Company Material Contracts. (a) Section 3.11(a) of the Company Disclosure Schedule sets forth an accurate and complete list of each of the following Contracts (excluding work orders, purchase orders and similar items entered into pursuant to any of the following Contracts) by which the Company or any of its Subsidiaries is bound as of the date of this Agreement (other than any Company Benefit Plan or any Contract with Parent or any of its Affiliates but including any such agreements of the type described in Section 3.11(a)(xi) to which other third parties are also party) (each such Contract, a “Company Material Contract”): (i) any Contract that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities Act), other than any Contract that is disclosed on Section 3.11(a) of the Company Disclosure Schedule with respect to any other clause of this Section 3.11(a); (ii) any Contract (A) with a Company Top Customer that is reasonably expected to result in total annual revenue in excess of $100,000,000 or (B) with a Company Top Supplier (excluding, in each case, non-disclosure agreements); (iii) any Company Government Contract that is reasonably expected to result in total annual revenue in excess of $100,000,000 (each, a “Material Company Government Contract”); (iv) any Company Bid that, if accepted or awarded, would result in a Government Contract reasonably expected to result in total aggregate revenue in excess of $100,000,000 over the life of such Contract (each, a “Material Company Bid”); (v) any Contract (or group of related Contracts with respect to a single transaction or series of related transactions) that involves future payments, performance or services or delivery of assets to or by the Company or any of its Subsidiaries of any value reasonably expected to exceed $25,000,000 in any twelve (12)-month period after the date of this Agreement, other than any Contract that is disclosed on Section 3.11(a) of the Company Disclosure Schedule with respect to any other clause of this Section 3.11(a); (vi) any Contract for any Leased Real Property or the lease of personal property providing, in each case, for annual payments thereunder of $1,000,000 or more; (vii) any Contract (other than those solely between or among the Company and any of its Wholly Owned Subsidiaries and not for the benefit of any third party) relating to Indebtedness in excess of $10,000,000; (viii) any Contract evidencing financial or commodity hedging or similar trading activities, including any interest rate swaps, financial derivatives master agreements or confirmations, or futures account opening agreements or brokerage statements or similar Contract, in each case, that is material to the Company and its Subsidiaries (taken as a whole); (ix) any Contract pursuant to which the Company or any of its Subsidiaries receives or grants any license, ownership interest, or any other right to any Intellectual Property Right that is material to their businesses, excluding (A) non-exclusive licenses (1) granted to customers or suppliers or (2) granted by customers or suppliers to the Company or any of its Subsidiaries to enable it to fulfill its obligations under the Contract, in each case of clauses (1) and (2), in the ordinary course of business consistent with past practice, (B) non-exclusive licenses granted to the Company or any of its Subsidiaries to use commercially available software or IT Assets (including click-wrap, shrink-wrap and off-the-shelf licenses) and (C) Contracts with employees and contractors entered into in the ordinary course of business consistent with past practice (consistent in all material respects with forms of such Contracts made available to Parent or its outside legal counsel) under which such employees assign, or such contractors assign or license, to the Company or any of its Subsidiaries, their Intellectual Property Rights developed in the scope of their employment or engagement; (x) any Contract providing for the settlement of a Proceeding that materially restricts the Company’s or its Subsidiaries’ business or operations; (xi) any Contract providing for any material indemnification or guarantee obligations by the Company or any of its Subsidiaries of any Person that remain outstanding as of the date of this Agreement, other than any Contract that is disclosed on Section 3.11(a) of the Company Disclosure Schedule with respect to any other clause of this Section 3.11(a); (xii) any partnership, alliance, limited liability company, joint venture, joint research and development or other similar Contract, in each case, pursuant to which the Company or any of its Subsidiaries reasonably expects to make or receive payments or otherwise incur expenses in excess of $5,000,000 in any twelve (12)-month period after the date of this Agreement or that is otherwise material to any business segment of the Company, except for any such Contracts solely between the Company and any of its Wholly Owned Subsidiaries; (xiii) relating to the acquisition or disposition of any equity interests in or assets of, any Person, entered into since December 31, 2018, in each case with a fair market value or purchase price in excess of $5,000,000 or that has material continuing rights or obligations that remain in effect as of the date of this Agreement, other than the purchase or sale of inventory, supplies or other materials in the ordinary course; (xiv) any Contract that (A) purports to restrict, in any material respect, the ability of the Company or any of its Subsidiaries from (1) engaging in any business or competing in any business or geographic region or (2) operating its business in any manner (other than with respect to soliciting or hiring employees) or locations, (B) contains a “most favored nation” provision in favor of the counterparty thereto, (C) grants any right of first refusal, right of first offer, development rights or distribution rights to any Person or (D) includes “take or pay” requirements or similar provisions obligating the Company or any of its Subsidiaries to obtain a minimum quantity of goods or services from another Person (but not including, for the avoidance of doubt, obligations of the Company or any of its Subsidiaries solely to purchase from a supplier all goods or services specified in forecasts under supplemental procurement provisions placed in conjunction with a Contract between such supplier and the Company or any of its Subsidiaries); (xv) any Contract pursuant to which the Company or any of its Affiliates agrees to purchase all of its requirements for any goods or services exclusively from any Person or to sell to any Person all of such Person’s requirements for any goods or services (other than any such requirements that are specified in a Contract between the Company or one of its Subsidiaries and its respective customer) (but not including, for the avoidance of doubt, obligations of the Company or any of its Subsidiaries solely to purchase from a supplier all goods or services specified in forecasts under supplemental procurement provisions placed in conjunction with a Contract between such supplier and the Company or any of its Subsidiaries); (xvi) any Contract that prohibits the payment of dividends or distributions in respect of any equity interests of the Company or any of its Subsidiaries, the pledging of any equity interests of the Company or any of its Subsidiaries or the incurrence of Indebtedness by the Company or any of its Subsidiaries; (xvii) any Contract with any (A) executive officer or director of the Company, (B) Affiliate of the Company or (C) “associates” (or members of any of their “immediate family”) (as such terms are respectively defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) of any such executive officer, director or Affiliate, in each case (where such person is not a UK Company Employee), that would be required to be reported by the Company pursuant to Item 404 of Regulation S-K; and (xviii) any stockholders, voting, voting trust, investors’ rights, registration rights or similar agreement or arrangement. (b) Except to the extent prohibited by applicable national security or similar Law (for which anonymized or cleansed descriptions of such Contracts have been made available (including, for this purpose, orally, to Parent or its outside legal counsel, to the extent permitted by such Laws)), true, correct and complete copies of each Company Material Contract have been made available to Parent (or its outside legal counsel) prior to the execution of this Agreement. Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (i) each Company Material Contract and each Parent Commercial Contract is valid and binding on the Company or one or more of its Subsidiaries that is a party thereto, as the case may be, and, to the Knowledge of the Company, in the case of any Company Material Contract, the other parties thereto and is in full force and effect, except, in each case, subject to the Bankruptcy and Equity Exception and (ii) there is no breach or default under any Company Material Contract or any Parent Commercial Contract by the Company or any of its Subsidiaries or, to the Knowledge of the Company, in the case of any Company Material Contract, any other party thereto, and no event has occurred that, with the lapse of time or the giving of notice or both, would constitute or result in a breach or default under, or would permit the termination of, any such Contract by the Company or any of its Subsidiaries or, to the Knowledge of the Company, in the case of any Company Material Contract, any other party thereto. As of the date of this Agreement, no party to any Company Material Contract has given the Company or any of its Subsidiaries written notice of its intention to cancel, terminate, adversely amend in any respect, or fail to renew, any Company Material Contract, in each case except as would not be material to the Company and its Subsidiaries, taken as a whole.
Appears in 3 contracts
Sources: Merger Agreement (Boeing Co), Merger Agreement (Spirit AeroSystems Holdings, Inc.), Merger Agreement (Boeing Co)
Company Material Contracts. (ai) Except for this Agreement and except for Contracts filed as exhibits to the Company SEC Reports, Section 3.11(a3.01(w) of the Company Disclosure Schedule sets forth an accurate Letter contains a complete and complete list of each of the following Contracts (excluding work orderscorrect list, purchase orders and similar items entered into pursuant to any of the following Contracts) by which the Company or any of its Subsidiaries is bound as of the date of this Agreement (other than Agreement, of the following Contracts to which any Company Benefit Plan or any Contract with Parent of the Company, or any of its Affiliates but including the Company Joint Ventures is a party, by which any such agreements of the type described in Section 3.11(a)(xi) them is bound or to which other third parties are also party) any of their respective assets or properties is subject (each such Contract, together with each Contract filed as an exhibit to the Company SEC Reports, a “Company Material Contract”):
(iA) any each Contract that is would be a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities Act), SEC) but has not been filed as an exhibit to the Company SEC Reports;
(B) each Contract other than any Contract that is disclosed Company Employee Benefit Plans listed on Section 3.11(a3.01(l)(i) of the Company Disclosure Schedule with Letter, that (1) limits in any material respect to any other clause either the type of this Section 3.11(a);
(ii) any Contract (A) with a Company Top Customer that is reasonably expected to result business in total annual revenue in excess of $100,000,000 or (B) with a Company Top Supplier (excluding, in each case, non-disclosure agreements);
(iii) any Company Government Contract that is reasonably expected to result in total annual revenue in excess of $100,000,000 (each, a “Material Company Government Contract”);
(iv) any Company Bid that, if accepted or awarded, would result in a Government Contract reasonably expected to result in total aggregate revenue in excess of $100,000,000 over the life of such Contract (each, a “Material Company Bid”);
(v) any Contract (or group of related Contracts with respect to a single transaction or series of related transactions) that involves future payments, performance or services or delivery of assets to or by which the Company or any Company Joint Venture (or, after the Effective Time, Parent or its subsidiaries) or any of its Subsidiaries their respective affiliates may engage or the manner or geographic area in which any of any value reasonably expected to exceed $25,000,000 them may so engage in any twelve business; (12)-month period after the date of this Agreement, other than any Contract that is disclosed on Section 3.11(a2) of obligates the Company Disclosure Schedule or any Company Joint Venture to conduct business on an exclusive or preferential basis with respect to any other clause of this Section 3.11(a);
(vi) any Contract for any Leased Real Property or the lease of personal property providing, in each case, for annual payments thereunder of $1,000,000 or more;
(vii) any Contract (other than those solely between or among the Company and any of its Wholly Owned Subsidiaries and not for the benefit of any third party; (3) relating to Indebtedness in excess of $10,000,000;
(viii) any Contract evidencing financial or commodity hedging contains a put, call or similar trading activities, including any interest rate swaps, financial derivatives master agreements or confirmations, or futures account opening agreements or brokerage statements or similar Contract, in each case, that is material to the Company and its Subsidiaries (taken as a whole);
(ix) any Contract right pursuant to which the Company could be required to purchase or sell, as applicable, any equity interests of its Subsidiaries receives any person or assets; (4) grants “most favored nation” status of any license, ownership interest, or any other right to any Intellectual Property Right that is material to their businesses, excluding (A) non-exclusive licenses (1) granted to customers or suppliers or (2) granted by customers or suppliers to the Company or any of its Subsidiaries to enable it to fulfill its obligations under the Contract, in each case of clauses (1) and (2), in the ordinary course of business consistent with past practice, (B) non-exclusive licenses granted to the Company or any of its Subsidiaries to use commercially available software or IT Assets (including click-wrap, shrink-wrap and off-the-shelf licenses) and (C) Contracts with employees and contractors entered into in the ordinary course of business consistent with past practice (consistent in all material respects with forms of such Contracts made available to Parent or its outside legal counsel) under which such employees assign, or such contractors assign or license, to the Company or any of its Subsidiaries, their Intellectual Property Rights developed in the scope of their employment or engagement;
