is a party, any Company is a party, by which any Company or any property or asset thereof is subject, or by which the Business is otherwise bound (such Contracts listed on Schedule 3.13(a), together with all Contracts entered into after the date hereof that, if entered into immediately prior to the date hereof, would have been required to be listed on Schedule 3.13(a), collectively, the (“Business Contracts”)): (i) all Contracts with suppliers under which the Business is contractually obligated to make payments in excess of $5,000,000 on an annual basis; (ii) all Contracts that individually involve contractually obligated payments to or from the Business in excess of $5,000,000 on an annual basis; (iii) all Contracts (A) with Material Customers, and (B) Material Vendors; (iv) all Contracts with any Material Customer or Material Vendor granting to any Person a right of first refusal, right of first offer, exclusivity right, most favored nation right or other similar right to purchase any of the properties or assets, or products or services, of Parent and its Affiliates (excluding the Companies), solely in connection with the Business, or the Companies; (v) any Contract that relates to an acquisition or divestiture of assets or properties with a purchase price in excess of $10,000,000 within the last three (3) years and that contains covenants, indemnities or other obligations that remain in effect and would reasonably be likely to be material to the Business, taken as a whole; (vi) any Contract for the employment of any Workers of the Business earning an annual base salary in excess of $300,000 or the local equivalent that is not otherwise terminable upon thirty (30) days’ notice or less (or upon providing statutory notice if longer) with no severance benefits; (vii) all bonds, debentures, notes, loans, credit or loan Contracts or loan commitments, mortgages, indentures, guarantees or other Contracts relating to Indebtedness, whether or not drawn, or any Liens securing any Indebtedness, other than any such Contracts exclusively between one or more Companies; (viii) all Real Property Leases or other leases or licenses involving any assets of the Companies (whether real, personal or mixed, tangible or intangible) involving a contractually obligated payment of more than $5,000,000 individually by the Business on an annual basis (other than any Contracts involving licenses of Intellectual Property Rights or software and covenants not to assert (including sue under) any Intellectual Property Rights); (ix) all Contracts that provide for an increased payment or benefit or accelerated vesting, upon the execution of this Agreement or the Closing or in connection with the transactions contemplated by this Agreement; (x) any Contract that involves any resolution or settlement (in whole or in part) of any actual or threatened Action that (A) has not been fully performed by Parent and its Affiliates (excluding the Companies), solely in connection with the Business, or the Companies prior to the date hereof, or (B) imposes any continuing injunctive or other material non-monetary relief on the Business, Parent or any of its Affiliates (excluding the Companies), solely in connection with the Business, or any Company; (xi) any Contracts involving the operation of any joint venture or partnership entity or otherwise involving the sharing of profits, losses, costs or Liabilities that Parent or any of its Affiliates (excluding the Companies), solely in connection with the Business, or any Company has in a Person that is not directly or indirectly wholly owned by any Company; (xii) any Intercompany Arrangement; (xiii) any Collective Bargaining Agreement; (xiv) any Contract under which Parent or any of its Affiliates (excluding the Companies), solely in connection with the Business, or any Company, directly or indirectly, has made or is required to make any loan, extension of credit or capital contribution to, or other investment in, any Person outside the Ordinary Course; (xv) all Contracts with any Material Customer or Material Vendor restricting or purporting to restrict the Business from engaging in or competing with any business activity in any geographic area, competing or engaging in any line of business, soliciting any business or customer, or soliciting for employment or hiring any Person (except for non-disclosure or confidentiality agreements with customary terms and conditions entered into in connection with potential acquisitions or dispositions or otherwise in the Ordinary Course); (xvi) all Contracts by which Parent or any of its Affiliates (excluding the Companies), solely in connection with the Business, or a Company licenses Intellectual Property Rights from or to any Person that individually involve contractually obligated payments to or from the Business in excess of $500,000 on an annual basis, excluding (A) any Contracts non-exclusively licensing Intellectual Property Rights that is generally available; (B) non-exclusive licenses granted by or to Parent or any of its Affiliates (excluding the Companies), solely in connection with the Business, or the Companies to or from customers, vendors, resellers or distributors of the Business in the Ordinary Course, (C) confidentiality Contracts; (D) open source software licenses; and (E) commercial Contracts to the extent including ancillary, non-exclusive licenses granted in the Ordinary Course that are incidental to the primary purpose of the Contracts in which such licenses are granted; and (xvii) any Contract to enter into any of the foregoing. (b) All Business Contracts are in full force and effect in all material respects and, to the Knowledge of Parent, are currently enforceable in all material respects against the applicable Company or one of its Affiliates, as applicable, and, to the Knowledge of Parent, as of the Closing will be, if not expired in the Ordinary Course pursuant to the terms of such Business Contracts, enforceable in all material respects against the other party thereto in accordance with the express terms thereof, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights and to general principles of equity, except for such failures that would not, individually or in the aggregate, have a Material Adverse Effect. To the Knowledge of Parent, there does not exist under any Business Contract any event of default, event or condition that, after notice or lapse of time or both, would constitute a violation, breach or event of default thereunder, and neither Parent nor any of its Affiliates (excluding the Companies), solely in connection with the Business, nor any Company has received any written claim or written notice of breach of default under any Business Contract, on the part of the Business, except as set forth on Schedule 3.13(b) and except for such events of default, events, conditions, violations or breaches that would not, individually or in the aggregate, have a Material Adverse Effect. Parent has made available to Buyer a true, correct and complete copy of each Business Contract (including any amendments, modifications and waivers thereto) that is in effect as of the date of this Agreement, and each Business Contract is adequately stamped where so required in any applicable jurisdiction under applicable Law. (c) Except as disclosed on Schedule 3.13(c) or Schedule 3.13(a)(xv), there are no Contracts to which Parent or any of its Affiliates (excluding the Companies), solely in connection with the Business, is a party, any Company is a party, by which any Company or any property or asset thereof is subject, or by which the Business is otherwise bound that contains any right of first refusal, right of first offer, exclusivity right, most favored nations right or other similar right to purchase any of the properties or assets, or products or services of Parent and its Affiliates (excluding the Companies), solely in connection with the Business, or the Companies, or that restrict or purport to restrict the Business from engaging in or competing with any business activity in any geographic area, competing or engaging in any line of business, or soliciting any business or customer, in each case in a manner that would adversely affect the Business in any material respect. (d) The Business as currently practiced and operated by Parent and its Subsidiaries does not violate Section 5.3 of the Separation and Distribution Agreement, by and between Parent and NCR Atleos Corporation, a Maryland corporation, dated October 16, 2023.
