Contracts. (a) Part 2.10(a) of the Company Disclosure Schedule identifies, as of the date of this Agreement, each Company Contract that constitutes a Company Material Contract and which remains in effect as of the date hereof and under which a Tetraphase Company has remaining material rights or obligations. For purposes of this Agreement, each of the following Company Contracts shall be deemed to constitute a “Company Material Contract”: (i) any Contract in effect and which has been filed (or is required to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Act, or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange Act; (ii) any Contract: (A) constituting a Company Employee Agreement under which annual salary or other stated annual cash compensation exceeds $200,000; (B) pursuant to which any of the Tetraphase Companies is or may become obligated to make any severance, termination or similar payment to any Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) above; (iii) any Contract with any labor union or any collective bargaining agreement or similar Contract for the benefit of any Company Associate(s); (iv) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software); (v) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Company; (vi) any material Contract with any distributor and any material contract with any other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business; (vii) any material Contract (other than any purchase order entered into in the ordinary course of business) with sole source or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business; (viii) any Contract that provides for: (A) reimbursement of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate; (ix) any Contract (A) that restricts the ability of the Tetraphase Companies to compete in any business or with any Person in any geographical area; (B) in which the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted; (x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into in the ordinary course of business or that do not deviate in any material respect from the standard forms of Contracts previously Made Available by the Company to Parent; (xi) any Contract providing for any currency hedging; (xii) any Contract requiring that any of the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction; (xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property; (xiv) any Contract that is a Government Contract; (xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2019; (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (xvi) any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company); and (xvii) any Contract, the termination of which would have a Company Material Adverse Effect. The Company has delivered or Made Available (including by filing with the SEC) to Parent an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as of the date of this Agreement. (b) Each Company Contract that constitutes a Company Material Contract is valid and in full force and effect (except for Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period), and is enforceable in accordance with its terms, subject to: (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”). (c) Except as set forth in Part 2.10(c) of the Company Disclosure Schedule: (i) none of the Tetraphase Companies has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (ii) to the knowledge of the Company, no other Person has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (iii) to the knowledge of the Company, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) would reasonably be expected to: (A) result in a violation or breach in any material respect of any Company Material Contract; (B) give any Person the right to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received any written notice (or, to the knowledge of the Company, any other communication) regarding any actual or possible material violation or breach of, or material default under, any Company Material Contract.
Appears in 4 contracts
Sources: Merger Agreement (La Jolla Pharmaceutical Co), Merger Agreement (Tetraphase Pharmaceuticals Inc), Merger Agreement (Acelrx Pharmaceuticals Inc)
Contracts. (a) Part 2.10(aSeller has made available to Purchaser true and complete copies of all Transferred Contracts. The Transferred Contracts constitute all of the material Contracts owned or controlled by Seller and the Divesting Entities related to the Business, and neither Seller nor any Divesting Entity is party to any material Contract related to the Business that does not constitute a Transferred Contract. Except as disclosed on Section 4.08(a) of the Company Disclosure Schedule identifiesSchedules, as of the date of this Agreement, each Company Contract that constitutes a Company Material Contract and which remains in effect as of the date hereof and under which a Tetraphase Company has remaining material rights or obligations. For purposes of this Agreement, each of the following Company Contracts shall be deemed to constitute a “Company Material Contract”:
(i) any Contract in effect and which has been filed (or is required to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Act, or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange Act;
(ii) any Contract: (A) constituting a Company Employee Agreement under which annual salary or other stated annual cash compensation exceeds $200,000; (B) pursuant to which any of the Tetraphase Companies is or may become obligated to make any severance, termination or similar payment to any Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) above;
(iii) any Contract with any labor union or any collective bargaining agreement or similar Contract for the benefit of any Company Associate(s);
(iv) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software);
(v) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Company;
(vi) any material Contract with any distributor and any material contract with any other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(vii) any material Contract (other than any purchase order entered into in the ordinary course of business) with sole source or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viii) any Contract that provides for: (A) reimbursement of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate;
(ix) any Contract (A) that restricts the ability of the Tetraphase Companies to compete in any business or with any Person in any geographical area; (B) in which the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;
(x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into in the ordinary course of business or that do not deviate in any material respect from the standard forms of Contracts previously Made Available by the Company to Parent;
(xi) any Contract providing for any currency hedging;
(xii) any Contract requiring that any of the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2019; (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company); and
(xvii) any Contract, the termination of which would have a Company Material Adverse Effect. The Company has delivered or Made Available (including by filing with the SEC) to Parent an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as of the date of this Agreement.
(b) Each Company Contract that constitutes a Company Material Transferred Contract is valid and binding on Seller or the Divesting Entity that is a party thereto and, to the Knowledge of Seller, the other party thereto, and is in full force and effect (except for Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period), and is enforceable in accordance with its terms, subject to: (i) laws of general application relating to bankruptcy, insolvency and the relief insolvency, reorganization, fraudulent conveyance, moratorium or similar Laws affecting creditors’ rights generally or by general principles of debtors; and equity (regardless of whether enforcement is sought in a proceeding in equity or law), (ii) rules neither Seller nor any Divesting Entity or, to the Knowledge of law governing specific performanceSeller, injunctive relief any other party thereto, is in material breach of or material default under, or has provided notice of its intent to terminate or, to the extent applicable, not renew, any Transferred Contract, and no event has occurred that, with the giving of notice or lapse of time or both, would constitute a material breach or material default thereunder and (iii) no Transferred Contract limits or restricts the ability of any party thereto to conduct any particular line of business (other equitable remedies than restrictions set forth in the License) that would be binding on Purchaser following the Closing
(b) A true, complete and correct list of the top ten (10) vendors (by amount actually paid or payable to such vendors) in respect of the Business, in each case, for the twelve (12)-month period ended December 31, 2019 (the “Enforceability ExceptionsTop Vendors”)) is set forth on Section 4.08(b) of the Disclosure Schedules.
(c) Except as set forth in Part 2.10(con Section 4.08(c) of the Company Disclosure Schedule: Schedules, each Transferred Contract is assignable or transferable to Purchaser without (i) none of the Tetraphase Companies has violated or breached in any material respectwritten consent of, or committed any default in any material respect underprior notice to, any Company Material Contract; other party thereto and (ii) the making of any payment or grant of any other consideration, rights or license to any other party thereto or Person.
(d) As of the Effective Date, Grünenthal has consented, in writing, to the knowledge assignment of the CompanyLicense to Purchaser pursuant to the Consent Agreement and in accordance with the terms of the License and such consent has not been rescinded, no other Person has violated revoked, modified or breached conditioned in any material respectmanner.
(e) Except as set forth on Section 4.08(e) of the Disclosure Schedules, or committed any default in since August 1, 2019, Seller has received no written notice of any material respect underadverse change in the price or availability of any material supplies or services provided under the Transferred Contracts that are used in the manufacture, any Company Material Contract; (iii) to the knowledge distribution or sale of the Company, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse Products as such activities are conducted by Seller as of time) would reasonably be expected to: (A) result in a violation or breach in any material respect of any Company Material Contract; (B) give any Person the right to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received any written notice (or, to the knowledge of the Company, any other communication) regarding any actual or possible material violation or breach of, or material default under, any Company Material Contract.
Appears in 3 contracts
Sources: Asset Purchase Agreement (Assertio Therapeutics, Inc), Asset Purchase Agreement (Collegium Pharmaceutical, Inc), Asset Purchase Agreement (Assertio Therapeutics, Inc)
Contracts. (a) Part 2.10(a) The Parent SEC Reports list all material agreements required to be disclosed under the Exchange Act or the Securities Act to which the Parent or any of the Company Disclosure Schedule identifies, its Subsidiaries is a party as of the date of this Agreement, each Company Contract that constitutes a Company Material Contract and which remains in effect as of the date hereof and under which a Tetraphase Company has remaining material rights or obligations. For purposes of this Agreement, each of the following Company Contracts shall be deemed to constitute a “Company Material Contract”including:
(i) any Contract in effect and which has been filed agreement (or is required group of related agreements) for the lease of personal property from or to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Act, or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange Actthird parties;
(ii) any Contract: (A) constituting agreement establishing a Company Employee Agreement under which annual salary partnership or other stated annual cash compensation exceeds $200,000; (B) pursuant to which any of the Tetraphase Companies is or may become obligated to make any severance, termination or similar payment to any Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) abovejoint venture;
(iii) any Contract with agreement (or group of related agreements) under which it has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) or under which it has imposed (or may impose) a Security Interest on any labor union of its assets, tangible or any collective bargaining agreement or similar Contract for the benefit of any Company Associate(s)intangible;
(iv) each any agreement that purports to limit in any material Contract pursuant respect the right of the Parent to which engage in any Intellectual Property Rights line of business, or Intellectual Property that has been incorporated into to compete with any Company Product and is licensed to person or operate in any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software)geographical location;
(v) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Companyemployment agreement with executive officers;
(vi) any material Contract with any distributor and any material contract with any other reseller agreement under which the consequences of a default or sales representative, in each case that provides exclusivity rights termination would reasonably be expected to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in the ordinary course of businesshave a Parent Material Adverse Effect;
(vii) any material Contract agreement which contains any provisions requiring the Parent or any of its Subsidiaries to indemnify any other party thereto (other than any purchase order excluding indemnities contained in agreements for the purchase, sale or license of products entered into in the ordinary course Ordinary Course of business) with sole source or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;Business); and
(viii) any Contract that provides for: (A) reimbursement of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate;
(ix) any Contract (A) that restricts the ability of the Tetraphase Companies to compete in any business or with any Person in any geographical area; (B) in which the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;
(x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligationagreement, other than Contracts entered into in as contemplated by this Agreement and the ordinary course Transaction Documents, relating to the sales of business securities of the Parent or that do not deviate in any material respect from the standard forms of Contracts previously Made Available by the Company to Parent;
(xi) any Contract providing for any currency hedging;
(xii) any Contract requiring that any of its Subsidiaries to which the Tetraphase Companies give any written notice Parent or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract that such Subsidiary is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2019; (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company); and
(xvii) any Contract, the termination of which would have a Company Material Adverse Effect. The Company has delivered or Made Available (including by filing with the SEC) to Parent an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as of the date of this Agreementparty.
(b) Each Company Contract that constitutes a Company Material Contract With respect to each agreement listed in the Parent SEC Reports: (i) the agreement is valid legal, valid, binding and enforceable and in full force and effect; (ii) the agreement will continue to be legal, valid, binding and enforceable and in full force and effect (except for Contracts that are expired, terminated, and/or not renewed during immediately following the Pre-Closing Period), and is enforceable in accordance with its terms, subject to: (i) laws of general application relating the terms thereof as in effect immediately prior to bankruptcy, insolvency and the relief of debtorsClosing; and (iiiii) rules neither the Parent nor any of law governing specific performanceits Subsidiaries nor, injunctive relief and other equitable remedies (the “Enforceability Exceptions”).
(c) Except as set forth in Part 2.10(c) of the Company Disclosure Schedule: (i) none of the Tetraphase Companies has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (ii) to the knowledge of the CompanyParent, no any other Person has violated party, is in breach or breached in any material respectviolation of, or committed any default in any material respect under, any Company Material Contract; (iii) to the knowledge of the Companysuch agreement, and no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) would reasonably be expected to: (A) result in a violation or breach in any material respect of any Company Material Contract; (B) give any Person the right to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received any written notice (is pending or, to the knowledge of the CompanyParent, is threatened, which, after the giving of notice, with lapse of time or otherwise, would constitute a breach or default by the Parent or any of its Subsidiaries or, to the knowledge of the Parent, any other communication) regarding any actual or possible material violation or breach of, or material default under, any Company Material Contractparty under such contract.