(x) any Contract providing for the settlement of a Proceeding that materially restricts the Company’s or its Subsidiaries’ business or operations;
(xi) any Contract providing for any material indemnification or guarantee obligations type by the Company to any person; (5) involves more than $250,000 in the past year or any of its Subsidiaries of any Person that remain outstanding as is reasonably expected to involve more than $500,000 within one year of the date of this Agreement, other than any Contract except, in the case of this clause (5), (i) all purchase orders or invoices or (ii) Contracts that is disclosed on Section 3.11(a) of cannot be terminated by the Company Disclosure Schedule with respect on less than ninety (90) days’ notice without material payment or penalty, in each case that involves more than $250,000 in the past year or is reasonably expected to any other clause of this Section 3.11(a);
involve more than $1,000,000 in the aggregate; (xii6) any partnership, alliance, limited liability company, joint venture, joint research and development includes an earn-out or other similar Contract, in each case, pursuant to which provision; (7) between the Company or any Company Joint Venture, on the one hand, and any director, officer or affiliate of its Subsidiaries reasonably expects to make or receive payments or otherwise incur expenses in excess of $5,000,000 in any twelve (12)-month period after the date of this Agreement or that is otherwise material to any business segment of the Company, except for any such Contracts solely between the Company and any of its Wholly Owned Subsidiaries;
(xiii) relating to the acquisition or disposition of any equity interests in or assets of, any Person, entered into since December 31, 2018, in each case with a fair market value or purchase price in excess of $5,000,000 or that has material continuing rights or obligations that remain in effect as of the date of this Agreement, other than the purchase or sale of inventory, supplies or other materials in the ordinary course;
(xiv) any Contract that (A) purports to restrict, in any material respect, the ability of the Company foregoing or any of its Subsidiaries from (1) engaging in any business or competing in any business or geographic region or (2) operating its business in any manner (other than with respect to soliciting or hiring employees) or locations, (B) contains a “most favored nation” provision in favor of the counterparty thereto, (C) grants any right of first refusal, right of first offer, development rights or distribution rights to any Person or (D) includes “take or pay” requirements or similar provisions obligating the Company or any of its Subsidiaries to obtain a minimum quantity of goods or services from another Person (but not including, for the avoidance of doubt, obligations of the Company or any of its Subsidiaries solely to purchase from a supplier all goods or services specified in forecasts under supplemental procurement provisions placed in conjunction with a Contract between such supplier and the Company or any of its Subsidiaries);
(xv) any Contract pursuant to which the Company or any of its Affiliates agrees to purchase all of its requirements for any goods or services exclusively from any Person or to sell to any Person all of such Person’s requirements for any goods or services (other than any such requirements that are specified in a Contract between the Company or one of its Subsidiaries and its their respective customer) (but not including, for the avoidance of doubt, obligations of the Company or any of its Subsidiaries solely to purchase from a supplier all goods or services specified in forecasts under supplemental procurement provisions placed in conjunction with a Contract between such supplier and the Company or any of its Subsidiaries);
(xvi) any Contract that prohibits the payment of dividends or distributions in respect of any equity interests of the Company or any of its Subsidiaries, the pledging of any equity interests of the Company or any of its Subsidiaries or the incurrence of Indebtedness by the Company or any of its Subsidiaries;
(xvii) any Contract with any (A) executive officer or director of the Company, (B) Affiliate of the Company or (C) “associates” (or members of any of their “immediate family”) ” members (as such terms are respectively defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand, including any Contract pursuant to which the Company or any Company Joint Venture has an obligation to indemnify any such person; (8) pursuant to which (x) the Company has granted to any person any license or other right, title or interest (including any assignment or covenant not to ▇▇▇) in or to any Intellectual Property rights that are material to and owned by the Company, other than pursuant to Contracts granting non-exclusive rights that are substantially in the form of one of the Company’s standard Contracts (which have been made available to Parent), clinical trial agreements, material transfer agreements, and non-disclosure agreements that are entered into in the ordinary course of business, or (y) a third party has granted to the Company any license or other right, title or interest (including any assignment or covenant not to ▇▇▇) in or to any Intellectual Property rights that are material to the Company, other than non-exclusive licenses of software (including software licensed through software as a service arrangements) that are generally commercially available or non-exclusive licenses granted to the Company as an end user customer in the ordinary course of business consistent with past practice; (9) involves any material research or development activity conducted by, for or with the Company that is material to the Company, including any material joint development agreement; or (10) is a “single-source” supply Contract, pursuant to which goods or materials are supplied to the Company from an exclusive source and is incorporated in Company products or on which the Company is materially dependent that cannot be replaced from other sources on commercially reasonable terms and in a reasonably timely manner;
(C) each Contract, excluding Leases, that (1) has an aggregate principal amount, or provides for an aggregate obligation, in excess of $250,000 (I) evidencing indebtedness for borrowed money of the Company to any third party, (II) guaranteeing any such indebtedness of a third party, (III) containing a covenant restricting the payment of dividends or distributions in respect of the capital stock of the Company or the Company Joint Ventures, prohibiting the pledging of capital stock of the Company or the Company Joint Ventures, (IV) obligating the Company to make any capital commitment or capital expenditure, or (2) has the economic effect of any such executive officer, director or Affiliate, of the items set forth in each case subclause (where such person is not a UK Company Employee), that would be required to be reported by the Company pursuant to Item 404 of Regulation S-K; and1) above;
(xviiiD) any stockholders, voting, voting trust, investors’ investor rights, registration rights or similar agreement or arrangement;
(E) any material collective bargaining agreement or other material Contract with any labor union;
(F) any partnership or joint venture that is material to the Company; and
(G) each Contract with any Governmental Authority (other than clinical trial agreements).