Appears in 1 contract
Sources: Purchase Agreement (NCR Voyix Corp)
Business Contracts. (a) Schedule 3.13(a3.15(a) sets forth, as of the date hereof, forth a true, correct and complete list of the following Contracts (other than work orders and purchase orders which need not be scheduled for purposes of Schedule 3.13(a) but shall nonetheless constitute “Business Contracts” as defined below) to which Parent or any of its Affiliates (excluding the Companies), solely in connection with the Business, Acquired Companies is a partyparty or which is an Assumed Contract (collectively, any Company is a party, by which any Company including the Existing Shipper/Broker Transportation Agreement and whether or any property or asset thereof is subject, or by which the Business is otherwise bound (not such Contracts are actually listed on Schedule 3.13(a)3.15 (but which, together with all Contracts entered into after for the date hereof thatavoidance of doubt, if entered into immediately prior to the date hereof, would have been are required to be listed on Schedule 3.13(a3.15), collectively, the (“Business Contracts”)) (other than the Company Benefit Plans set forth on Schedule 3.19(a) and the Insurance Policies set forth on Schedule 3.21):
(i) all Contracts (excluding work orders and purchase orders) with suppliers under which the Business is contractually obligated to make payments in excess of $5,000,000 on an annual basisany Material Customer;
(ii) all Contracts that individually involve contractually obligated payments to or from the Business in excess of $5,000,000 on an annual basis(excluding work orders and purchase orders) with any Material Supplier;
(iii) all Contracts for the employment of a Transferred Employee earning annual compensation in excess of $200,000 (Aor the local equivalent) with Material Customers, and which cannot otherwise be terminated without monetary obligation (B) Material Vendorsother than standard employee confidentiality or non-disclosure agreements or forms of offer letters);
(iv) all Contracts with any Material Customer or Material Vendor granting to any Person a right of first refusal, right of first offer, exclusivity right, most favored nation right or other similar right to purchase any of the properties or assets, or products or services, of Parent and its Affiliates (excluding the Companies), solely in connection with the Business, or the Companies;
(v) any Contract that relates to an acquisition or divestiture of assets or properties with a purchase price in excess of $10,000,000 within the last three (3) years and that contains covenants, indemnities or other obligations that remain in effect and would reasonably be likely to be material to the Business, taken as a whole;
(vi) any Contract for the employment of any Workers of the Business earning an annual base salary in excess of $300,000 or the local equivalent that is not otherwise terminable upon thirty (30) days’ notice or less (or upon providing statutory notice if longer) with no severance benefits;
(vii) all bonds, debentures, notes, loans, credit or loan Contracts or loan commitments, mortgages, indentures, guarantees or other Contracts relating to Indebtedness, whether or not drawn, or any Liens securing any Indebtedness, other than any such Contracts exclusively between one or more Companies;
(viiiv) all Real Property Leases or other leases or licenses involving any assets of the Companies (whether real, personal or mixed, tangible or intangible) involving a contractually obligated payment of more than $5,000,000 1,000,000 individually by the Acquired Companies or the Business on an annual basis (other than any Contracts involving the Leases or licenses of Intellectual Property Rights or software and covenants not to assert (including sue under) any Intellectual Property RightsProperty);
(ixvi) all Contracts with Transferred Employees that provide for an increased payment or benefit benefit, or accelerated vesting, upon the execution of this Agreement or the Closing or in connection with the transactions contemplated by this AgreementAgreement (either alone or in conjunction with any other event);
(x) any Contract that involves any resolution or settlement (in whole or in part) of any actual or threatened Action that (A) has not been fully performed by Parent and its Affiliates (excluding the Companies), solely in connection with the Business, or the Companies prior to the date hereof, or (B) imposes any continuing injunctive or other material non-monetary relief on the Business, Parent or any of its Affiliates (excluding the Companies), solely in connection with the Business, or any Company;
(xi) any Contracts involving the operation of any joint venture or partnership entity or otherwise involving the sharing of profits, losses, costs or Liabilities that Parent or any of its Affiliates (excluding the Companies), solely in connection with the Business, or any Company has in a Person that is not directly or indirectly wholly owned by any Company;
(xii) any Intercompany Arrangement;
(xiii) any Collective Bargaining Agreement;
(xiv) any Contract under which Parent or any of its Affiliates (excluding the Companies), solely in connection with the Business, or any Company, directly or indirectly, has made or is required to make any loan, extension of credit or capital contribution to, or other investment in, any Person outside the Ordinary Course;
(xvvii) all Contracts with any Material Customer or Material Vendor restricting or purporting to restrict any Acquired Company or the Business from engaging in or competing with any business activity or acquiring any business or Person in any geographic area, competing or engaging in any line of business, soliciting any business or customer, or soliciting for employment or hiring any Person (except for non-disclosure or confidentiality agreements with customary terms and conditions entered into in connection with potential acquisitions or dispositions or otherwise in the Ordinary Course);