Appears in 3 contracts
Sources: Agreement and Plan of Merger and Reorganization (Ds Healthcare Group, Inc.), Merger Agreement (Ds Healthcare Group, Inc.), Merger Agreement (Ds Healthcare Group, Inc.)
Contracts. (a) Part 2.10(a) Section 3.16 of the Company Parent Disclosure Schedule identifies, lists the following agreements (written or oral) to which the Parent or any Subsidiary is a party as of the date of this Agreement, each Company Contract that constitutes a Company Material Contract and which remains in effect as of the date hereof and under which a Tetraphase Company has remaining material rights or obligations. For purposes of this Agreement, each of the following Company Contracts shall be deemed to constitute a “Company Material Contract”:
(i) any Contract in effect and which has been filed agreement (or is required group of related agreements) for the lease of personal property from or to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Act, or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange Actthird parties;
(ii) any Contract: agreement (or group of related agreements) for the purchase or sale of products or for the furnishing or receipt of services (A) constituting which calls for performance over a Company Employee Agreement under which annual salary or other stated annual cash compensation exceeds $200,000; period of more than one year, (B) pursuant to which any involves more than the sum of the Tetraphase Companies is $5,000, or may become obligated to make any severance, termination or similar payment to any Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) above;
(iii) any Contract with any labor union or any collective bargaining agreement or similar Contract for the benefit of any Company Associate(s);
(iv) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software);
(v) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Company;
(vi) any material Contract with any distributor and any material contract with any other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(vii) any material Contract (other than any purchase order entered into in the ordinary course of business) with sole source or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viii) any Contract that provides for: (A) reimbursement of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate;
(ix) any Contract (A) that restricts the ability of the Tetraphase Companies to compete in any business or with any Person in any geographical area; (B) in which the Company Parent or any Tetraphase Company Subsidiary has granted development manufacturing rights, “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to any product products or product candidate; (C) in which the Company territory or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating or services or has agreed to purchase goods or services exclusively from a certain party;
(iii) any product agreement establishing a partnership or product candidate; joint venture;
(iv) any agreement (or group of related agreements) under which it has created, incurred, assumed or guaranteed (Dor may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) involving more than $5,000 or under which provides for “exclusivity” it has imposed (or may impose) a Security Interest on any of its assets, tangible or intangible;
(v) any agreement concerning confidentiality or noncompetition;
(vi) any employment or consulting agreement;
(vii) any agreement involving any officer, director or stockholder of the Parent or any similar requirement in favor Affiliate thereof;
(viii) any agreement under which the consequences of any third party, in each case which restriction would a default or termination would reasonably be expected to materially and adversely affect have a Parent Material Adverse Effect;
(ix) any agreement which contains any provisions requiring the conduct Parent or any Subsidiary to indemnify any other party thereto (excluding indemnities contained in agreements for the purchase, sale or license of products entered into in the business Ordinary Course of the Tetraphase Companies, taken as a whole, as currently conducted;Business); and
(x) any Contract incorporating other agreement (or providing for any material guaranty, warranty, sharing group of liabilities related agreements) either involving more than $5,000 or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts not entered into in the ordinary course Ordinary Course of business or that do not deviate in any material respect from the standard forms of Contracts previously Made Available by the Company to Parent;
(xi) any Contract providing for any currency hedging;
(xii) any Contract requiring that any of the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2019; (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company); and
(xvii) any Contract, the termination of which would have a Company Material Adverse Effect. The Company has delivered or Made Available (including by filing with the SEC) to Parent an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as of the date of this AgreementBusiness.
(b) Each The Parent has delivered or made available to the Company Contract that constitutes a Company Material Contract complete and accurate copy of each agreement listed in Section 3.16 of the Parent Disclosure Schedule. With respect to each agreement so listed: (i) the agreement is valid legal, valid, binding and enforceable and in full force and effect; (ii) the agreement will continue to be legal, valid, binding and enforceable and in full force and effect (except for Contracts that are expired, terminated, and/or not renewed during immediately following the Pre-Closing Period), and is enforceable in accordance with its terms, subject to: (i) laws of general application relating the terms thereof as in effect immediately prior to bankruptcy, insolvency and the relief of debtorsClosing; and (iiiii) rules of law governing specific performanceneither the Parent nor any Subsidiary nor, injunctive relief and other equitable remedies (the “Enforceability Exceptions”).
(c) Except as set forth in Part 2.10(c) of the Company Disclosure Schedule: (i) none of the Tetraphase Companies has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (ii) to the knowledge of the CompanyParent, no any other Person has violated party, is in breach or breached in any material respectviolation of, or committed any default in any material respect under, any Company Material Contract; (iii) to the knowledge of the Companysuch agreement, and no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) would reasonably be expected to: (A) result in a violation or breach in any material respect of any Company Material Contract; (B) give any Person the right to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received any written notice (is pending or, to the knowledge of the CompanyParent, is threatened, which, after the giving of notice, with lapse of time, or otherwise, would constitute a breach or default by the Parent or any Subsidiary or, to the knowledge of the Parent, any other communication) regarding any actual or possible material violation or breach of, or material default under, any Company Material Contractparty under such contract.
Appears in 3 contracts
Sources: Merger Agreement (Ethanex Energy, Inc.), Merger Agreement (Foothills Resources Inc), Merger Agreement (Kreido Biofuels, Inc.)
Contracts. (a) Part 2.10(a) of the Company Disclosure Schedule identifies, as of the date of this Agreement, each Company Contract that constitutes a Company Material Contract and which remains in effect as of the date hereof and under which a Tetraphase Target Company has remaining material rights or obligations. For purposes of this Agreement, each of the following Company Contracts shall be deemed to constitute a “Company Material Contract”:
(i) any Contract in effect and which has been filed (or is required to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Act, or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange Act;
(ii) any Contract: (A) Contract constituting a Company Employee Agreement under which annual salary or and other stated annual cash compensation exceeds $200,000; (B) pursuant to which any of the Tetraphase Companies is or may become obligated to make any severance, termination or similar payment to any Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) above150,000;
(iii) any Contract with any labor union or any collective bargaining agreement or similar Contract for the benefit of any Company Associate(s);
(iv) each material Contract pursuant to which any Intellectual Property Rights or rights in any third party Intellectual Property that has been incorporated into any Company Product and is licensed or granted to any Tetraphase Target Company (other than non-exclusive licenses to unmodified generally commercially available third party software);
(v) each material Contract pursuant to which any Intellectual Property Rights or rights in any Intellectual Property incorporated into any Company Product are licensed by granted to any Tetraphase third party by any Target Company;
(vi) any material Contract with any distributor and any material contract with any other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(vii) any material Contract (other than any purchase order entered into in the ordinary course of business) with sole source or single source suppliers to any Tetraphase Target Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viii) any Contract that provides for: (A) reimbursement of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate;
(ix) any Contract (A) that restricts the ability of the Tetraphase Target Companies to compete in any business or with any Person in any geographical area; (B) in which the Company or any Tetraphase Target Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidate; (C) in which the Company or any Tetraphase Target Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Target Companies, taken as a whole, as currently conducted;
(x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into in the ordinary course of business or that do not deviate in any material respect from the standard forms of Contracts previously Made Available by the Company to Parent;
(xi) any Contract providing for any currency hedging;
(xii) any Contract requiring that any of the Tetraphase Target Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for the lease lease, sublease, license or sublease occupancy of Tetraphase Target Leased Real Property;
(xiv) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 300,000 in the fiscal year ending December 31, 20192021; (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 300,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 300,000 in the fiscal year ended December 31, 20192021; or (D) requires by its terms the performance of services having a value in excess of $200,000 300,000 in the fiscal year ending December 31, 2020;
(xvi) any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Target Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Target Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Target Company); and;
(xvii) any Contract, the termination of which would have a Company Material Adverse Effect;
(xviii) any Contract between the Company and any of its directors, officers or Company Affiliates (other than any Contract solely between or among the Company or its Subsidiaries);
(xix) any Contract entered into during the past three years involving the acquisition or disposition, directly or indirectly (by merger or otherwise), of (A) a business or capital stock or other equity interests, or (B) other than in the ordinary course of business assets consistent with past practices, the assets (including capital assets) or properties of another Person, in each case, for aggregate consideration (in one or a series of related transactions) under such Contract of $1,000,000 or more; and
(xx) any Contract that commits the Company or any Company Affiliates to enter into any of the foregoing. The Company has delivered or Made Available (including by filing with the SEC) to Parent an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as of the date of this Agreement.
(b) Each Company Contract that constitutes a Company Material Contract is valid and in full force and effect (except for Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period), and is enforceable in accordance with its terms, subject to: (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”).
(c) Except as set forth in Part 2.10(c) of the Company Disclosure Schedule: (i) none of the Tetraphase Target Companies has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (ii) to the knowledge of the Company, no other Person has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (iii) to the knowledge of the Company, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) would reasonably be expected to: (A) result in a violation or breach in any material respect of any Company Material Contract; (B) give any Person the right to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 2020 and the date of this Agreement, none of the Tetraphase Target Companies has received any written notice (or, to the knowledge of the Company, any other communication) regarding any actual or possible material violation or breach of, or material default under, any Company Material Contract.
Appears in 3 contracts
Sources: Merger Agreement (La Jolla Pharmaceutical Co), Merger Agreement (La Jolla Pharmaceutical Co), Merger Agreement (Innoviva, Inc.)
Contracts. (a) Part 2.10(a) of Except as set forth in the Company Disclosure Schedule identifies, as of SEC Reports filed prior to the date of this Agreement, each Company Contract that constitutes a Company Material Contract and which remains in effect as Agreement or Section 3.18 of the date hereof and under which a Tetraphase Disclosure Schedule, neither the Company has remaining material rights or obligations. For purposes of this Agreement, each nor any of the following Company Contracts shall be deemed Subsidiaries is a party to constitute a “Company Material Contract”:
or bound by any (i) any Contract "material contract" (as such term is defined in effect and which has been filed (or is required to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under promulgated by the Exchange ActSEC), (ii) non-competition agreement or any other agreement or obligation which purports to limit in any respect the manner in which, or the localities in which, all or any material portion of the business of the Company and the Subsidiaries, taken as a whole, may be conducted, (iii) transaction, agreement, arrangement or understanding with any affiliate of the Company or such Subsidiary that would be required to be disclosed under Item 404 of Regulation S-K under promulgated by the Exchange Act;
(ii) any Contract: (A) constituting a Company Employee Agreement under which annual salary or other stated annual cash compensation exceeds $200,000; (B) pursuant to which any of the Tetraphase Companies is or may become obligated to make any severanceSEC, termination or similar payment to any Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) above;
(iii) any Contract with any labor union or any collective bargaining agreement or similar Contract for the benefit of any Company Associate(s);
(iv) each material Contract pursuant to which voting or other agreement governing how any Intellectual Property Rights or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software);
Shares shall be voted, (v) each material Contract pursuant to which any Intellectual Property Rights acquisition, merger, asset purchase or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Company;
sale agreement, (vi) any material Contract with any distributor and any material contract with any other reseller or sales representative, in each case that agreement which provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(vii) any material Contract (other than any purchase order entered into in the ordinary course of business) with sole source or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viii) any Contract that provides for: (A) reimbursement of any Company Associate for, or advancement to any Company Associate ofrelates to, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate;
(ix) any Contract (A) that restricts the ability of the Tetraphase Companies to compete in any business or with any Person in any geographical area; (B) in which incurrence by the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity Subsidiary of goods relating to any product or product candidate; or (D) which provides indebtedness for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;
(x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity borrowed money (including any indemnity interest rate or foreign currency swap, cap, collar, hedge or insurance agreements, or options or forwards on such agreements, or other similar agreements for the purpose of managing the interest rate or foreign exchange risk associated with respect to Intellectual Property its financing), or Intellectual Property Rights(vii) contract or similar obligation, other than Contracts entered into in agreement which would prohibit or materially delay the ordinary course consummation of business the Merger or that do not deviate in any material respect from the standard forms of Contracts previously Made Available by the Company to Parent;
(xi) any Contract providing for any currency hedging;
(xii) any Contract requiring that any of the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
transactions contemplated by this Agreement (xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2019; (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company); and
(xvii) any Contract, the termination of which would have a Company Material Adverse Effect. The Company has delivered or Made Available (including by filing with the SEC) to Parent an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as all contracts of the date of this Agreement.
type described in clauses (bi) through (vii) being referred to herein as "Material Contracts"). Each Company Contract that constitutes a Company Material Contract is valid and binding on the Company (or, to the extent a Subsidiary of the Company is a party, such Subsidiary) and is in full force and effect (except for Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period)effect, and is enforceable the Company and each Subsidiary have performed all obligations required to be performed by them to date under each Material Contract, except where such noncompliance, individually or in accordance with its termsthe aggregate, subject to: (i) laws of general application relating to bankruptcy, insolvency and would not have a Material Adverse Effect on the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”).