(bii) Except The Company has provided to Parent prior to the extent prohibited by applicable national security or similar Law (for which anonymized or cleansed descriptions date of such Contracts have been made available (including, for this purpose, orally, to Parent or its outside legal counsel, to the extent permitted by such Laws)), true, correct Agreement a true and complete copies completed copy of each Company Material Contract have been made available to Parent (or its outside legal counsel) prior to as in effect on the execution date of this Agreement. Except as Neither the Company nor any Company Joint Venture is in material breach of or default under the terms of any Company Material Contract and no event has occurred that (with or without notice or lapse of time or both) would not reasonably be expected to result in a breach or default under any Company Material Contract where such breach or default would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. To the knowledge of the Company, (i) each no other party to any Company Material Contract and each Parent Commercial is in breach of or default under the terms of any Company Material Contract where such breach or default has had, or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Company Material Contract is a valid and binding on obligation of the Company or one or more of its Subsidiaries that the Company Joint Venture which is a party thereto, as the case may be, thereto and, to the Knowledge knowledge of the Company, in the case of any Company Material Contracteach other party thereto, the other parties thereto and is in full force and effect, except, in each case, except that such enforcement may be subject to the Bankruptcy and Equity Exception and (ii) there is no breach applicable bankruptcy, insolvency, reorganization, moratorium or default under any Company Material Contract or any Parent Commercial Contract by the Company or any of its Subsidiaries or, other similar laws relating to the Knowledge of the Company, in the case of any Company Material Contract, any other party theretocreditors’ rights generally, and no event has occurred that, with the lapse of time or the giving of notice or both, would constitute or result in a breach or default under, or would permit the termination of, any such Contract by the Company or any of its Subsidiaries or, to the Knowledge of the Company, in the case of any Company Material Contract, any other party thereto. As of the date of this Agreement, no party to any Company Material Contract has given the Company or any of its Subsidiaries written notice of its intention to cancel, terminate, adversely amend in any respect, or fail to renew, any Company Material Contract, in each case except as would not be material to the Company and its Subsidiaries, taken as a wholegeneral equitable principles.
Appears in 1 contract
Sources: Merger Agreement (Avedro Inc)
Company Material Contracts. (a) Except as set forth in Section 3.11(a) 4.19 of the Company Disclosure Schedule sets forth an accurate and complete list of each of the following Contracts (excluding work ordersSchedules, purchase orders and similar items entered into pursuant to any of the following Contracts) by which the Company or any of its Subsidiaries is bound as of the date of this Agreement Date no Company Entity is a party to, nor is it or its properties, rights or assets bound by, any Contract (other than any Company Benefit Plan or any Contract with Parent or any of its Affiliates but including any such agreements Employee Plan) of the type following nature (such Contracts as described in this Section 3.11(a)(xi) to which other third parties are also party) (each such Contract4.19(a), a whether or not disclosed on Section 4.19 of the Company Disclosure Schedules, being “Company Material ContractContracts”):
(i) any Contract that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities Act), other than any Contract that is disclosed on Section 3.11(a) of all Contracts which are expected to involve payment or receipt by the Company Disclosure Schedule Entities of more than $750,000 in the aggregate for any individual Contract or series of related Contracts during the fiscal year ended December 31, 2020, that are not terminable by such Company Entity party thereto without material penalty on ninety (90) days’ or less notice, including any such contracts and agreements with respect to any other clause of this Section 3.11(a)customers;
(ii) any Contract all Contracts (A) with relating to the incurrence, assumption or guarantee of any Indebtedness (including any Securitization Transactions) or imposing a Lien or security interest in or on any of the assets of the Company Top Customer that is reasonably expected to result in total annual revenue in excess Entities, including any mortgages, deeds of $100,000,000 trust or (B) with a Company Top Supplier (excludingsimilar security instruments, indentures, guarantees, loan or credit agreements, in each case, nonin excess of $750,000 (such Indebtedness, “Existing Company Indebtedness” and such Contracts, the “Existing Company Loan Documents”) and (B) pursuant to which a Company Entity provided funds to or made any loan, capital contribution or other investment in, or assumed any liability or obligation of, any Person, including take-disclosure or-pay contracts or keepwell agreements), in each case, in excess of $750,000;
(iii) any Company Government Contract that is reasonably expected limits the ability of any Company Entity to result compete in total annual revenue any line of business or with any Person or in excess any geographic area or during any period of $100,000,000 time, or that restricts the right of any Company Entity to sell to, or purchase from, any Person or to hire any Person (eachincluding any exclusivity provisions), a or that grants the other party or any third person “Material Company Government Contract”)most favored nation” status or any type of special discount rights;