(xviviii) all Contracts that grant to any Person a right to “most favored nation” pricing terms, exclusivity, right of first refusal, right of first negotiation or similar rights that impose on any Acquired Company or the Business any take-or-pay or similar minimum purchase requirement;
(ix) all Contracts by which Parent the Acquired Companies or any of its Affiliates Seller Entities (excluding the Companies), solely in connection with as it relates to the Business) (A) grant a license, covenant not to sue, or a other right to use material Company licenses Intellectual Property Rights from or to any Person that individually involve contractually obligated payments to or from the Business in excess of $500,000 on an annual basis, excluding (A) any Contracts non-exclusively licensing Intellectual Property Rights that is generally available; (B) other than non-exclusive licenses granted by with customers or to Parent or any of its Affiliates (excluding the Companies), solely in connection with the Business, or the Companies to or from customers, vendors, resellers or distributors vendors of the Business in the Ordinary Course, (C) confidentiality Contracts; (D) open source software licenses; and (E) Contracts entered into in the Ordinary Course or commercial Contracts to the extent including ancillary, ancillary non-exclusive licenses granted in the Ordinary Course that are incidental to the primary purpose of the Contracts in which such licenses are granted) or (B) obtain a license, covenant not to sue, or other right to use any Intellectual Property of any Person that is material to the conduct of the Business as currently conducted (other than commercial Contracts to the extent including ancillary non-exclusive licenses granted in the Ordinary Course that are incidental to the primary purpose of the Contracts in which such licenses are granted, licenses for generally available mass market software with annual fees of less than $250,000 and Open Source Software licenses);
(x) all Contracts relating to the acquisition or disposition of any business, or all or substantially all of the assets or equity interests of any Person or any material real property (whether by merger, sale of stock or assets or otherwise) in each case, under which material obligations of any party thereto remain outstanding;
(xi) all Contracts creating or relating to any partnership, joint venture or similar contract;
(xii) all Contracts requiring any capital commitment or capital expenditures (including series of related expenditures) in excess of $200,000 individually or $1,000,000 in the aggregate;
(xiii) all Shared Contracts that are material to the Business, other than those relating to any Excluded Service (as defined in the Transition Services Agreement), it being understood that disclosure of a Shared Contract on Schedule 3.15(a) does not in and of itself mean that any portion of such Shared Contract will be assigned to the Buyer;
(xiv) all Contracts with any Governmental Entity that are material to the Business; and
(xviixv) all Contracts that were entered into in connection with the settlement or other resolution of any Contract Action pursuant to enter into which any of Acquired Company or the foregoingBusiness has any ongoing monetary performance obligations.
(b) All Business Contracts are in full force and effect in all material respects and, to assuming the Knowledge of Parentdue authorization, execution and delivery by any other party thereto, are currently binding on and enforceable in all material respects against the applicable Company Acquired Companies or one of its Affiliatestheir Affiliates party thereto, as applicable, and, to the Knowledge of Parentthe Business, as of the Closing will be, if not expired in the Ordinary Course pursuant to the terms of such Business Contractspreviously terminated or expired, enforceable in all material respects against the other party thereto parties thereto, in each case, in accordance with the express terms thereof, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights and to general principles of equity, except for such failures that as would notnot reasonably be expected to be material to the Business or the Acquired Companies, individually or in the aggregate, have taken as a Material Adverse Effectwhole. To the Knowledge of Parent, there There does not exist under any Business Contract any event of default, event or condition that, after notice or lapse of time or both, would constitute a violation, breach or event of default thereunder, and neither Parent nor any thereunder as of its Affiliates (excluding the Companies), solely in connection with the Business, nor any Company has received any written claim or written notice of breach of default under any Business Contract, date hereof on the part of any Acquired Company or any of their Affiliates party thereto or the Business, or, to the Knowledge of the Business, any other party thereto, that would, individually or in the aggregate, reasonably be expected to be material to the Business or the Acquired Companies, taken as a whole, except as set forth on Schedule 3.13(b3.15(b). With respect to each Person that is a counterparty to the Business Contracts, (i) there are no outstanding disputes with such Person and (ii) such Person has not terminated or threatened in writing to terminate, or materially decrease or adversely alter, its relationship with the Business or the Acquired Companies, except for any such events of defaultdisputes, events, conditions, violations terminations or breaches other alterations that would not, individually or in the aggregate, have a Material Adverse Effect. Parent has made available reasonably be expected to Buyer a true, correct and complete copy of each Business Contract (including any amendments, modifications and waivers thereto) that is in effect as of the date of this Agreement, and each Business Contract is adequately stamped where so required in any applicable jurisdiction under applicable Law.