(c) Company. Except as set forth in Part 2.10(c) Section 3.18 of the Disclosure Schedule, neither the Company nor any Subsidiary of the Company Disclosure Schedule: (i) none of the Tetraphase Companies has violated is in default or breached in any material respectknows of, or committed any default in any material respect underhas received notice of, any Company Material Contract; (ii) to the knowledge of the Company, no other Person has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (iii) to the knowledge of the Company, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) would reasonably be expected to: (A) result in a violation or breach in any material respect of any Company Material Contract; default under (B) give any Person the right to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received any written notice (ornor, to the knowledge of the Company, does there exist any other communication) regarding any actual condition which with the passage of time or possible material the giving of notice or both would result in such a violation or breach ofdefault under) any Material Contract, except any such default or violation that, individually or in the aggregate, would not have a Material Adverse Effect.
(b) Except as disclosed in the SEC Reports filed prior to the date of this Agreement or in Section 3.18 of the Disclosure Schedule or as provided for in this Agreement, neither the Company nor any of the Subsidiaries is a party to any oral or written (i) employment, severance, retention or termination agreements or consulting agreements not terminable on 30 days' or less notice, (ii) union or collective bargaining agreement, (iii) agreement with any executive officer or other key employee of the Company or any of the Subsidiaries the benefits of which are contingent or vest, or material default underthe terms of which are materially altered, upon the occurrence of a transaction involving the Company or any of the Subsidiaries of the nature contemplated by this Agreement, (iv) agreement with respect to any executive officer or other key employee of the Company or any of the Subsidiaries providing any term of employment or compensation guarantee or (v) agreement or plan, including any stock option, stock appreciation right, restricted stock or stock purchase plan, any Company Material Contractof the benefits of which will be increased, or the vesting of the benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement.
Appears in 3 contracts
Sources: Merger Agreement (Shopko Stores Inc), Merger Agreement (Citigroup Inc), Merger Agreement (Pamida Holdings Corp/De/)
Contracts. (a) Part 2.10(a) Section 4.16 of the Company Contango Disclosure Schedule identifiesLetter lists, as of the date of this AgreementExecution Date, each Company Contract that constitutes a Company Material Contract and which remains in effect as of the date hereof and under which a Tetraphase Company has remaining material rights or obligations. For purposes of this Agreement, each of the following Company Contracts shall be deemed types (excluding any Contango Plan) to constitute which any Contango Group Entity is a “Company Material Contract”party or by which any of their respective properties or assets is bound:
(i) any Contract in effect and which has been filed (or is that would be required to be filed) filed by the Company Contango as an exhibit a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Act, Securities Act or that would be required to be disclosed under Item 404 of Regulation Sby Contango on a Current Report on Form 8-K under the Exchange ActK;
(ii) any Contract: Contract that limits the ability of any Contango Group Entity (A) constituting a Company Employee Agreement under which annual salary or other stated annual cash compensation exceeds $200,000; (B) pursuant to which any or, following the consummation of the Tetraphase Companies is Merger and the other transactions contemplated by this Agreement, would limit the ability of Surviving Entity) to compete in any line of business or may become obligated to make with any severancePerson or in any geographic area (including any Contract containing any area of mutual interest, termination joint bidding area, joint acquisition area, or non-compete or similar payment to any Company Associate type of provision), or any spouse, heir or Representative that restricts the right of any Company Associate; Contango Group Entity (C) pursuant to which any or, following the consummation of the Tetraphase Companies is Merger and the other transactions contemplated by this Agreement, would restrict the right of Surviving Entity) to sell to or may become obligated purchase from any Person or to make hire any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) abovePerson;
(iii) any Contract with that contains any labor union “most favored nation” or most favored customer provision, call or put option, preferential right or rights of first or last offer, negotiation or refusal, in each case other than those contained in (A) any collective bargaining agreement or similar Contract in which such provision is solely for the benefit of any Company Associate(s)Contango Group Entity, (B) customary royalty pricing provisions in Oil and Gas Leases or (C) customary preferential rights in joint operating agreements, unit agreements or participation agreements affecting the business or the Oil and Gas Properties of any Contango Group Entity, to which any Contango Group Entity or any of their Affiliates is subject, and is material to the business of the Contango Group Entities, taken as a whole;
(iv) each material Contract pursuant to which any Intellectual Property Rights partnership, joint venture or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (limited liability company agreement, other than non-exclusive licenses to unmodified commercially available third party software)any customary joint operating agreements, unit agreements or participation agreements affecting the Oil and Gas Properties of the Contango Group Entities;
(v) each material any Contract pursuant relating to which any Intellectual Property Rights or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase CompanyIndebtedness and having an outstanding principal amount in excess of $1,000,000;
(vi) any material Contract with any distributor and any material contract with any involving the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other reseller equity interests for aggregate consideration (in one or sales representative, in each case that provides exclusivity rights to a series of transactions) under such distributor, reseller Contract of $1,000,000 or sales representativemore, other than confidentiality Contracts involving the acquisition or nondisclosure agreements entered into disposition of Hydrocarbons in the ordinary course of business;
(vii) any material Contract (other than for the lease of personal property or Contango Leased Real Property involving aggregate payments in excess of $1,000,000 in any purchase order entered into in the ordinary course of business) with sole source or single source suppliers to any Tetraphase Company of products or servicescalendar year that are not terminable without penalty within 60 days, other than confidentiality or nondisclosure agreements entered into in the ordinary course of businessContracts related to drilling rigs;
(viii) any joint development agreement, exploration agreement, participation, farmout, farm-in or program agreement or similar Contract that provides for: (A) reimbursement requiring any Contango Group Entity to make annual expenditures in excess of any Company Associate for$750,000 or aggregate payments in excess of $1,000,000 during the 12-month period following the Execution Date, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associatethan customary joint operating agreements and continuous development obligations under Oil and Gas Leases;
(ix) any Contract that provides for the sale by any Contango Group Entity of Hydrocarbons that (A) that restricts has a remaining term of greater than 60 days and does not allow the ability of the Tetraphase Companies Contango Group Entity to compete in any business terminate it without penalty on 60 days’ notice, or with any Person in any geographical area; (B) in which the Company or any Tetraphase Company has granted development rights, contains a “most favored nationtake-or-pay” pricing provisions or marketing or distribution rights relating to any product or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” clause or any similar requirement in favor of any third party, in each case which restriction would material prepayment or would reasonably be expected forward sale arrangement or obligation (excluding “gas balancing” arrangements associated with customary joint operating agreements) to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducteddeliver Hydrocarbons at some future time without then or thereafter receiving full payment therefor;
(x) each Contract that is a transportation, processing or gathering agreement to which any Contract incorporating Contango Group Entity is a party involving the transportation, processing or providing for any material guarantygathering of more than 1,000 Mcf of gaseous Hydrocarbons per day, warranty, sharing or 50 barrels of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into in the ordinary course of business or that do not deviate in any material respect from the standard forms of Contracts previously Made Available by the Company to Parentliquid Hydrocarbons per day;
(xi) any Contract providing that by its terms calls for aggregate payment or receipt by any currency hedgingContango Group Entity under such Contract of more than $1,000,000 over the remaining term of such Contract;
(xii) any Contract requiring pursuant to which any Contango Group Entity has continuing indemnification, guarantee, “earn-out” or other contingent payment obligations, in each case that any could result in payments in excess of the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction$1,000,000;
(xiii) any Contract providing that provides for the lease any standstill or sublease of Tetraphase Leased Real Propertysimilar obligations;
(xiv) any Contract that is a Government Contractobligates any Contango Group Entity to make any capital commitment, loan or expenditure in an amount in excess of $1,000,000;
(xv) any ContractContract that requires a consent to or otherwise contains a provision relating to a “change of control,” or that would or would reasonably be expected to prevent, not covered delay or impair the consummation of the transactions contemplated by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2019Agreement; (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;or
(xvi) any material Contract Commodity Derivative Instrument that has a term of more than one year and which may not will be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days binding on any Contango Group Entity after the delivery Closing. Each contract of the type described in clauses (i) through (xvi) is referred to herein as a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company); and“Contango Material Contract.”
(xvii) any Contract, the termination of which would have a Company Material Adverse Effect. The Company has delivered or Made Available (including by filing with the SEC) to Parent an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as of the date of this Agreement.
(bi) Each Company Contract that constitutes a Company Contango Material Contract is valid and binding on the Contango Group Entity party thereto and, to the knowledge of Contango, each other party thereto, and is in full force and effect (except for Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period), and is enforceable in accordance with its terms, terms except that such enforceability is subject to: (i) laws of general application relating to bankruptcy, insolvency creditors’ rights and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”).
(c) Except as set forth in Part 2.10(c) of the Company Disclosure Schedule: (i) none of the Tetraphase Companies has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contractgenerally; (ii) such Contango Group Entity and, to the knowledge of the CompanyContango, no each other Person party thereto has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (iii) performed all obligations required to the knowledge of the Company, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) would reasonably be expected to: (A) result in a violation or breach in any material respect of any Company Material Contract; (B) give any Person the right to declare a default in any material respect performed by it under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company each Contango Material Contract; and (iviii) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received there is no default under any written notice (Contango Material Contract by such Contango Group Entity or, to the knowledge of the CompanyContango, any other communication) regarding any actual party thereto, and no event or possible material violation condition has occurred that constitutes, or, after notice or breach oflapse of time or both, or material would constitute, a default underon the part of such Contango Group Entity or, to the knowledge of Contango, any Company other party thereto under any such Contango Material Contract, nor has such Contango Group Entity received any notice of any such default, event or condition, in case, except as would not reasonably be expected to have, individually or in the aggregate, a Contango Material Adverse Effect. Contango has made available to the Partnership true and complete copies of all Contango Material Contracts, including all amendments thereto.