(iv) any Company Bid thatall material joint venture, if accepted partnership or awardedsimilar Contracts, would result in a Government Contract reasonably expected to result in total aggregate revenue in excess of $100,000,000 over the life of such Contract (each, a “Material Company Bid”)agreements or arrangements;
(v) any Contract (Contracts relating to capital expenditures or group the acquisition of related Contracts with respect to a single transaction or series fixed assets, in each case, in excess of related transactions) that involves future payments, performance or services or delivery of assets to or by the Company or any of its Subsidiaries of any value reasonably expected to exceed $25,000,000 in any twelve (12)-month period after the date of this Agreement, other than any Contract that is disclosed on Section 3.11(a) of the Company Disclosure Schedule with respect to any other clause of this Section 3.11(a)750,000;
(vi) any Contract for relating to the acquisition by the Company Entities thereto of any Leased Real Property material operating business or the lease capital stock of personal property providing, in each case, for annual payments thereunder of $1,000,000 or moreany other Person that have ongoing obligations;
(vii) Contracts providing for (A) the pending purchase, sale, assignment or ground leasing or disposition of any Contract Company Owned Real Property or material tangible personal property or (other than those solely between B), except as set forth in any Company Real Property Lease, a buy/sell, put option, call option, option to purchase, a marketing right, a forced sale, tag or among the Company and drag right, or a right of first offer, right of first refusal or right that is similar to any of its Wholly Owned Subsidiaries and not for the benefit foregoing, pursuant to the terms of which a Company Entity could be required to purchase or sell the applicable equity interests of any third party) relating Person, any Real Property or any other material asset to Indebtedness in excess of $10,000,000which such right relates;
(viii) any Contract evidencing financial or commodity hedging or similar trading activities, including any interest rate swaps, financial derivatives master agreements or confirmations, or futures account opening agreements or brokerage statements or similar Contract, in each case, that is material to the Company and its Subsidiaries (taken as a whole)Real Property Lease;
(ix) Contracts relating to the lease of tangible personal property to or from any Person providing for lease payments in excess of $250,000 per year;
(x) Contracts providing for the provision of advertising services and involving the payment or receipt over the life of such Contract pursuant in excess of $150,000 by a Company Entity;
(xi) material Contracts relating to which the Company Intellectual Property, Personal Data or any of its Subsidiaries receives or grants any license, ownership interest, or any other right to any Intellectual Property Right that is material to their businessesIT Systems, excluding (Ai) commercially available, off-the-shelf, non-exclusive software licenses (1) granted to customers or suppliers or (2) granted by customers or suppliers to the Company or any Entities which involve payments in the current fiscal year of its Subsidiaries to enable it to fulfill its obligations under the Contract, in each case of clauses (1) less than $150,000 and (2), in the ordinary course of business consistent with past practice, (Bii) non-exclusive licenses granted to by the Company or any of its Subsidiaries Entities to use commercially available software or IT Assets (including click-wrap, shrink-wrap and off-the-shelf licenses) and (C) Contracts with employees and contractors entered into customers in the ordinary course of business consistent with past practice (consistent in all material respects with forms of such Contracts made available to Parent or its outside legal counsel) under which such employees assign, or such contractors assign or license, to the Company or any of its Subsidiaries, their Intellectual Property Rights developed in the scope of their employment or engagement;
(x) any Contract providing for the settlement of a Proceeding that materially restricts the Company’s or its Subsidiaries’ business or operations;
(xi) any Contract providing for any material indemnification or guarantee obligations by the Company or any of its Subsidiaries of any Person that remain outstanding as of the date of this Agreement, other than any Contract that is disclosed on Section 3.11(a) of the Company Disclosure Schedule with respect to any other clause of this Section 3.11(a)business;
(xii) any partnership, alliance, limited liability company, joint venture, joint research and development or other similar Contract, in each case, pursuant to which the Company or any of its Subsidiaries reasonably expects to make or receive payments or otherwise incur expenses in excess of $5,000,000 in any twelve (12)-month period after the date of this Agreement or that is otherwise material to any business segment of the Company, except for any such Contracts solely between the Company and any of its Wholly Owned SubsidiariesCollective Bargaining Agreement;
(xiii) any Contract providing for indemnification to or from any Person with respect to liabilities relating to the acquisition any current or disposition former business of a Company Entity or any equity interests in or assets of, any predecessor Person, entered into since December 31, 2018, in each case with a fair market value or purchase price in excess of $5,000,000 or that has material continuing rights or obligations that remain in effect as of the date of this Agreement, other than Contracts entered into on substantially the purchase or sale of inventory, supplies or other materials in same form as the ordinary courseCompany Entities’ standard forms previously made available to Parent;