(c) Except as disclosed on Schedule 3.13(c) or Schedule 3.13(a)(xv), there are no Contracts be material to which Parent or any of its Affiliates (excluding the Companies), solely in connection with the Business, is a party, any Company is a party, by which any Company or any property or asset thereof is subject, or by which the Business is otherwise bound that contains any right of first refusal, right of first offer, exclusivity right, most favored nations right or other similar right to purchase any of the properties or assets, or products or services of Parent and its Affiliates (excluding the Companies), solely in connection with the Business, or the Acquired Companies, or that restrict or purport to restrict the Business from engaging in or competing with any business activity in any geographic area, competing or engaging in any line of business, or soliciting any business or customer, in each case in taken as a manner that would adversely affect the Business in any material respectwhole.
(d) The Business as currently practiced and operated by Parent and its Subsidiaries does not violate Section 5.3 of the Separation and Distribution Agreement, by and between Parent and NCR Atleos Corporation, a Maryland corporation, dated October 16, 2023.
Appears in 1 contract
Sources: Purchase Agreement (RXO, Inc.)
Business Contracts. (a) Schedule 3.13(aSection 3.26(a) sets forth, as of the date hereof, Seller Disclosure Schedule contains a true, correct true and complete list of each of the following Business Contracts (other than work orders true and purchase orders which need not be scheduled for purposes complete copies or, if none, reasonably complete and accurate written descriptions of Schedule 3.13(a) but shall nonetheless constitute “Business Contracts” as defined below) to which Parent or any of its Affiliates (excluding the Companies), solely in connection with the Business, is a party, any Company is a party, by which any Company or any property or asset thereof is subject, or by which the Business is otherwise bound (such Contracts listed on Schedule 3.13(a)which, together with all Contracts entered into after the date hereof thatamendments and supplements thereto and all waivers of any terms thereof, if entered into immediately have been delivered to Purchaser prior to the date hereofexecution of this Agreement (other than employee offer letters).
(b) Except for the Contracts described in Section 3.26(a) of the Seller Disclosure Schedule, would have been required Seller is not a party to be listed on Schedule 3.13(a)or bound by any material Contract, collectively, the (“Business Contracts”)):including:
(i) all Contracts with suppliers under which any distributor, agency, advertising agency, manufacturer's representative or material sales Contract related to the Business is contractually obligated to make payments in excess of $5,000,000 on an annual basisBusiness;
(ii) all Contracts that individually involve contractually obligated payments to any continuing Contract for the purchase of materials, supplies, equipment or from services for use in connection with the Business in excess of $5,000,000 which is not subject to cancellation by Seller, or which is subject to cancellation by the other party thereto on an annual basissixty (60) or fewer days' notice;
(iii) all Contracts (A) any Business Contract or any Contract otherwise binding upon any of the Purchased Assets or relating to any of the Assumed Liabilities that had or would reasonably be expected to have, either individually or in the aggregate with any other similar Contracts, a Material Customers, and (B) Material VendorsAdverse Effect on the Business;
(iv) all Contracts with any Material Customer Contract related to the conduct of the Business that expires or Material Vendor granting to may be renewed at the option of any Person a right other than Seller so as to expire more than one year after the date of first refusal, right of first offer, exclusivity right, most favored nation right or other similar right to purchase any of the properties or assets, or products or services, of Parent and its Affiliates (excluding the Companies), solely in connection with the Business, or the Companiesthis Agreement;
(v) any Contract related to the conduct of the Business that relates to an acquisition (x) automatically terminates or divestiture provides for termination by any Person other than Seller upon consummation of assets the transactions contemplated by this Agreement or properties with a purchase price in excess of $10,000,000 within the last three (3y) years and that contains covenants, indemnities any covenant or other obligations that remain provision which limits Seller's (and, after the Closing, would limit Purchaser's) ability to compete with any Person in effect and would reasonably be likely to be material to any line of business comprising the BusinessBusiness or in any market, taken as a whole;area, jurisdiction or territory; or
(vi) any trust indenture, mortgage, promissory note, loan agreement or other Contract for the employment borrowing of money, any Workers currency exchange, commodities or other hedging arrangement or any leasing transaction related to the conduct of the Business earning an annual base salary or binding on the Purchased Assets of the type required to be capitalized in excess of $300,000 or the local equivalent that is not otherwise terminable upon thirty (30) days’ notice or less (or upon providing statutory notice if longer) accordance with no severance benefitsGAAP;
(vii) all bonds, debentures, notes, loans, credit any Contract for capital expenditures related to the conduct of the Business in excess of ten thousand dollars ($10,000) individually or loan Contracts or loan commitments, mortgages, indentures, guarantees or other Contracts relating to Indebtedness, whether or not drawn, or any Liens securing any Indebtedness, other than any such Contracts exclusively between one or more Companiesfifty thousand dollars ($50,000) in the aggregate;
(viii) all Real Property Leases or other leases or licenses involving any assets of the Companies (whether real, personal or mixed, tangible or intangible) involving a contractually obligated payment of more than $5,000,000 individually by Contract related to the Business on an annual basis (other than with any Contracts involving licenses of Intellectual Property Rights or software and covenants person with whom Seller does not to assert (including sue under) any Intellectual Property Rights);deal at arm's length; or