Appears in 3 contracts
Sources: Merger Agreement (Contango Oil & Gas Co), Merger Agreement (Contango Oil & Gas Co), Merger Agreement (Mid-Con Energy Partners, LP)
Contracts. (a) Part 2.10(a3.9(a) of the Company Parent Disclosure Schedule identifies, identifies each Parent Contract that constitutes a “Parent Material Contract” as of the date of this Agreement, each Company Contract that constitutes a Company Material Contract and which remains in effect as of the date hereof and under which a Tetraphase Company has remaining material rights or obligationshereof. For purposes of this Agreement, each of the following Company Contracts shall be deemed to constitute a “Company Parent Material Contract”:
(i) any Parent Contract in effect and which has been filed (or that is a material contract required to be filed) by the Company filed as an exhibit pursuant to Item 601(b)(10601(b)(4) or (10) of Regulation S-K under the Exchange ActAct to any registration statement, proxy statement or that would be required to be disclosed under Item 404 of Regulation S-K under other statement, report, schedule, form or other document filed by any Parent Entity with the Exchange ActSEC;
(ii) any Contract: Contract (A) constituting a Company Parent Employee Agreement under which annual salary for a Designated Position, or other stated annual cash compensation exceeds $200,000; (B) pursuant to which any of the Tetraphase Companies is or may become obligated to make any severance, termination or similar payment to any Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies Parent Entities is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, restricted stock unit, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) aboveParent Entities;
(iii) any Contract with contemplating an exclusive or preferential relationship between any labor union Parent Entity and any other Person, including any “most favored nation” or any collective bargaining agreement “most favored customer” or similar Contract for the benefit provision in favor of any Company Associate(s)such other Person;
(iv) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software);
(v) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Company;
(vi) any material Contract with any distributor and any material contract with any other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(vii) any material Contract (other than any purchase order entered into in the ordinary course of business) with sole source or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viii) any Contract that provides forimposes any restriction in any material respect on the right or ability of any Parent Entity: (A) reimbursement of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated compete with any Legal Proceeding or the defense thereofother Person; or (B) indemnification of to perform services for any Company Associateother Person;
(ixv) any Contract (A) that restricts the ability of the Tetraphase Companies to compete in any business incorporating or with any Person in any geographical area; (B) in which the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity guaranty of goods relating to any product or product candidate; third party obligations, or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;
(x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligationB), other than Contracts entered into in the ordinary course of business or that do not deviate in consistent with past practice, imposing any material respect from the standard forms obligations under any warranty, sharing of Contracts previously Made Available by the Company to Parentliabilities, indemnity or similar obligation;
(xivi) any Contract providing for relating to any currency or other hedging;
(xii) any Contract requiring that any of the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xivvii) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved contemplates or involves the payment or delivery of cash or other consideration (by or to any Parent Entity) in an amount or having a value in excess of $200,000 6,000,000 in the fiscal year ending December 31aggregate, 2019; or contemplates or involves the performance of services (Bby or for any Parent Entity) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 6,000,000 in the fiscal year ending December 31aggregate;
(viii) any Contract that: (A) provides for the authorship, 2020; invention, creation, conception or other development of any Intellectual Property or Intellectual Property Rights (C1) involved by any Parent Entity for any Person or (2) for any Parent Entity by any Person (other than with respect to this subsection (A)(2), Parent IP Assignment Contracts with employees, consultants or independent contractors of any Parent Entity that are on such Parent Entity’s standard unmodified forms Made Available to the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019Company); or (DB) requires provides for the assignment or other transfer of any ownership interest in any material Intellectual Property or Intellectual Property Rights (1) by its terms any Parent Entity to any Person or (2) to any Parent Entity from any Person (other than with respect to this subsection (B)(2), Parent IP Assignment Contracts with employees, consultants or independent contractors of any Parent Entity that are on such Parent Entity’s standard unmodified forms Made Available to the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020Company);
(xviix) any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality joint venture or nondisclosure agreements entered into by any Tetraphase Company)similar Contract; and
(xviix) any other Contract, the if a breach or termination of which such Contract would have have, or would reasonably be expected to have, a Company Parent Material Adverse Effect. The Company .
(b) Parent has delivered or Made Available (including by filing with to the SEC) to Parent Company an accurate and complete copy of each Company Parent Contract that constitutes a Company Parent Material Contract as of the date of this Agreementhereof.
(bc) Each Company Except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Parent Material Adverse Effect, each Parent Contract that constitutes a Company Parent Material Contract as of the date hereof is valid and in full force and effect (except for Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period)effect, and is enforceable in accordance with its terms, subject to: (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”)remedies.
(cd) Except as set forth as, individually or in Part 2.10(c) of the Company Disclosure Scheduleaggregate, has not had, and would not reasonably be expected to have, a Parent Material Adverse Effect: (i) none of the Tetraphase Companies Parent Entities has violated or breached in any material respectbreached, or committed any default in any material respect under, any Company Material Parent Contract; (ii) to the knowledge Knowledge of the CompanyParent, no other Person has violated or breached in any material respectbreached, or committed any default in any material respect under, any Company Material Contract; (iii) to the knowledge of the Company, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) would reasonably be expected to: (A) result in a violation or breach in any material respect of any Company Material Contract; (B) give any Person the right to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Parent Contract; and (iviii) between December since July 31, 2018 and the date of this Agreement2017, none of the Tetraphase Companies Parent Entities has received any written notice (or, to the knowledge of the Company, any or other communication) , written or otherwise, regarding any actual or possible material violation or breach of, or material default under, any Company Parent Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Gulfmark Offshore Inc), Merger Agreement (Tidewater Inc)
Contracts. (a) Part 2.10(aExcept as set forth on Schedule 3.17(a) or 3.12(a), as of the date hereof, the Company Disclosure Schedule identifiesis not a party or subject to any of the following:
(i) any Contract, understanding or obligation with respect to severance, termination, retention or change in control, to pay liabilities or fringe benefits, with any present or former directors of the Board, officers or employees of the Company, or any such agreement, understanding or obligation, the assumption of which has been approved by the Bankruptcy Court or that is a Postpetition Contract;
(ii) any Contract providing for bonuses, pensions, options, deferred compensation, retirement payments, royalty payments, profit sharing or similar payment or benefit with respect to any present or former Representative of the Company, the assumption of which has been approved by the Bankruptcy Court or that is a Postpetition Contract;
(iii) any Contract under which the Company has created, incurred, assumed or guaranteed indebtedness for borrowed money or that is an outstanding guarantee, letter of comfort, letter of assurance, keepwell, letter of credit, performance bond, surety bond, indemnity agreement or other form of assurance or guarantee, the assumption of which has been approved by the Bankruptcy Court or that is a Postpetition Contract; and
(iv) any Contract required pursuant to Item 601 of Regulation S-K under the Securities Act to be filed as an exhibit to any SEC Report, which has not been so filed (each of the agreements described in clauses (i) - (iv), a “Material Contract”).
(b) The Company is not in material breach or material violation of, or in default under or with respect to, any Material Contract.
(c) As of the date of this Agreement, each the Company is not a party to or is bound by any non-competition Contract or other Contract the assumption of which has been approved by the Bankruptcy Court or that is a Postpetition Contract that constitutes a Company Material Contract and which remains in effect as of the date hereof and under which a Tetraphase Company has remaining material rights or obligations. For purposes of this Agreement, each of the following Company Contracts shall be deemed to constitute a “Company Material Contract”:
(i) purports to limit in any Contract material respect either the type of business in effect and which has been filed (or is required to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under may engage or the Exchange Actmanner or locations in which the Company may so engage in any business, or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange Act;
(ii) requires the disposition of any Contract: (A) constituting a Company Employee Agreement under which annual salary material assets or other stated annual cash compensation exceeds $200,000; (B) pursuant to which any line of business of the Tetraphase Companies is or may become obligated to make any severance, termination or similar payment to any Company Associate or any spouse, heir or Representative outside of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) above;.
(iiid) any Contract with any labor union or any collective bargaining agreement or similar Contract for the benefit of any Company Associate(s);
(iv) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software);
(v) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Company;
(vi) any material Contract with any distributor and any material contract with any other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(vii) any material Contract (other than any purchase order entered into in the ordinary course of business) with sole source or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viii) any Contract that provides for: (A) reimbursement of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate;
(ix) any Contract (A) that restricts the ability of the Tetraphase Companies to compete in any business or with any Person in any geographical area; (B) in which the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;
(x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into in the ordinary course of business or that do not deviate in any material respect from the standard forms of Contracts previously Made Available by the Company to Parent;
(xi) any Contract providing for any currency hedging;
(xii) any Contract requiring that any of the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2019; (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company); and
(xvii) any Contract, the termination of which would have a Company Material Adverse Effect. The Company has delivered or Made Available (including by filing with the SEC) to Parent an accurate A true and complete copy of each Company Contract that constitutes a Company Material Contract as to which the Company is a party has previously been delivered or made available to the Investor (subject to applicable confidentiality restrictions) and each such contract is a valid and binding agreement of the date of this Agreement.
(b) Each Company Contract that constitutes a Company Material Contract Company, as the case may be, and is valid and in full force and effect (effect, except for Contracts that are expired, terminated, and/or not renewed during to the Pre-Closing Period), and is enforceable extent any has previously expired in accordance with its terms, subject to: (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”).
(ce) Except as set forth in Part 2.10(c) As of the Company Disclosure Schedule: (i) none date hereof, since the commencement of the Tetraphase Companies Case, the Company has violated or breached in any material respectnot rejected and failed to replace, or committed any default in any material respect under, any Company Material Contract; (ii) on terms that are no less favorable to the knowledge of the Company, no other Person has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (iii) to the knowledge of the Company, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) would reasonably be expected to: (A) result in a violation or breach in any material respect of any Company Material Contract; (B) give any Person the right to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received any written notice (or, to the knowledge of the Company, any other communication) regarding any actual or possible material violation or breach of, or material default under, any Contract that is necessary to conduct the business of the Company Material Contractin substantially the same manner as presently conducted and as proposed to be conducted.
Appears in 2 contracts
Sources: Investment Agreement (Savitr Capital, LLC), Investment Agreement (Molecular Insight Pharmaceuticals, Inc.)
Contracts. (a) Part 2.10(a) of the Company Disclosure Schedule identifies, as of the date of this Agreement, each Company Contract that constitutes a Company Material Contract and which remains in effect as of the date hereof and under which a Tetraphase Company has remaining material rights or obligations. For purposes of this Agreement, each of the following Company Contracts shall be deemed to constitute a “Company Material Contract”"COMPANY MATERIAL CONTRACT":
(i) any Acquired Corporation Contract in effect and which has been filed (or that is required by the rules and regulations of the SEC to be filed) by the Company filed as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Act, or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange ActCompany SEC Documents;
(ii) any Contract: (A) constituting a Company Employee Agreement under which annual salary or other stated annual cash compensation exceeds $200,000; (B) Acquired Corporation Contract relating to the employment of any employee, and any Contract pursuant to which any of the Tetraphase Companies Acquired Corporations is or may become obligated to make any severance, termination termination, bonus or similar relocation payment to any Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar other payment (other than payments constituting bonuses in respect of salary) in excess of $50,000, to any current or commissions paid in the ordinary course of business); former employee or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) abovedirector;
(iii) any Acquired Corporation Contract with any labor union relating to the acquisition, transfer, development, sharing or any collective bargaining agreement or similar Contract for the benefit license of any Company Associate(smaterial Proprietary Asset (except for any Acquired Corporation Contract pursuant to which (A) any material Proprietary Asset is licensed to the Acquired Corporations under any third party software license generally available for sale to the public, or (B) any material Proprietary Asset is licensed by any of the Acquired Corporations to any Person on a non-exclusive basis);
(iv) each material any Acquired Corporation Contract pursuant to which provides for indemnification of any Intellectual Property Rights officer, director or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software)employee;
(v) each material any Acquired Corporation Contract pursuant creating or relating to which any Intellectual Property Rights partnership or Intellectual Property incorporated into joint venture or any Company Product are licensed by any Tetraphase Companysharing of revenues, profits, losses, costs or liabilities;
(vi) any material Acquired Corporation Contract with any distributor and any material contract with any other reseller that involves the payment or sales representative, in each case expenditure of $250,000 that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in may not be terminated by the ordinary course applicable Acquired Corporation (without penalty) within 60 days after the delivery of businessa termination notice by the applicable Acquired Corporation;
(vii) any material Acquired Corporation Contract (other than any purchase order entered into in the ordinary course of business) with sole source contemplating or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viii) any Contract that provides for: involving (A) reimbursement of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate;
(ix) any Contract (A) that restricts the ability of the Tetraphase Companies to compete in any business or with any Person in any geographical area; (B) in which the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;
(x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into in the ordinary course of business or that do not deviate in any material respect from the standard forms of Contracts previously Made Available by the Company to Parent;
(xi) any Contract providing for any currency hedging;
(xii) any Contract requiring that any of the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 250,000 in the fiscal year ending December 31aggregate, 2019; or (B) requires the performance of services having a value in excess of $250,000 in the aggregate; or
(viii) any Government Contract (i) creating or relating to the creation of any Encumbrance with respect to any asset owned or used by its terms any Acquired Corporation having a value in excess of $250,000; (ii) involving or incorporating any liability, obligation, guaranty, pledge, performance or completion bond, indemnity (other than customary intellectual property indemnitees for hardware and software sold by any Acquired Corporation), right of contribution or surety arrangement, any of which obligations involve or may reasonably be expected to involve an Acquired Corporation obligation in excess of $250,000 per year; or (iii) contemplating or involving (A) the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 250,000 in the fiscal year ending December 31aggregate, 2020; or (CB) involved the performance of services having a value in excess of $200,000 250,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020aggregate;
(xviix) any Acquired Corporation Contract imposing any restriction on the right or ability of any Acquired Corporation to (A) compete with any other Person, (B) acquire any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company product or other material asset or any services from any other Person, sell any material product or other material asset to or perform any services for any other Person or transact business or deal in any other manner with any other Person, or (without penalty in excess of $75,000C) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality develop or nondisclosure agreements entered into by distribute any Tetraphase Company)material technology; and
(xviix) any other Acquired Corporation Contract, the termination if a breach of which would such Acquired Corporation Contract could reasonably be expected to have a Company Material Adverse Effect. The Company has delivered or Made Available (including by filing with Effect on the SEC) to Parent an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as of the date of this AgreementAcquired Corporations.