(xiv) any Contract that (A) purports to restrict, in with any material respect, the ability officers or directors of the Company Entities or with any of its Subsidiaries from (1) engaging in any business Affiliate or competing in any business or geographic region or (2) operating its business in any manner (other than with respect to soliciting or hiring employees) or locations, (B) contains a “most favored nation” provision in favor of the counterparty thereto, (C) grants any right of first refusal, right of first offer, development rights or distribution rights to any Person or (D) includes “take or pay” requirements or similar provisions obligating the Company or any of its Subsidiaries to obtain a minimum quantity of goods or services from another Person (but not including, for the avoidance of doubt, obligations Related Party of the Company Entities or any of its Subsidiaries solely to purchase from a supplier all goods officers or services specified in forecasts under supplemental procurement provisions placed in conjunction with a Contract between such supplier and the Company or any of its Subsidiaries)directors thereof;
(xv) any material Contract pursuant to which the between a Company or any of its Affiliates agrees to purchase all of its requirements for any goods or services exclusively from Entity and any Person or to sell to any Person all of such Person’s requirements for any goods or services (other than any such requirements that are specified in a Contract between the Company or one of its Subsidiaries and its respective customer) (but not including, for the avoidance of doubt, obligations of the Company or any of its Subsidiaries solely to purchase from a supplier all goods or services specified in forecasts under supplemental procurement provisions placed in conjunction with a Contract between such supplier and the Company or any of its Subsidiaries)providing an Exchange Program;
(xvi) any Contract that prohibits the payment of dividends or distributions in respect of any equity interests of the Company or any of its Subsidiaries, the pledging of any equity interests of the Company or any of its Subsidiaries or the incurrence of Indebtedness by the Company or any of its Subsidiaries;Management Agreement; and
(xvii) material Contracts with, or material licenses from, any Contract with any (A) executive officer or director of the Company, (B) Affiliate of the Company or (C) “associates” (or members of any of their “immediate family”) (as such terms are respectively defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) of any such executive officer, director or Affiliate, in each case (where such person is not a UK Company Employee), that would be required to be reported by the Company pursuant to Item 404 of Regulation S-K; and
(xviii) any stockholders, voting, voting trust, investors’ rights, registration rights or similar agreement or arrangementGovernmental Authority.
(b) Except to the extent prohibited by applicable national security or similar Law (for which anonymized or cleansed descriptions of such Contracts have been made available (including, for this purpose, orally, to Parent or its outside legal counsel, to the extent permitted by such Laws)), true, correct and complete copies of each Each Company Material Contract have been made available to Parent (or other than any Company Material Contract that has expired in accordance with its outside legal counselterms) prior to the execution of this Agreement. Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (i) each Company Material Contract and each Parent Commercial Contract is legal, valid and binding on the on, and enforceable against, such Company or one or more of its Subsidiaries that is a party thereto, as the case may beEntity, and, to the Knowledge of the Company, in the case of any Company Material Contractcounterparties thereto, the other parties thereto and is in full force and effect, excepteffect except to the extent that enforceability may be limited by applicable Equitable Principles) and (ii) shall continue in full force and effect upon consummation of the transactions contemplated by this Agreement, in each case, subject except where the failure thereof, individually or in the aggregate with any other such failures, is not material to the Bankruptcy and Equity Exception and (ii) there is no breach or default under any Company Material Contract or any Parent Commercial Contract by the Entities, taken as a whole. No Company or any of its Subsidiaries Entity, or, to the Knowledge of the Company, any other party is in the case breach or violation of, or (with or without notice or lapse of time or both) default under, any Company Material Contract, nor has any other party thereto, and no event has occurred that, with the lapse of time or the giving of notice or both, would constitute or result in a breach or default under, or would permit the termination of, Company Entity received any such Contract by the Company or any of its Subsidiaries written or, to the Knowledge of the Company, in the case oral, claim of any Company Material Contractsuch breach, any other party thereto. As of the date of this Agreement, violation or default and no party to any a Company Material Contract has given written or, to the Company or any Knowledge of its Subsidiaries written the Company, oral, notice of its intention an intent to cancel, terminate, adversely amend in any respect, terminate or fail not to renew, any renew a Company Material Contract, except where such breach, violation, default, claim or notice, individually or in each case except as would the aggregate with any other such breaches, violations, defaults, claims, or notices, is not be material to the Company and its SubsidiariesEntities, taken as a whole. The Company has made available to Parent true and complete and correct copies of each Company Material Contract (including all modifications, amendments and supplements thereto) as of the Agreement Date. For purposes of this subsection (b), all Securitization Instruments shall be excluded from references to Company Material Contracts.