(ix) all Contracts that provide for an increased payment or benefit or accelerated vesting, upon the execution of this Agreement or the Closing or in connection with the transactions contemplated by this Agreement;
(x) any Contract that involves any resolution of guarantee, support, indemnification, assumption or settlement (in whole or in part) of any actual or threatened Action that (A) has not been fully performed by Parent and its Affiliates (excluding the Companies), solely in connection with the Business, or the Companies prior to the date hereof, or (B) imposes any continuing injunctive or other material non-monetary relief on the Business, Parent or any of its Affiliates (excluding the Companies), solely in connection with the Businessendorsement of, or any Company;
(xi) any Contracts involving the operation of any joint venture or partnership entity or otherwise involving the sharing of profitssimilar commitment with respect to, losses, costs obligations or Liabilities that Parent or any of its Affiliates (excluding the Companies), solely in connection with the Business, or any Company has in a Person that is not directly or indirectly wholly owned secured by any Company;
(xii) any Intercompany Arrangement;
(xiii) any Collective Bargaining Agreement;
(xiv) any Contract under which Parent or any of its Affiliates (excluding the Companies), solely in connection with the Business, or any Company, directly or indirectly, has made or is required to make any loan, extension of credit or capital contribution to, or other investment in, any Person outside the Ordinary Course;
(xv) all Contracts with any Material Customer or Material Vendor restricting or purporting to restrict the Business from engaging in or competing with any business activity in any geographic area, competing or engaging in any line of business, soliciting any business or customer, or soliciting for employment or hiring any Person (except for non-disclosure or confidentiality agreements with customary terms and conditions entered into in connection with potential acquisitions or dispositions or otherwise in the Ordinary Course);
(xvi) all Contracts by which Parent or any of its Affiliates (excluding the Companies), solely in connection with the Business, or a Company licenses Intellectual Property Rights from or to any Person that individually involve contractually obligated payments to or from the Business in excess of $500,000 on an annual basis, excluding (A) any Contracts non-exclusively licensing Intellectual Property Rights that is generally available; (B) non-exclusive licenses granted by or to Parent or any of its Affiliates (excluding the Companies), solely in connection with the Business, or the Companies to or from customers, vendors, resellers or distributors of the Business in the Ordinary Course, (C) confidentiality Contracts; (D) open source software licenses; and (E) commercial Contracts to the extent including ancillary, non-exclusive licenses granted in the Ordinary Course that are incidental to the primary purpose of the Contracts in which such licenses are granted; and
(xvii) any Contract to enter into any of the foregoingPurchased Assets.
(b) All Business Contracts are in full force and effect in all material respects and, to the Knowledge of Parent, are currently enforceable in all material respects against the applicable Company or one of its Affiliates, as applicable, and, to the Knowledge of Parent, as of the Closing will be, if not expired in the Ordinary Course pursuant to the terms of such Business Contracts, enforceable in all material respects against the other party thereto in accordance with the express terms thereof, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights and to general principles of equity, except for such failures that would not, individually or in the aggregate, have a Material Adverse Effect. To the Knowledge of Parent, there does not exist under any Business Contract any event of default, event or condition that, after notice or lapse of time or both, would constitute a violation, breach or event of default thereunder, and neither Parent nor any of its Affiliates (excluding the Companies), solely in connection with the Business, nor any Company has received any written claim or written notice of breach of default under any Business Contract, on the part of the Business, except as set forth on Schedule 3.13(b) and except for such events of default, events, conditions, violations or breaches that would not, individually or in the aggregate, have a Material Adverse Effect. Parent has made available to Buyer a true, correct and complete copy of each Business Contract (including any amendments, modifications and waivers thereto) that is in effect as of the date of this Agreement, and each Business Contract is adequately stamped where so required in any applicable jurisdiction under applicable Law.
(c) Except as disclosed on Schedule 3.13(c) or Schedule 3.13(a)(xv), there are no Contracts to which Parent or any of its Affiliates (excluding the Companies), solely in connection with the Business, is a party, any Company is a party, by which any Company or any property or asset thereof is subject, or by which the Business is otherwise bound that contains any right of first refusal, right of first offer, exclusivity right, most favored nations right or other similar right to purchase any of the properties or assets, or products or services of Parent and its Affiliates (excluding the Companies), solely in connection with the Business, or the Companies, or that restrict or purport to restrict the Business from engaging in or competing with any business activity in any geographic area, competing or engaging in any line of business, or soliciting any business or customer, in each case in a manner that would adversely affect the Business in any material respect.
(d) The Business as currently practiced and operated by Parent and its Subsidiaries does not violate Section 5.3 of the Separation and Distribution Agreement, by and between Parent and NCR Atleos Corporation, a Maryland corporation, dated October 16, 2023.