(b) Each Company Contract that constitutes a Company Material Contract is valid and in full force and effect (except for Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period)effect, and is enforceable in accordance with its terms, subject to: (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”).
(c) Except as set forth in Part 2.10(c) None of the Company Disclosure Schedule: (i) none of the Tetraphase Companies Acquired Corporations has violated or breached in any material respectbreached, or committed any default in any material respect under, any Company Material Contract; (ii) to the knowledge of . To the Company's knowledge, no other Person has violated or breached in any material respectbreached, or committed any default in any material respect under, any Company Material Contract; .
(iiid) to the knowledge of the Company, no No event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) would could reasonably be expected to: to (Ai) result in a violation or breach in of any material respect provision of any Company Material ContractContract by any of the Acquired Corporations; (Bii) give any Person the right to declare a default in or exercise any material respect remedy under any Company Material Contract; (Ciii) to the Company's knowledge, give any Person the right to receive or require a material rebate, chargeback, penalty or change in delivery schedule under any Company Material Contract; (iv) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (Dv) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received any written notice (or, to the knowledge of the Company, any other communication) regarding any actual or possible material violation or breach of, or material default under, any Company Material Contract.
(e) Since March 31, 1996:
(i) the Acquired Corporations have not had any determination of noncompliance, entered into any consent order or undertaken any internal investigation relating directly or indirectly to any Government Contract or Government Bid;
(ii) the Acquired Corporations have complied with all Legal Requirements with respect to all Government Contracts and Government Bids;
(iii) the Acquired Corporations have not, in obtaining or performing any Government Contract, violated (A) the Truth in Negotiations Act of 1962, as amended, (B) the Service Contract Act of 1963, as amended, (C) the Contract Disputes Act of 1978, as amended, (D) the Office of Federal Procurement Policy Act, as amended, (E) the Federal Acquisition Regulations (the "FAR") or any applicable agency supplement thereto, (F) the Cost Accounting Standards, (G) the Defense Industrial Security Manual (DOD 5220.22-M), (H) the Defense Industrial Security Regulation (DOD 5220.22-R) or any related security regulations, or (I) any other applicable procurement law or regulation or other Legal Requirement;
(iv) all facts set forth in or acknowledged by any Acquired Corporation in any certification, representation or disclosure statement submitted by any Acquired Corporation with respect to any Government Contract or Government Bid were current, accurate and complete in all material respects as of the date of submission;
(v) none of the Acquired Corporations nor any of their respective employees have been debarred or suspended from doing business with any Governmental Body, and, to the Company's knowledge, no circumstances exist that would warrant the institution of debarrment or suspension proceedings against any Acquired Corporation or any employee of any Acquired Corporation;
(vi) no negative determinations of responsibility, as contemplated in Part 9 of the FAR (Contractor Qualifications), have been issued against any Acquired Corporation in connection with any Government Contract or Government Bid;
(vii) no material direct or indirect costs incurred by any Acquired Corporation have been disallowed as a result of a finding or determination of any kind by any Governmental Body;
(viii) no Governmental Body, and no prime contractor or high-tier subcontractor of any Governmental Body, has withheld or set off, or, to the Company's knowledge, threatened to withhold or set off, any material amount due to any Acquired Corporation under any Government Contract;
(ix) there are not and have not been any irregularities, misstatements or omissions relating to any Government Contract or Government Bid that have led to or could reasonably be expected to lead to (A) any administrative, civil, criminal or other investigation, Legal Proceeding or indictment involving any Acquired Corporation or any of their employees, (B) the disallowance of any costs submitted for payment by any Acquired Corporation, (C) the recoupment of any payments previously made to any Acquired Corporation, (D) a finding or claim of fraud, defective pricing, mischarging or improper payments on the part of any Acquired Corporation, or (E) the assessment of any material penalties or damages of any kind against any Acquired Corporation;
(x) there is not any (A) outstanding claim against any Acquired Corporation by, or dispute involving any Acquired Corporation with, any prime contractor, subcontractor, vendor or other Person arising under or relating to the award or performance of any Government Contract, (B) fact known by any Acquired Corporation upon which any such claim could reasonably be expected to be based or which may give rise to any such dispute, or (C) final decision of any Government Body against any Acquired Corporation;
(xi) no Acquired Corporation is undergoing, and no Acquired Corporation has undergone, any audit, and there is no impending audit, arising under or relating to any Government Contract (other than normal routine audits conducted in the ordinary course of business);
(xii) no Acquired Corporation is subject to any financing arrangement or assignment of proceeds with respect to the performance of any Government Contract;
(xiii) no payment has been made by any Acquired Corporation or, to the Company's knowledge, by a Person acting on any Acquired Corporation's behalf to any Person (other than to any bona fide employee or agent (as defined in subpart 3.4 of the FAR) of any Acquired Corporation) which is or was contingent upon the award of any Government Contract or which would otherwise be in violation of any applicable procurement law or regulation or any other Legal Requirement;
(xiv) each Acquired Corporation's cost accounting system is in compliance with applicable regulations and other applicable Legal Requirements, and has not been determined by any Governmental Body not to be in compliance with any Legal Requirement;
(xv) each Acquired Corporation has complied in all material respects with all applicable regulations and other Legal Requirements and with all applicable contractual requirements relating to the placement of legends or restrictive markings on technical data, computer software and other Acquired Corporation Proprietary Assets;
(xvi) in each case in which an Acquired Corporation has delivered or otherwise provided any technical data, computer software or Acquired Corporation Proprietary Asset to any Governmental Body in connection with any Government Contract, such Acquired Corporation has marked such technical data, computer software or Acquired Corporation Proprietary Asset with all markings and legends (including any "restricted rights" legend and any "government purpose license rights" legend) necessary (under the FAR or other applicable Legal Requirements) to ensure that no Governmental Body or other Person is able to acquire any unlimited rights with respect to such technical data, computer software or Acquired Corporation Proprietary Asset, except where failure to do so has not had and will not have a Material Adverse Effect on any Acquired Corporation;
(xvii) no Acquired Corporation has made any disclosure to any Governmental Body pursuant to any voluntary disclosure agreement;
(xviii) each Acquired Corporation has reached agreement with the cognizant government representatives approving and "closing" all indirect costs charged to Government Contracts for 1993, 1994, 1995, 1996 and 1997, and those years are closed;
(xix) none of the Acquired Corporations is subject to any "forward pricing" regulations; and
(xx) except for novation requirements, each Acquired Corporation is not and will not be required to make any filings with or give notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery or performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Offer or the Merger or any of the other transactions contemplated by this Agreement.
(f) Part 2.7(f) of the Company Disclosure Schedule provides a list of all Company Material Contracts (including all amendments thereto). The Company has provided or made available to Parent a copy of each Company Material Contract (including all amendments thereto) listed in Section 2.7(f) of the Company Disclosure Schedule, other than Company Material Contracts filed as Exhibits to the Company SEC Documents and all copies of all amendments to the Company Material Contracts filed as exhibits to the Company SEC Documents, to the extent such amendments have not been filed with the SEC.
Appears in 2 contracts
Sources: Merger Agreement (Datron Systems Inc/De), Merger Agreement (Titan Corp)
Contracts. (a) Part 2.10(a) of the Company Disclosure Schedule identifies, as of the date of this Agreement, each Company Contract that constitutes a Company Material Contract and which remains in effect as of the date hereof and under which a Tetraphase Target Company has remaining material rights or obligations. For purposes of this Agreement, each of the following Company Contracts shall be deemed to constitute a “Company Material Contract”:
(i) any Contract in effect and which has been filed (or is required to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Act, or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange Act;
(ii) any Contract: (A) constituting a Company Employee Agreement under which annual salary or other stated annual cash compensation exceeds $200,000; (B) pursuant to which any of the Tetraphase Companies is or may become obligated to make any severance, termination or similar payment to any Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) above;
(iii) any Contract with any labor union or any collective bargaining agreement or similar Contract for the benefit of any Company Associate(s);
(iviii) each material Contract pursuant to which any Intellectual Property Rights or material Intellectual Property that has been incorporated into any Company Product Target Company’s products or services and is licensed to any Tetraphase Target Company (other than non-exclusive licenses to unmodified commercially available third party software) (“In-Bound IP License”);
(iv) each Contract pursuant to which any Company IP or Intellectual Property Rights incorporated into any Target Company’s products or services is licensed by any Target Company to any third party (other than non-exclusive licenses granted in the ordinary course of business and ordinary course licenses to third-parties to use a Target Company’s trademarks in connection with marketing materials) (“Out-Bound IP License”);
(v) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Company;
(vi) any material Contract with any distributor and any material contract with any other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(vii) any material Contract (other than any purchase order entered into in the ordinary course of business) with sole source or single source suppliers to any Tetraphase Target Company of products or services, other than confidentiality or nondisclosure agreements entered into in which supplier could not otherwise be replaced with a substantially equivalent supplier without material impact on the ordinary course of businessTarget Companies;
(viiivi) any Contract that provides for: (A) reimbursement of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate, other than (in each case) (1) indemnification agreements with current and former directors and officers entered into in the ordinary course of business and (2) employment, confidentiality and consulting agreements with current and former Company Associates entered into in the ordinary course of business;
(ixvii) any Contract Contracts (A) that restricts restrict the ability of the Tetraphase Target Companies to compete in any business or with any Person in any geographical area; (B) in which the Company or any Tetraphase Target Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidateprovisions; (C) in which the Company or any Tetraphase Target Company has agreed to purchase a minimum quantity of goods relating or services, except to any product the extent such Contracts do not contain minimum purchase commitments in excess of $100,000 individually or product candidate$500,000 in the aggregate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect be material to the conduct of the business of the Tetraphase Target Companies, taken as a whole, as currently conductedor any of them individually;
(xviii) any Contract incorporating or providing for any material guarantyguaranty of any third party’s obligations, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into in the ordinary course of business or that do not deviate in and except for any material respect from standard terms and conditions of the standard forms of Contracts previously Made Available by the Company to ParentTarget Companies;
(xiix) any Contract providing for any currency hedging;
(xiix) any Contract requiring that any of the Tetraphase Target Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction, excluding for the avoidance of doubt any Contracts with provisions requiring the consent of, or notice to, the counterparty in connection with an assignment of such Contract by, or change of control of, a Target Company;
(xiiixi) any Contract providing for the lease or sublease of Tetraphase a material portion of any Target Leased Real Property;
(xivxii) any Contract that is a Government Contract;
(xvxiii) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration in an amount or having a value in excess of One Hundred and Fifty Thousand Dollars ($200,000 150,000) by the Target Companies in the fiscal year ending ended December 31, 20192021; or (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of One Hundred and Fifty Thousand Dollars ($200,000 150,000) in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 20202022;
(xvixiv) any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Target Company (without penalty in excess of Fifty Thousand Dollars ($75,00050,000)) within 120 days after the delivery of a termination notice by such Tetraphase Target Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Target Company);
(xv) any Contract relating to Debt; and
(xviixvi) any Contract, the termination of which would have a Company Material Adverse Effect. The Company has delivered or Made Available (including by filing with the SEC) to Parent an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as of the date of this Agreement.