Appears in 1 contract
Company Material Contracts. (ai) Except for this Agreement and except for Contracts filed as exhibits to the Company SEC Reports, Section 3.11(a3.01(w) of the Company Disclosure Schedule sets forth an accurate Letter contains a complete and complete list of each of the following Contracts (excluding work orderscorrect list, purchase orders and similar items entered into pursuant to any of the following Contracts) by which the Company or any of its Subsidiaries is bound as of the date of this Agreement (other than Agreement, of the following Contracts to which any Company Benefit Plan or any Contract with Parent of the Company, or any of its Affiliates but including the Company Joint Ventures is a party, by which any such agreements of the type described in Section 3.11(a)(xi) them is bound or to which other third parties are also party) any of their respective assets or properties is subject (each such Contract, together with each Contract filed as an exhibit to the Company SEC Reports, a “"Company Material Contract”"):
(iA) any each Contract that is would be a “"material contract” " (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities Act), SEC) but has not been filed as an exhibit to the Company SEC Reports;
(B) each Contract other than any Contract that is disclosed Company Employee Benefit Plans listed on Section 3.11(a3.01(l)(i) of the Company Disclosure Schedule with Letter, that (1) limits in any material respect to any other clause either the type of this Section 3.11(a);
(ii) any Contract (A) with a Company Top Customer that is reasonably expected to result business in total annual revenue in excess of $100,000,000 or (B) with a Company Top Supplier (excluding, in each case, non-disclosure agreements);
(iii) any Company Government Contract that is reasonably expected to result in total annual revenue in excess of $100,000,000 (each, a “Material Company Government Contract”);
(iv) any Company Bid that, if accepted or awarded, would result in a Government Contract reasonably expected to result in total aggregate revenue in excess of $100,000,000 over the life of such Contract (each, a “Material Company Bid”);
(v) any Contract (or group of related Contracts with respect to a single transaction or series of related transactions) that involves future payments, performance or services or delivery of assets to or by which the Company or any Company Joint Venture (or, after the Effective Time, Parent or its subsidiaries) or any of its Subsidiaries their respective affiliates may engage or the manner or geographic area in which any of any value reasonably expected to exceed $25,000,000 them may so engage in any twelve business; (12)-month period after the date of this Agreement, other than any Contract that is disclosed on Section 3.11(a2) of obligates the Company Disclosure Schedule or any Company Joint Venture to conduct business on an exclusive or preferential basis with respect to any other clause of this Section 3.11(a);
(vi) any Contract for any Leased Real Property or the lease of personal property providing, in each case, for annual payments thereunder of $1,000,000 or more;
(vii) any Contract (other than those solely between or among the Company and any of its Wholly Owned Subsidiaries and not for the benefit of any third party; (3) relating to Indebtedness in excess of $10,000,000;
(viii) any Contract evidencing financial or commodity hedging contains a put, call or similar trading activities, including any interest rate swaps, financial derivatives master agreements or confirmations, or futures account opening agreements or brokerage statements or similar Contract, in each case, that is material to the Company and its Subsidiaries (taken as a whole);
(ix) any Contract right pursuant to which the Company could be required to purchase or sell, as applicable, any equity interests of its Subsidiaries receives any person or assets; (4) grants "most favored nation" status of any license, ownership interest, or any other right to any Intellectual Property Right that is material to their businesses, excluding (A) non-exclusive licenses (1) granted to customers or suppliers or (2) granted by customers or suppliers to the Company or any of its Subsidiaries to enable it to fulfill its obligations under the Contract, in each case of clauses (1) and (2), in the ordinary course of business consistent with past practice, (B) non-exclusive licenses granted to the Company or any of its Subsidiaries to use commercially available software or IT Assets (including click-wrap, shrink-wrap and off-the-shelf licenses) and (C) Contracts with employees and contractors entered into in the ordinary course of business consistent with past practice (consistent in all material respects with forms of such Contracts made available to Parent or its outside legal counsel) under which such employees assign, or such contractors assign or license, to the Company or any of its Subsidiaries, their Intellectual Property Rights developed in the scope of their employment or engagement;
(x) any Contract providing for the settlement of a Proceeding that materially restricts the Company’s or its Subsidiaries’ business or operations;
(xi) any Contract providing for any material indemnification or guarantee obligations type by the Company to any person; (5) involves more than $250,000 in the past year or any of its Subsidiaries of any Person that remain outstanding as is reasonably expected to involve more than $500,000 within one year of the date of this Agreement, other than any Contract except, in the case of this clause (5), (i) all purchase orders or invoices or (ii) Contracts that is disclosed on Section 3.11(a) of cannot be terminated by the Company Disclosure Schedule with respect on less than ninety (90) days' notice without material payment or penalty, in each case that involves more than $250,000 in the past year or is reasonably expected to any other clause of this Section 3.11(a);
involve more than $1,000,000 in the aggregate; (xii6) any partnership, alliance, limited liability company, joint venture, joint research and development includes an earn-out or other similar Contract, in each case, pursuant to which provision; (7) between the Company or any Company Joint Venture, on the one hand, and any director, officer or affiliate of its Subsidiaries reasonably expects to make or receive payments or otherwise incur expenses in excess of $5,000,000 in any twelve (12)-month period after the date of this Agreement or that is otherwise material to any business segment of the Company, except for any such Contracts solely between the Company and any of its Wholly Owned Subsidiaries;
(xiii) relating to the acquisition or disposition of any equity interests in or assets of, any Person, entered into since December 31, 2018, in each case with a fair market value or purchase price in excess of $5,000,000 or that has material continuing rights or obligations that remain in effect as of the date of this Agreement, other than the purchase or sale of inventory, supplies or other materials in the ordinary course;
(xiv) any Contract that (A) purports to restrict, in any material respect, the ability of the Company foregoing or any of its Subsidiaries from (1) engaging in any business their respective "associates" or competing in any business or geographic region or (2) operating its business in any manner (other than with respect to soliciting or hiring employees) or locations, (B) contains a “most favored nation” provision in favor of the counterparty thereto, (C) grants any right of first refusal, right of first offer, development rights or distribution rights to any Person or (D) includes “take or pay” requirements or similar provisions obligating the Company or any of its Subsidiaries to obtain a minimum quantity of goods or services from another Person (but not including, for the avoidance of doubt, obligations of the Company or any of its Subsidiaries solely to purchase from a supplier all goods or services specified in forecasts under supplemental procurement provisions placed in conjunction with a Contract between such supplier and the Company or any of its Subsidiaries);