Appears in 1 contract
Business Contracts. (a) Schedule 3.13(a) sets forth, as of the date hereof, forth a true, correct and complete list of the following Contracts (other than work orders and purchase orders which need not be scheduled for purposes of Schedule 3.13(a) but shall nonetheless constitute “Business Contracts” as defined below) to which Parent or any of its Affiliates (excluding the Companies), solely in connection with the Business, is a party, any Company is a party, by which any Company or any property or asset thereof is subject, or by which the Business is otherwise bound (such Contracts listed on Schedule 3.13(a), together with all Contracts entered into after the date hereof that, if entered into immediately prior to the date hereof, would have been required to be listed on Schedule 3.13(a), collectively, the (“Business Contracts”) (other than the Company Benefit Plans set forth on Schedule 3.17(a)):
(i) all Contracts (excluding work orders and purchase orders) with suppliers under which the Business is contractually obligated to make payments in excess of $5,000,000 1,000,000 on an annual basis;
(ii) all Contracts with distributors that exclusively relate to the Business;
(iii) all Contracts (excluding work orders and purchase orders) that individually involve contractually obligated payments to or from the Business in excess of $5,000,000 1,000,000 on an annual basis;
(iii) all Contracts (A) with Material Customers, and (B) Material Vendors;
(iv) all Contracts with any Material Customer or Material Vendor granting to any Person a right of first refusal, right of first offer, exclusivity right, most favored nation right or other similar right to purchase any of the properties or assets, or products or services, of Parent and its Affiliates (excluding the Companies), solely in connection with the Business, or the Companies;
(v) any Contract that relates to an acquisition or divestiture of assets or properties with a purchase price in excess of $10,000,000 within the last three (3) years and that contains covenants, indemnities or other obligations that remain in effect and would reasonably be likely to be material to the Business, taken as a whole;
(vi) any Contract for the employment of any Workers of the Business Employee earning an annual base salary in excess of $300,000 200,000, or the equivalent in local equivalent that is not otherwise terminable upon thirty (30) days’ notice or less (or upon providing statutory notice if longer) with no severance benefitscurrency;
(viiv) all bonds, debentures, notes, loans, credit or loan Contracts or loan commitments, mortgages, indentures, guarantees or other Contracts relating to Indebtedness, whether or not drawn, or any Liens securing any Indebtedness, other than any such Contracts exclusively between one or more Companiesthe borrowing of money;
(viiivi) all Real Property Leases or other leases or licenses involving any assets of the Companies (whether real, personal or mixed, tangible or intangible) involving a contractually obligated payment of more than $5,000,000 500,000 individually by the Business on an annual basis basis;
(vii) all joint venture or partnership Contracts, cooperative Contracts and all other than Contracts providing for the sharing of any profits;
(viii) all Contracts involving licenses of Intellectual Property Rights or software and covenants not to assert (including sue under) any Intellectual Property Rights)with a Governmental Entity;
(ix) all Contracts that provide providing for an increased payment or benefit or accelerated vesting, upon a material indemnification and the execution primary purpose of this Agreement or the Closing or in connection with the transactions contemplated by this Agreementwhich is indemnification;
(x) any Contract all Contracts that involves any resolution or settlement (in whole or in part) of any actual or threatened Action that (A) has not been fully performed by Parent and its Affiliates (excluding the Companies), solely in connection with the Business, or the Companies prior to the date hereof, or (B) imposes any continuing injunctive or other material non-monetary relief on the Business, Parent or any of its Affiliates (excluding the Companies), solely in connection with the Business, or any Companyimpose a “most favored nation” provision;
(xi) all Contracts related to any Contracts involving the operation settlement of any joint venture or partnership entity or otherwise involving the sharing of profits, losses, costs or Liabilities material Action that Parent imposes continuing payment obligations on any Company or any of its Affiliates (excluding the Companies), solely respective Subsidiaries in connection with the Business, or any Company has an amount in a Person that is not directly or indirectly wholly owned by any Companyexcess of $500,000;
(xii) any Intercompany Arrangementall Parent Related Party Contracts;
(xiii) any Collective Bargaining Agreement;
(xiv) any Contract under which Parent or any of its Affiliates (excluding the Companies), solely in connection with the Business, or any Company, directly or indirectly, has made or is required to make any loan, extension of credit or capital contribution to, or other investment in, any Person outside the Ordinary Course;
(xv) all Contracts with any Material Customer or Material Vendor restricting or purporting to restrict the Business from engaging in or competing with any business activity in any geographic area, competing or engaging in any line of business, soliciting any business or customer, or soliciting for employment or hiring any Person (except for non-disclosure or confidentiality agreements with customary terms and conditions entered into in connection with potential acquisitions or dispositions or otherwise in the Ordinary Course);
(xvi) all Contracts by which Parent or any of its Affiliates (excluding the Companies), solely in connection with the Business, or a Company licenses Intellectual Property Rights from or to any Person that individually involve contractually obligated payments to or from the Business in excess of $500,000 on an annual basis, excluding (A) any Contracts non-exclusively licensing Intellectual Property Rights that is generally available; (B) non-exclusive licenses granted by or to Parent or any of its Affiliates (excluding the Companies), solely in connection with the Business, or the Companies to or from customers, vendors, resellers or distributors of the Business in the Ordinary Course, (C) confidentiality Contracts; (D) open source software licenses; and (E) commercial Contracts to the extent including ancillary, non-exclusive licenses granted in the Ordinary Course that are incidental to the primary purpose of the Contracts in which such licenses are granted; and
(xviixiv) all Contracts pursuant to which (A) a Company or Affiliate thereof grants any Contract right, license or covenant not to enter into sue with respect to any Intellectual Property to any Person with respect to the Business or (B) a Company or Affiliate thereof obtains any right license or covenant not to sue with respect to any Intellectual Property from any Person with respect to the Business, excluding any Contracts licensing generally available mass market software under a click-wrap or shrink-wrap license or subscription service with annual costs of the foregoingless than $100,000.