(b) Each Company Contract that constitutes a Company Material Contract is valid and in full force and effect (except for Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period), and is enforceable in accordance with its terms, subject to: (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”).
(c) Except as set forth in Part 2.10(c) of the Company Disclosure Schedule: (i) none of the Tetraphase Target Companies has violated is in violation or breached in any material respectbreach of, or committed any default in any material respect under, any Company Material Contract, which violation, breach or default is material to the Target Companies, taken as a whole; (ii) to the knowledge of the Company, no other Person has violated or breached is, in any material respect, in violation or committed any breach of, or default in any material respect under, any Company Material Contract; (iii) to the knowledge of the Company, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) would reasonably be expected to: (A) result in a violation or breach in any material respect of any Company Material Contract, which violation or breach would be material to the Target Companies, taken as a whole; (B) give any Person the right to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 2020 and the date of this Agreement, none of the Tetraphase Target Companies has received any written notice (or, to the knowledge of the Company, any other communication) regarding any actual or possible material violation or breach of, or material default under, any Company Material Contract.
Appears in 2 contracts
Sources: Employment Agreement (AutoWeb, Inc.), Merger Agreement (AutoWeb, Inc.)
Contracts. (a) Part 2.10(aSection 4.12(a) of the Company Seller Disclosure Schedule identifiesLetter contains a list (or, as applicable, contains a cross-reference to another Section of the date Seller Disclosure Letter that lists), organized according to each subsection of this AgreementSection 4.12(a) which applies to such Contract, each Company Contract that constitutes a Company Material Contract and which remains in effect as of the date hereof and under which a Tetraphase Company has remaining material rights or obligations. For purposes of this Agreement, each of the following Company Transferred Contracts shall be deemed (other than Real Property Leases, Benefit Plans or Employment Agreements) (the contracts listed on Section 4.12(a) of the Seller Disclosure Letter together with contracts of the type described in subclauses (i)-(xiv) entered into after the date of the Original Agreement and prior to constitute a the Closing Date are collectively referred to herein as the “Company Material ContractContracts”:):
(i) any Contract in effect and which has been filed (that is required by its terms or is required currently expected to be filed) result in the payment or receipt by the Company as an exhibit pursuant to Item 601(b)(10) Business of Regulation S-K under the Exchange Act, or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange Act;
(ii) any Contract: (A) constituting a Company Employee Agreement under which annual salary or other stated annual cash compensation exceeds more than $200,000; (B) pursuant to which any of the Tetraphase Companies is or may become obligated to make any severance, termination or similar payment to any Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid 1,000,000 in the ordinary course of business); current fiscal year or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) above;
(iii) any Contract with any labor union or any collective bargaining agreement or similar Contract for the benefit of any Company Associate(s);
(iv) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than nonone-exclusive licenses to unmodified commercially available third party software);
(v) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Company;
(vi) any material Contract with any distributor and any material contract with any other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representativeyear period over its remaining term, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(vii) any material Contract (other than any purchase order entered into in the ordinary course of business) with sole source or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viii) any Contract that provides for: (A) reimbursement of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate;
(ix) any Contract (A) that restricts the ability of the Tetraphase Companies to compete in any business or with any Person in any geographical area; (B) in which the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;
(x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts orders entered into in the ordinary course of business consistent with past practice;
(ii) any Contract entered into with (x) an Affiliate, officer or director of Seller or any of its Subsidiaries or of any Transferred Entity or (y) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entity;
(iii) any Contract that do not deviate restricts the Business from competing with any Person or engaging in any line of business or activity in any geographic region in which the Business operates, other than any such restrictions that are not and would not reasonably be expected to be material respect to the Business, taken as a whole;
(iv) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Person;
(v) all Contracts pursuant to which Seller, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the standard forms aggregate or annual payments of Contracts previously Made Available less than fifty thousand dollars ($50,000) per year) (each, an “IP License”);
(vi) any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expenses;
(vii) any Contract evidencing an outstanding loan, advance or investment by the Company Business to Parentor in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b);
(viii) any Contract to make capital expenditures in excess of $1,000,000;
(ix) any Contract providing for the grant to any third-party of any right of first refusal or other similar rights to purchase any of the Business’ assets, properties or businesses;
(x) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing and terms in favor of such Person;
(xi) any Contract providing for on-going indemnification obligations as of the date of the Original Agreement by the Business other than in respect of the performance of its obligations under Contracts or other arrangements to which it is a party for goods or services furnished by or to it, except for any currency hedgingsuch agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;
(xii) any Contract requiring that any Contracts entered into with the customers or suppliers of the Tetraphase Companies give Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any written notice product or provide any information to any service from such Person prior to responding to that contain “take or prior to accepting any Acquisition Proposal pay” provisions or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;that contain minimum purchase requirements; and
(xiii) any Contract providing for which involves the lease sale, transfer or sublease acquisition of Tetraphase Leased Real Property;any business to or by any third party that was entered into since September 30, 2014 and that contains any material continuing obligations of Seller or any of its Subsidiaries.
(xivb) any Contract that is Section 4.12(b) of the Seller Disclosure Letter sets forth a Government Contract;
(xv) any Contractcomplete and correct list, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2019; (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company); and
(xvii) any Contract, the termination of which would have a Company Material Adverse Effect. The Company has delivered or Made Available (including by filing with the SEC) to Parent an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as of the date of this the Original Agreement.
, of each Contract pursuant to which Seller or any of its Subsidiaries (bother than a Transferred Entity) Each Company Contract that constitutes is a Company Material Contract is valid party pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in full force connection with, as contemplated by or otherwise related to the Overhead and effect Shared Services or Business Benefit Plans (except for Contracts that are expiredcollectively, terminated, and/or not renewed during the Pre-Closing Period), and is enforceable in accordance with its terms, subject to: (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability ExceptionsShared Contracts”).
(c) Except as set forth for terminations in Part 2.10(c) accordance with the terms of such Material Contracts after the date of the Company Disclosure Schedule: Original Agreement, each Material Contract is a legal, valid and binding obligation of Seller or one of its Subsidiaries, enforceable against such Person in accordance with its terms and, to Seller’s Knowledge, each other party thereto, and is in full force and effect subject in all cases to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a legal, valid and binding obligation, enforceable, or in full force and effect that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (iand including) the date of the Original Agreement.
(d) As of the date of the Original Agreement, none of the Tetraphase Companies has violated or breached in Seller, any material respectSubsidiary of Seller, or committed any default in any material respect underto Seller’s Knowledge, any Company other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract; , in each case other than any termination at the end of such Material Contract’s term in accordance with its terms.
(iie) Neither Seller nor any of its Subsidiaries is in breach or default under any Material Contract and, to the knowledge Knowledge of the CompanySeller, no other Person has violated party to any such Material Contract is in breach or breached in any material respectdefault thereunder, or committed any default in any material respect under, any Company Material Contract; (iii) and to the knowledge of the Company, Seller’s Knowledge no event has occurred, and no circumstance or condition exists, has occurred and is continuing that constitutes or would constitute (with or without notice or lapse of time) time or both), a breach or default on the part of Seller or any of its Subsidiaries, or any other party to such Material Contract, nor has Seller or any of its Subsidiaries received any notice of any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably be expected to: (A) result in to have a violation or breach in any material respect of any Company Material Contract; (B) give any Person the right to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received any written notice (or, to the knowledge of the Company, any other communication) regarding any actual or possible material violation or breach of, or material default under, any Company Material ContractAdverse Effect.
Appears in 2 contracts
Sources: Acquisition Agreement (SB/RH Holdings, LLC), Acquisition Agreement (Energizer Holdings, Inc.)
Contracts. (a) Part 2.10(a) of the Company Disclosure Schedule identifies, as As of the date of this Agreement, each except as set forth as an exhibit to the Company Contract that constitutes a Company Material Contract and which remains in effect as SEC Documents or on Section 3.11(a) of the date hereof and under which Company Disclosure Letter, neither the Company nor any of its Subsidiaries is a Tetraphase Company has remaining material rights party to or obligations. For purposes of this Agreement, each of the following Company Contracts shall be deemed to constitute a “Company Material Contract”bound by any:
(i) Contracts relating to Indebtedness for borrowed money or any Contract guarantee of any Indebtedness for borrowed money (other than in respect of Indebtedness for borrowed money of a wholly-owned Subsidiary of the Company) in excess of $1,000,000;
(ii) Non-competition agreements or any other agreements or arrangements that materially limit or otherwise materially restrict the Company or any of its Subsidiaries or any of their respective Affiliates or any successor thereto or that, to the Company’s Knowledge, would, after the Effective Time, limit or restrict Parent or any of its Subsidiaries (including the Surviving Corporation) or any successor thereto, in each case from engaging or competing in any line of business or in any geographic area, which agreement or arrangements would reasonably be expected to materially limit, materially restrict or materially conflict with the business of Parent and its Subsidiaries, taken as a whole (including for purposes of such determination, the Surviving Corporation and its Subsidiaries), after giving effect and which has been filed to the Merger;
(or is iii) Contracts required to be filed) by the Company filed as an exhibit to the Company’s Annual Report on Form 10-K pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Securities Act, or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange Act;
(ii) any Contract: (A) constituting a Company Employee Agreement under which annual salary or other stated annual cash compensation exceeds $200,000; (B) pursuant to which any of the Tetraphase Companies is or may become obligated to make any severance, termination or similar payment to any Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) above;
(iii) any Contract with any labor union or any collective bargaining agreement or similar Contract for the benefit of any Company Associate(s);
(iv) each material Contract Contracts, including Company Oil and Gas Agreements, where the Company or any of its Subsidiaries has received or expects to receive $1,000,000 or more in revenues pursuant to which any Intellectual Property Rights or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software)such agreements in the current fiscal year;
(v) each material Contract pursuant Contracts with respect to which the receipt of any Intellectual Property Rights goods and services involving a payment of $1,000,000 or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Companymore per annum;
(vi) Joint venture, alliance, partnership or limited liability company agreements or similar Contracts relating to the formation, creation, operation, management or control of any material Contract with any distributor and any material contract with any other reseller joint venture, alliance, partnership or sales representative, in each case limited liability company that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(vii) any material Contract (other than any purchase order entered into in the ordinary course of business) with sole source or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viii) any Contract that provides for: (A) reimbursement is material to the Company, any of its Subsidiaries or any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate;
(ix) any Contract (A) that restricts the ability of the Tetraphase Companies to compete in Oil and Gas Properties of the Company or any business or with any Person in any geographical areaof its Subsidiaries; (B) in which the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating is material to any product investment in, or product candidateother commitment to, any Related Entity of the Company; or (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;
(x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into in the ordinary course of business or that do not deviate in any material respect from the standard forms of Contracts previously Made Available by require the Company or its Subsidiaries to Parent;
(xi) any Contract providing for any currency hedging;
(xii) any Contract requiring that any of the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration in an amount or having a value make expenditures in excess of $200,000 1,000,000 or more in the current fiscal year ending December 31, 2019year; (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;or
(xvivii) any material Contract Contracts that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after would prevent, materially delay or materially impede the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company); and
(xvii) any Contract, the termination of which would have a Company Material Adverse Effect. The Company has delivered or Made Available (including by filing with the SEC) to Parent an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as consummation of the date of transactions contemplated by this Agreement.