(xv) any Contract pursuant to which the Company or any of its Affiliates agrees to purchase all of its requirements for any goods or services exclusively from any Person or to sell to any Person all of such Person’s requirements for any goods or services (other than any such requirements that are specified in a Contract between the Company or one of its Subsidiaries and its respective customer) (but not including, for the avoidance of doubt, obligations of the Company or any of its Subsidiaries solely to purchase from a supplier all goods or services specified in forecasts under supplemental procurement provisions placed in conjunction with a Contract between such supplier and the Company or any of its Subsidiaries);
(xvi) any Contract that prohibits the payment of dividends or distributions in respect of any equity interests of the Company or any of its Subsidiaries, the pledging of any equity interests of the Company or any of its Subsidiaries or the incurrence of Indebtedness by the Company or any of its Subsidiaries;
(xvii) any Contract with any (A) executive officer or director of the Company, (B) Affiliate of the Company or (C) “associates” (or members of any of their “"immediate family”) " members (as such terms are respectively defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand, including any Contract pursuant to which the Company or any Company Joint Venture has an obligation to indemnify any such person; (8) pursuant to which (x) the Company has granted to any person any license or other right, title or interest (including any assignment or covenant not to ▇▇▇) in or to any Intellectual Property rights that are material to and owned by the Company, other than pursuant to Contracts granting non-exclusive rights that are substantially in the form of one of the Company's standard Contracts (which have been made available to Parent), clinical trial agreements, material transfer agreements, and non-disclosure agreements that are entered into in the ordinary course of business, or (y) a third party has granted to the Company any license or other right, title or interest (including any assignment or covenant not to ▇▇▇) in or to any Intellectual Property rights that are material to the Company, other than non-exclusive licenses of software (including software licensed through software as a service arrangements) that are generally commercially available or non-exclusive licenses granted to the Company as an end user customer in the ordinary course of business consistent with past practice; (9) involves any material research or development activity conducted by, for or with the Company that is material to the Company, including any material joint development agreement; or (10) is a "single-source" supply Contract, pursuant to which goods or materials are supplied to the Company from an exclusive source and is incorporated in Company products or on which the Company is materially dependent that cannot be replaced from other sources on commercially reasonable terms and in a reasonably timely manner;
(C) each Contract, excluding Leases, that (1) has an aggregate principal amount, or provides for an aggregate obligation, in excess of $250,000 (I) evidencing indebtedness for borrowed money of the Company to any third party, (II) guaranteeing any such indebtedness of a third party, (III) containing a covenant restricting the payment of dividends or distributions in respect of the capital stock of the Company or the Company Joint Ventures, prohibiting the pledging of capital stock of the Company or the Company Joint Ventures, (IV) obligating the Company to make any capital commitment or capital expenditure, or (2) has the economic effect of any such executive officer, director or Affiliate, of the items set forth in each case subclause (where such person is not a UK Company Employee), that would be required to be reported by the Company pursuant to Item 404 of Regulation S-K; and1) above;
(xviiiD) any stockholders, voting, voting trust, investors’ investor rights, registration rights or similar agreement or arrangement;
(E) any material collective bargaining agreement or other material Contract with any labor union;
(F) any partnership or joint venture that is material to the Company; and
(G) each Contract with any Governmental Authority (other than clinical trial agreements).
(bii) Except The Company has provided to Parent prior to the extent prohibited by applicable national security or similar Law (for which anonymized or cleansed descriptions date of such Contracts have been made available (including, for this purpose, orally, to Parent or its outside legal counsel, to the extent permitted by such Laws)), true, correct Agreement a true and complete copies completed copy of each Company Material Contract have been made available to Parent (or its outside legal counsel) prior to as in effect on the execution date of this Agreement. Except as Neither the Company nor any Company Joint Venture is in material breach of or default under the terms of any Company Material Contract and no event has occurred that (with or without notice or lapse of time or both) would not reasonably be expected to result in a breach or default under any Company Material Contract where such breach or default would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. To the knowledge of the Company, (i) each no other party to any Company Material Contract and each Parent Commercial is in breach of or default under the terms of any Company Material Contract where such breach or default has had, or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Company Material Contract is a valid and binding on obligation of the Company or one or more of its Subsidiaries that the Company Joint Venture which is a party thereto, as the case may be, thereto and, to the Knowledge knowledge of the Company, in the case of any Company Material Contracteach other party thereto, the other parties thereto and is in full force and effect, except, in each case, except that such enforcement may be subject to the Bankruptcy and Equity Exception and (ii) there is no breach applicable bankruptcy, insolvency, reorganization, moratorium or default under any Company Material Contract or any Parent Commercial Contract by the Company or any of its Subsidiaries or, other similar laws relating to the Knowledge of the Company, in the case of any Company Material Contract, any other party theretocreditors' rights generally, and no event has occurred that, with the lapse of time or the giving of notice or both, would constitute or result in a breach or default under, or would permit the termination of, any such Contract by the Company or any of its Subsidiaries or, to the Knowledge of the Company, in the case of any Company Material Contract, any other party thereto. As of the date of this Agreement, no party to any Company Material Contract has given the Company or any of its Subsidiaries written notice of its intention to cancel, terminate, adversely amend in any respect, or fail to renew, any Company Material Contract, in each case except as would not be material to the Company and its Subsidiaries, taken as a wholegeneral equitable principles.
Appears in 1 contract
Sources: Merger Agreement (GLAUKOS Corp)