(b) A true, correct and complete copy of each Business Contract in effect on the date of this Agreement has been made available to Buyer prior to the date of this Agreement. None of the Business Contracts are oral contracts, oral agreements or other oral arrangements. All Business Contracts are in full force and effect in all material respects and, and to the Knowledge of Parent, assuming the due authorization, execution and delivery by any other party thereto, are currently enforceable in all material respects against the applicable Company or one of its Affiliates, as applicable, and, to the Knowledge of Parent, as of the Closing will be, if not expired in the Ordinary Course pursuant to the terms of such Business Contractspreviously terminated or expired, enforceable in all material respects against the other party thereto in accordance with the express terms thereof, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights and to general principles of equity, except for such failures that would notnot reasonably be expected to be material to the Business, individually or in the aggregate, have taken as a Material Adverse Effectwhole. To the Knowledge of Parent, there There does not exist under any Business Contract any event of default, event or condition that, after notice or lapse of time or both, would constitute a violation, breach or event of default thereunder, and neither Parent nor any thereunder as of its Affiliates (excluding the Companies), solely in connection with the Business, nor any Company has received any written claim or written notice of breach of default under any Business Contract, date hereof on the part of the Business, or, to the Knowledge of Parent, any other party thereto, except as set forth on Schedule 3.13(b) and except for such events of default, events, conditions, violations or breaches that would notnot reasonably be expected to be material to the Business, individually or in the aggregate, have taken as a Material Adverse Effectwhole. Parent has made available to Buyer a true, correct and complete copy of each Business Contract (including any amendments, modifications and waivers thereto) that is in effect as of the date of this Agreement, and each Business Contract is adequately stamped where so required in any applicable jurisdiction under applicable Law.
(c) Except as disclosed on Schedule 3.13(c) or Schedule 3.13(a)(xv)has not been and would not reasonably be expected to be material to the Business, taken as a whole, there are no Contracts disputes pending with respect to which Parent or any of its Affiliates (excluding the Companies), solely in connection with the Business, is a party, any Company is a party, by which any Company or any property or asset thereof is subject, or by which the Business is otherwise bound that contains any right of first refusal, right of first offer, exclusivity right, most favored nations right or other similar right to purchase any of the properties or assets, or products or services of Parent and its Affiliates (excluding the Companies), solely in connection with the Business, or the Companies, or that restrict or purport to restrict the Business from engaging in or competing with any business activity in any geographic area, competing or engaging in any line of business, or soliciting any business or customer, in each case in a manner that would adversely affect the Business in any material respectContract.
(d) The Business as currently practiced and operated by Parent and its Subsidiaries does not violate Section 5.3 of the Separation and Distribution Agreement, by and between Parent and NCR Atleos Corporation, a Maryland corporation, dated October 16, 2023.
Appears in 1 contract
Business Contracts. (a) Schedule 3.13(a3.14(a) sets forth, as of the date hereofEffective Date, a true, correct and complete list of the following Contracts (other than work orders and purchase orders which need not be scheduled for purposes of Schedule 3.13(a) but shall nonetheless constitute “Business Contracts” as defined below) to which Parent or any either of its Affiliates (excluding the Companies), solely in connection with the Business, Acquired Companies is a party, any Company is a party, by which any Company party or any property or asset thereof is subject, or by which that are otherwise included within the Business is otherwise bound Additional Transferred Assets (such Contracts listed on Schedule 3.13(a), together with all Contracts entered into after the date hereof that, if entered into immediately prior to the date hereof, would have been required to be listed on Schedule 3.13(a), collectively, the (“Business Contracts”) (other than the Company Benefit Plans set forth on Schedule 3.18(a)):
(i) all Contracts with suppliers (excluding work orders and purchase orders, and excluding Contracts under which the Business is contractually obligated neither party has any obligation to make payments in excess of $5,000,000 on an annual basisbuy or sell products or services) with Suppliers;
(ii) all Contracts (excluding work orders, purchase orders and credit applications submitted in the Ordinary Course) with Customers, other than bids that individually involve contractually obligated payments to or from an Acquired Company has submitted that have not been formally accepted by the Business applicable Customer in excess writing as of $5,000,000 on an annual basisthe Effective Date;
(iii) all Contracts (A) with Material Customers, and (B) Material Vendors;
(iv) all Contracts with any Material Customer or Material Vendor granting to any Person a right of first refusal, right of first offer, exclusivity right, most favored nation right or other similar right to purchase any of the properties or assets, or products or services, of Parent and its Affiliates (excluding the Companies), solely in connection with the Business, or the Companies;
(v) any Contract that relates to an acquisition or divestiture of assets or properties with a purchase price in excess of $10,000,000 within the last three (3) years and that contains covenants, indemnities or other obligations that remain in effect and would reasonably be likely to be material to the Business, taken as a whole;
(vi) any Contract agreement for the employment of any Workers employee or with respect to the equity or other compensation of any employee who is exclusively employed by the Business earning an annual base salary in excess of $300,000 or the local equivalent that is not otherwise terminable upon thirty (30) days’ notice or less (or upon providing statutory notice if longer) with no severance benefitsat will;
(viiiv) all bonds, debentures, notes, loans, credit or loan Contracts agreements or loan commitments, mortgages, indentures, guarantees or other Contracts contracts relating to Indebtedness, whether or not drawn, or any Liens securing any Indebtedness, other than any such Contracts exclusively between one or more Companiesthe borrowing of money;
(viiiv) all Real Property Leases or other leases or licenses involving any assets of the Companies (whether real, personal or mixed, tangible or intangible, but excluding the Leased Real Property and the Owned Real Property) involving a contractually obligated an annual commitment or payment of more than $5,000,000 500,000 individually by the Business on an annual basis (other than any Contracts involving licenses of Intellectual Property Rights or software and covenants not to assert (including sue under) any Intellectual Property Rights)Business;