(b) Each All Contracts to which the Company Contract or any of its Subsidiaries is a party to or bound by as of the date of this Agreement that constitutes are either (i) of the type described in clause (a) above or (ii) material Company Oil and Gas Agreements relating to Oil and Gas Properties of the Company and its Subsidiaries are referred to herein as the “Company Material Contracts.” Except, in each case, as has not, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) all Company Material Contracts are valid and binding on the Company and/or the relevant Subsidiary of the Company that is a party thereto and, to the Company’s Knowledge, each other party thereto, subject to the Bankruptcy and Equity Exception, (ii) all Company Material Contracts are in full force and effect, (iii) the Company and each of its Subsidiaries has performed all material obligations required to be performed by them under the Company Material Contracts to which they are parties, (iv) to the Company’s Knowledge, each other party to a Company Material Contract is valid and in full force and effect (except for Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period), and is enforceable in accordance with its terms, subject to: (i) laws of general application relating has performed all material obligations required to bankruptcy, insolvency and the relief of debtors; be performed by it under such Company Material Contract and (iiv) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”).
(c) Except as set forth in Part 2.10(c) of no party to any Company Material Contract has given the Company Disclosure Schedule: (i) none or any of its Subsidiaries written notice of its intention to cancel, terminate, change the Tetraphase Companies has violated scope of rights under or breached in fail to renew any material respectCompany Material Contract and neither the Company nor any of its Subsidiaries, or committed nor, to the Company’s Knowledge, any default in any material respect under, other party to any Company Material Contract; (ii) to the knowledge of the Company, no other Person has violated or breached repudiated in writing any material respectprovision thereof. Neither the Company nor any of its Subsidiaries has Knowledge of, or committed has received written notice of, any violation of or default in under (or any material respect condition which with the passage of time or the giving of notice would cause such a violation of or default under or permit termination, modification or acceleration under, ) any Company Material Contract; (iii) Contract or any other Contract to which the knowledge Company or any of the Company, no event has occurred, and no circumstance its Subsidiaries is a party or condition exists, that (with or without notice or lapse of time) would reasonably be expected to: (A) result in a violation or breach in any material respect of any Company Material Contract; (B) give any Person the right to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received any written notice (or, to the knowledge of by which the Company, any other communication) regarding of its Subsidiaries or any actual of their respective material properties or possible material violation assets is bound, except for violations or breach ofdefaults that are not, individually or material default underin the aggregate, any reasonably likely to result in a Company Material ContractAdverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Contango Oil & Gas Co), Merger Agreement (Crimson Exploration Inc.)
Contracts. (a) Part 2.10(aExcept for (x) this Agreement, (y) Contracts listed on Section 3.16 of the Company Disclosure Schedule identifiesLetter and (z) Contracts filed as exhibits to the Filed Company SEC Documents, as of the date of this Agreement, each Company Contract that constitutes a Company Material Contract and which remains in effect as none of the date hereof and under which Company or the Company Subsidiaries is a Tetraphase Company has remaining material rights party to or obligations. For purposes of this Agreement, each bound by any of the following Company Contracts shall be deemed to constitute (each such Contract, a “Company Material Contract”:):
(i) any Contract in effect and which has been filed (or is that would be required to be filed) filed by the Company as an exhibit to the Company’s Annual Report on Form 10-K pursuant to Item 601(b)(10601(b)(2), (4), (9) or (10) of Regulation S-K under the Exchange Securities Act of 1933, as amended (the “Securities Act, or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange Act”);
(ii) any Contract: (A) constituting a Contract containing covenants binding upon the Company Employee Agreement under which annual salary or other stated annual cash compensation exceeds $200,000; (B) pursuant to which the Company Subsidiaries that materially restrict the ability of the Company or any of the Tetraphase Companies is Company Subsidiaries (or may become obligated to make any severancethat, termination or similar payment to any Company Associate following the consummation of the Merger, would materially restrict the ability of the Surviving Company, the Surviving Partnership or any spouse, heir or Representative of any Company Associate; (Ctheir respective Affiliates) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest compete in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) abovebusiness or geographic area or with any Person;
(iii) any Contract with any labor union pursuant to which the Company or any collective bargaining agreement Company Subsidiary is subject to continuing indemnification or similar Contract for “earn-out” obligations (whether related to environmental matters or otherwise), in each case, that would reasonably be likely to result in payments by the benefit of Company or any Company Associate(s)Subsidiary in excess of $500,000;
(iv) each any material Contract pursuant to which partnership, limited liability company agreement, joint venture or other similar agreement entered into with any Intellectual Property Rights or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software)party;
(v) each material any Contract pursuant for the pending sale, option to which sell, right of first refusal, right of first offer or any Intellectual Property Rights other contractual right to sell, dispose of, or Intellectual Property incorporated into master lease, by merger, purchase or sale of assets or stock or otherwise, any real property, including any Company Product are licensed Property or any asset that, if purchased by the Company or any Tetraphase CompanyCompany Subsidiary, would be a Company Property;
(vi) any material Contract with concerning an interest rate cap, interest rate collar, interest rate swap, or currency hedging transaction to which the Company or any distributor and any material contract with any other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in the ordinary course of businessCompany Subsidiary is a party;
(vii) any material Contract that requires the Company or any Company Subsidiary to dispose of or acquire assets or properties (other than any purchase order entered into real property) that (together with all of the assets and properties subject to such requirement in the ordinary course such Contract) have a fair market value in excess of business) with sole source $1,000,000, or single source suppliers to involves any Tetraphase Company of products pending or servicescontemplated merger, other than confidentiality consolidation or nondisclosure agreements entered into in the ordinary course of businesssimilar business combination transaction;
(viii) any Contract that provides for: relating to indebtedness for borrowed money (Awhether incurred, assumed, guaranteed or secured by any asset) reimbursement of or under which the Company or any Company Associate forSubsidiary has, directly or indirectly, made any loan, capital contribution to, or advancement to other investment in, any Person (other than in the Company or any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (BSubsidiary) indemnification in excess of any Company Associate$2,000,000;
(ix) any Contract (A) that restricts the ability of the Tetraphase Companies to compete in any business or with any Person in any geographical area; (B) in which obligates the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions Subsidiary to make non-contingent aggregate annual expenditures (other than principal and/or interest payments or marketing or distribution rights relating the deposit of other reserves with respect to any product or product candidate; (Cdebt obligations) in which excess of $1,000,000 and is not cancelable within ninety (90) days without material penalty to the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidateSubsidiary; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;or
(x) any Contract incorporating that prohibits the pledging of the capital stock of the Company or providing any Company Subsidiary or prohibits the issuance of guarantees by any Company Subsidiary.
(b) As of the date hereof, each of the Company Material Contracts is valid, binding and enforceable on the Company or the Company Subsidiaries, as the case may be, and, to the Knowledge of the Company, each other party thereto and is in full force and effect, in each case subject to the Bankruptcy and Equity Exception, except for such failures to be valid, binding or enforceable or to be in full force and effect as would not be material to the Company and any Company Subsidiary. As of the date hereof, each of the Company and the Company Subsidiaries has complied in all material guarantyrespects with the terms and conditions of the Company Material Contracts and is not (with or without notice or lapse of time, warrantyor both) in breach or default thereunder, sharing of liabilities in each case except as would not, individually or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into in the ordinary course of business or that do not deviate in any material respect from the standard forms of Contracts previously Made Available by aggregate, reasonably be likely to have a Company Material Adverse Effect. Neither the Company to Parent;
(xi) nor any Contract providing for Company Subsidiary has received notice of any currency hedging;
(xii) violation or default under any Contract requiring that any of the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract that is a Government Contract;
(xv) any Company Material Contract, not covered by another clause of this Section 2.10(a)except for violations or defaults that would not, that: (A) involved the payment individually or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31aggregate, 2019; (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) any material Contract that has a term of more than one year and which may not reasonably be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company); and
(xvii) any Contract, the termination of which would expected to have a Company Material Adverse Effect. The Company has delivered or Made Available (including by filing with the SEC) made available to Parent an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as of the date of this Agreement.
(b) Each Company Contract that constitutes a Company Material Contract is valid and in full force and effect (except for Contracts that are expiredParent, terminated, and/or not renewed during the Pre-Closing Period), and is enforceable in accordance with its terms, subject to: (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”).
(c) Except as set forth in Part 2.10(c) of the Company Disclosure Schedule: (i) none of the Tetraphase Companies has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (ii) prior to the knowledge of the Company, no other Person has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (iii) to the knowledge of the Company, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) would reasonably be expected to: (A) result in a violation or breach in any material respect of any Company Material Contract; (B) give any Person the right to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date execution of this Agreement, none true and complete copies of all of the Tetraphase Companies has received any written notice (or, to the knowledge of the Company, any other communication) regarding any actual or possible material violation or breach of, or material default under, any Company Material ContractContracts.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Independence Realty Trust, Inc), Merger Agreement (Trade Street Residential, Inc.)