(ixvi) all Contracts Leases pertaining to the Leased Real Property that are either entered into by an Acquired Company or otherwise an Additional Transferred Asset involving an annual commitment or payment of more than $250,000;
(vii) all contracts that provide for an increased payment or benefit benefit, or accelerated vesting, upon the execution of this Agreement or the Closing or in connection with the transactions contemplated by this Agreementhereby;
(xviii) any Contract that involves any resolution all joint venture or settlement (in whole or in part) partnership contracts, other than the partnership agreement of any actual or threatened Action that (A) has not been fully performed by Parent and its Affiliates (excluding the Companies), solely in connection with the Business, or the Companies prior to the date hereof, or (B) imposes any continuing injunctive or other material non-monetary relief on the Business, Parent or any of its Affiliates (excluding the Companies), solely in connection with the Business, or any Company;
(xi) any Contracts involving the operation of any joint venture or partnership entity or otherwise involving the sharing of profits, losses, costs or Liabilities that Parent or any of its Affiliates (excluding the Companies), solely in connection with the Business, or any Company has in a Person that is not directly or indirectly wholly owned by any Company;
(xii) any Intercompany Arrangement;
(xiii) any Collective Bargaining Agreement;
(xiv) any Contract under which Parent or any of its Affiliates (excluding the Companies), solely in connection with the Business, or any Company, directly or indirectly, has made or is required to make any loan, extension of credit or capital contribution to, or other investment in, any Person outside the Ordinary Course;
(xvix) all Contracts with any Material Customer or Material Vendor restricting or purporting to restrict the Business from engaging in or competing with any business activity in any geographic area, competing or engaging in any line of business, soliciting any business or customer, or soliciting for employment or hiring any Person (except for non-disclosure or confidentiality agreements with customary terms and conditions entered into in connection with potential acquisitions or dispositions area or otherwise in purporting to materially limit the Ordinary Course)conduct of the Business;
(xvix) all Contracts that require any Acquired Company or the Business to use any supplier or third party exclusively with respect to certain products or services or requires the Company to provide to other parties “most favored nation” pricing;
(xi) all Contracts requiring any capital commitment or capital expenditure (including any series of related expenditures) by any Acquired Company or relating to the Business of more than $500,000;
(xii) all Contracts providing for the acquisition or disposition of any business, Person, or assets material to the Business entered into since January 1, 2014;
(xiii) all Contracts material to an Acquired Company by which Parent or any of its Affiliates (excluding the Companies), solely in connection with the Business, or a Company it licenses Intellectual Property Rights from or to any Person that individually involve contractually obligated payments to or from the Business in excess of $500,000 on an annual basis, excluding (A) any Contracts non-exclusively licensing Intellectual Property Rights that is generally available; (B) non-exclusive licenses granted by or to Parent or any of its Affiliates (excluding the Companies), solely in connection with the Business, or the Companies to or from customers, vendors, resellers or distributors of the Business in the Ordinary Course, (C) confidentiality Contracts; (D) open source software licenses; and (E) commercial Contracts to the extent including ancillary, non-exclusive licenses granted in the Ordinary Course that are incidental to the primary purpose of the Contracts in which such licenses are grantedPerson; and
(xviixiv) all Contracts pursuant to which any Contract to enter into any third party creates, develops or customizes for or on behalf of the foregoingBusiness any Software that is material to the Business.
(b) All Business Contracts are in full force and effect in all material respects and, to assuming the Knowledge of Parentdue authorization, execution and delivery by any other party thereto, are currently enforceable in all material respects against the applicable Company Acquired Companies or one of its their respective Affiliates, as applicable, and, to the Knowledge of ParentSellers, as of the Closing will be, if not expired in the Ordinary Course pursuant to the terms of such Business Contractspreviously terminated or expired, enforceable in all material respects against the other party thereto in accordance with the express terms thereof, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights and to general principles of equity, except for such failures that would not, individually or in not be materially adverse to the aggregate, have a Material Adverse EffectBusiness. To the Knowledge of Parent, there There does not exist under any Business Contract any event of default, default or event or condition that, after notice or lapse of time or both, would constitute a violation, breach or event of default thereunder, and neither Parent nor any thereunder as of its Affiliates (excluding the Companies), solely in connection with the Business, nor any Company has received any written claim or written notice of breach of default under any Business Contract, Effective Date on the part of the Business, except as set forth on Schedule 3.13(b3.14(b) and except for such violations, breaches, defaults, events of default, events, conditions, violations or breaches conditions that would not, individually or in the aggregate, have a Material Adverse Effect. Parent has made available not be materially adverse to Buyer a true, correct and complete copy of each Business Contract (including any amendments, modifications and waivers thereto) that is in effect as of the date of this Agreement, and each Business Contract is adequately stamped where so required in any applicable jurisdiction under applicable Law.
(c) Except as disclosed on Schedule 3.13(c) or Schedule 3.13(a)(xv), there are no Contracts to which Parent or any of its Affiliates (excluding the Companies), solely in connection with the Business, is a party, any Company is a party, by which any Company or any property or asset thereof is subject, or by which the Business is otherwise bound that contains any right of first refusal, right of first offer, exclusivity right, most favored nations right or other similar right to purchase any of the properties or assets, or products or services of Parent and its Affiliates (excluding the Companies), solely in connection with the Business, or the Companies, or that restrict or purport to restrict the Business from engaging in or competing with any business activity in any geographic area, competing or engaging in any line of business, or soliciting any business or customer, in each case in a manner that would adversely affect the Business in any material respect.
(d) The Business as currently practiced and operated by Parent and its Subsidiaries does not violate Section 5.3 of the Separation and Distribution Agreement, by and between Parent and NCR Atleos Corporation, a Maryland corporation, dated October 16, 2023.
Appears in 1 contract