Contracts. (a) Part 2.10(a3.9(a) of the Company Disclosure Schedule identifies, identifies each Company Contract that constitutes a Material Contract as of the date of this Agreement, each Company Contract that constitutes a Company Material Contract and which remains in effect as of the date hereof and under which a Tetraphase Company has remaining material rights or obligations. For purposes of this Agreement, each of the following Company Contracts shall be deemed to constitute a “Company Material Contract”:
(i) any Company Contract (other than any Company Contract underlying any Company Stock Awards that is in the Company’s standard form) constituting a Company Employee Agreement pursuant to which the Company is or may become obligated to (A) make any severance, termination, or similar payment to any Company Associate or any spouse or heir of any Company Associate except for severance, termination or similar payments required by applicable Legal Requirements that do not exceed $300,000 per beneficiary, (B) make any bonus, deferred compensation or similar payment (other than payments constituting base salary, bonuses or commissions paid in the ordinary course of business consistent with past practice) in excess of $300,000 to any Company Associate or (C) grant or accelerate the vesting of, or otherwise modify, any Company Stock Award;
(ii) any Company Contract that is a settlement, conciliation or similar agreement with any Governmental Body and pursuant to which (A) an Acquired Company will be required after the date of this Agreement to make any payments or (B) that contains material obligations or limitations on such Acquired Company’s conduct;
(iii) any Company Contract (A) granting any covenant not to ▇▇▇ or otherwise limiting the freedom or right of an Acquired Company, in any material respect, to engage in any line of business, to make use of any material Company IP (or enforce any of its rights thereunder) or to compete with any other Person in any location or line of business or (B) containing any “most favored nations” terms and conditions (including with respect to pricing) granted by an Acquired Company or exclusivity obligations or restrictions or otherwise limiting the freedom or right of an Acquired Company to sell, distribute or manufacture any products or services or any technology or other assets to or for any other Person;
(iv) any Company Contract (A) under which aggregate payments in excess of $1,000,000 were made or required to be made by the Acquired Companies during the fiscal year ending December 31, 2016 or (B) that requires by its terms or is reasonably likely to require the payment or delivery of cash or other consideration by or to an Acquired Company in an amount having an expected value in excess of $1,000,000 in the fiscal year ending December 31, 2017 or in any fiscal year thereafter and cannot be cancelled by the Acquired Companies without penalty or further payment without more than 30 days’ notice;
(v) any Company Contract that contains terms relating to (A) the pricing or reimbursement terms for any Key Product, (B) the marketing or distribution of any Key Product (for the avoidance of doubt, excluding any Contract solely in respect of courier services), or (C) the purchase from any Acquired Company of any Key Product;
(vi) any Company Contract (or series of related Company Contracts) relating to any Indebtedness in excess of $250,000 (whether incurred, assumed, guaranteed or secured by any asset) of the Company or any Acquired Company or subjecting to any Encumbrance (other than Permitted Encumbrances) any right or other asset or property of any Acquired Company;
(vii) any Company Contract constituting a joint venture, partnership, collaboration, limited liability corporation or other similar profit sharing arrangement;
(viii) any Company Contract that requires or permits an Acquired Company, or any successor, to, or acquirer of an Acquired Company, to make any payment to another person as a result of the direct or indirect change of control of such Acquired Company as a result of the Transactions (a “Change of Control Payment”) or gives another Person a right to receive or elect to receive a Change of Control Payment;
(ix) any Company Contract that prohibits the payment of dividends or distributions in respect of the capital stock of the Company or any Acquired Company, the pledging of the capital stock or other equity interests of the Company or any Acquired Company or prohibits the issuance of any guaranty by the Company or any Acquired Company;
(x) any In-bound License and any Out-bound License;
(xi) any Company Contract pursuant to which the Company has continuing obligations or interests involving (A) “milestone” or other similar contingent payments, including upon the achievement of regulatory or commercial milestones which would result in a payment in excess of $500,000, or (B) payment of royalties or other amounts calculated based upon any revenues or income of the Company, in each case that cannot be terminated by the Company without more than sixty (60) days’ notice and without payment or penalty;
(xii) any other Company Contract that is currently in effect and which has been filed (or is required to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Act, Securities Act or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange Securities Act;
(iixiii) any Contract: Company Contract with any Affiliate, director, executive officer (Aas such term is defined in the Exchange Act), holder of 5% or more of Company Common Stock or, to the knowledge of the Company, any of their Affiliates (other than the Company) constituting a Company Employee Agreement under which annual salary or other stated annual cash compensation exceeds $200,000; (B) pursuant to which immediate family members of any of the Tetraphase Companies is or may become obligated to make any severance, termination or similar payment to any Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment foregoing (other than payments constituting bonuses offer letters that can be terminated at will without severance obligations and Company Contracts evidencing Company Stock Awards);
(xiv) any Company Contract for the lease or commissions paid sublease of any material real property;
(xv) any Company Contract that is a settlement, conciliation, or other similar agreement relating to any Legal Proceeding or threatened Legal Proceeding in respect of any Key Product;
(xvi) any Company Contract that is a manufacturing or supply agreement for any Key Product, including any sole source supply agreements;
(xvii) any Company Contract that primarily relates to the research, development, distribution, marketing, supply, collaboration, co-promotion or manufacturing of the Company’s product candidates CPP-1X or VTS-270, which, if terminated or not renewed, would reasonably be expected to have a material and adverse effect on the Company’s product candidate CPP-1X or VTS-270, as applicable;
(xviii) any Company Contract since January 1, 2016 that relates to the acquisition or disposition of any material business, a material amount of stock or assets of any Person or any real property (whether by merger, sale of stock, sale of assets or otherwise) but excluding any material transfer agreements, clinical trial agreements and non-exclusive licenses granted in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) abovebusiness consistent with past practice;
(iiixix) any Company Contract with any labor union Governmental Body under which payments in excess of $250,000 were received by the Acquired Companies in the most recently completed fiscal year or under which payments in excess of such amount are reasonably expected to be made in the current or any collective bargaining agreement or similar Contract for the benefit of any Company Associate(s)future fiscal year;
(ivxx) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software);
(v) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Company;
(vi) any material Contract with any distributor and any material contract with any other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(vii) any material Contract (other than any purchase order entered into in the ordinary course of business) with sole source or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viii) any Contract that provides for: (A) reimbursement for indemnification or guarantee of the obligations of any Company Associate for, or advancement other Person that would be material to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate;
(ix) any Contract (A) that restricts the ability of the Tetraphase Companies to compete in any business or with any Person in any geographical area; (B) in which the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Acquired Companies, taken as a whole, as currently conducted;
(x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than any such Company Contracts entered into in the ordinary course of business or that do not deviate in any material respect from the standard forms of Contracts previously Made Available by the Company to Parent;
(xi) any Contract providing for any currency hedging;
(xii) any Contract requiring that any of the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2019; (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company)consistent with past practice; and
(xviixxi) any Contracthedging, swap, derivative or similar Company Contract other than any Company Stock Award.
(b) As of the date of this Agreement, the termination of which would have a Company Material Adverse Effect. The Company has either delivered or Made Available (including by filing with the SEC) made available to Parent or Parent’s Representatives an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as or has publicly made available such Material Contract in the Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) database of the date SEC. Neither the applicable Acquired Company nor, to the knowledge of this Agreement.
(b) Each Company Contract that constitutes a Company the Company, any other party thereto is in material breach of or material default under any Material Contract is and neither the applicable Acquired Company nor, to the knowledge of the Company, any other party thereto has taken or failed to take any action that with or without notice, lapse of time or both would constitute a material breach of or material default under any Material Contract. Each Material Contract is, with respect to the applicable Acquired Company and, to the knowledge of the Company, any other party thereto, a valid agreement, binding and in full force and effect (except for Contracts that are expiredeffect. To the knowledge of the Company, terminated, and/or not renewed during the Pre-Closing Period), and each Material Contract is enforceable by the applicable Acquired Company in accordance with its terms, subject to: except as such enforceability may be limited by (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; debtors and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”).
(c) Except as set forth in Part 2.10(c) of the Company Disclosure Schedule: (i) none of the Tetraphase Companies has violated or breached in any material respectremedies. Since January 1, or committed any default in any material respect under, any Company Material Contract; (ii) to the knowledge of the Company, no other Person has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (iii) to the knowledge of the Company, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) would reasonably be expected to: (A) result in a violation or breach in any material respect of any Company Material Contract; (B) give any Person the right to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and 2016 through the date of this Agreement, none of the Tetraphase Companies no Acquired Company has received any written notice (or, to the knowledge of the Company, any other communication) regarding any actual material violation, breach or possible material violation or breach of, or material default under, under any Material Contract that has not since been cured. No Acquired Company has waived in writing any rights under any Material Contract, the waiver of which would have, either individually or in the aggregate, a Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Sucampo Pharmaceuticals, Inc.), Merger Agreement (Mallinckrodt PLC)
Contracts. (a) Part 2.10(a) of the Company Disclosure Schedule identifies, as of the date of Except for this Agreement, each neither the Company Contract that constitutes nor any Company Subsidiary is a Company Material Contract and which remains in effect as of the date hereof and under which a Tetraphase Company has remaining material rights or obligations. For purposes of this Agreement, each of the following Company Contracts shall be deemed party to constitute a “Company Material Contract”:
(i) any Contract in effect and which has been filed (or is required to be filed) filed by the Company as an exhibit a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Exchange ActSecurities Act (a “Filed Company Contract”) that has not been so filed.
(b) Section 3.13(b) of the Company Disclosure Letter sets forth, as of the date of this Agreement, a true and complete list, and the Company has made available to Parent true and complete copies (including all amendments and supplements thereto), of each:
(i) agreement, Contract, understanding, or undertaking to which the Company or any of the Company Subsidiaries is a party that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange Act;
(ii) any Contract: (A) constituting a Company Employee Agreement under which annual salary or other stated annual cash compensation exceeds $200,000; (B) pursuant to which any of the Tetraphase Companies is or may become obligated to make any severance, termination or similar payment to any Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) above;
(iii) any Contract with any labor union or any collective bargaining agreement or similar Contract for the benefit of any Company Associate(s);
(iv) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software);
(v) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Company;
(vi) any material Contract with any distributor and any material contract with any other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(vii) any material Contract (other than any purchase order entered into in the ordinary course of business) with sole source or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viii) any Contract that provides for: (A) reimbursement of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate;
(ix) any Contract (A) that restricts the ability of the Tetraphase Companies Company or the Company Subsidiaries to compete in any business or with any Person in any geographical area; area (B) could reasonably be expected to restrict the ability of Parent or any of its Subsidiaries to compete in any business or with any Person in any geographical area after the Effective Time, or (C) grants any right of first refusal, right of first offer or similar right with respect to any material assets, rights or properties of the Company or the Company Subsidiaries,
(ii) agreement or Contract that obligates the Company or any Company Subsidiary to conduct business on an exclusive or preferential basis or that contains a “most favored nation” or similar covenant,
(iii) (A) loan and credit agreement, Contract, note, debenture, bond, indenture, mortgage, security agreement, pledge, hedging agreement or other similar agreement pursuant to which any Indebtedness of the Company or any of the Company Subsidiaries is outstanding or may be incurred, other than any such agreement solely between or among the Company and the wholly owned Company Subsidiaries, or (B) agreement, Contract, understanding or undertaking relating to the mortgaging, pledging or the placing of any Lien (other than Permitted Liens) on any material asset of the Company or any Company Subsidiary,
(iv) Partnership, joint venture or similar agreement, Contract, understanding or undertaking to which the Company or any Tetraphase of the Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights Subsidiaries is a party relating to the formation, creation, operation, management or control of any product partnership or product candidate; joint venture;
(Cv) agreement, Contract, understanding or undertaking with any Company Top Supplier,
(vi) Current Government Contract involving current annual payments to the Company or any Company Subsidiary in excess of $5,000,000,
(vii) Company Lease;
(viii) Judgment that provides for any material injunctive or other non-monetary relief after the date of this Agreement;
(ix) agreement, Contract, understanding or undertaking with any current or former officer, director or Affiliate of the Company or any Company Subsidiary or any of their respective “associates” or “immediate family members” (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act),other than any Company Plan,
(x) (A) agreement, Contract, understanding or undertaking with respect to any material Intellectual Property Rights pursuant to which the Company or any Tetraphase Company has agreed Subsidiary is a licensee (other than to purchase “off-the-shelf” or “shrink wrap” licenses generally available to the public as of the Closing) or (B) joint development agreement to which the Company or any Company Subsidiary is a minimum quantity of goods party,
(xi) agreement, Contract, understanding or undertaking relating to any product the disposition or product candidate; or (D) which provides for “exclusivity” acquisition by the Company or any similar requirement in favor of the Company Subsidiaries of any third partybusiness or Person (whether by merger, purchase of equity interests or otherwise) or any material amount of assets (excluding dispositions or acquisitions which were consummated prior to the date of this Agreement and with respect to which there is no ongoing liability or obligation of the Company or any Company Subsidiaries), and
(xii) agreement, Contract, understanding or undertaking not otherwise described above that involves annual payments to or from the Company or any Company Subsidiary in excess of $5,000,000 individually or $15,000,000 in the aggregate. Each agreement, Contract, understanding or undertaking of the type described in this Section 3.13(b) and each case which restriction Filed Company Contract is referred to herein as a “Company Material Contract”.
(c) Except for matters which, individually or in the aggregate, have not had and would or would not reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;
(x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into in the ordinary course of business or that do not deviate in any material respect from the standard forms of Contracts previously Made Available by the Company to Parent;
(xi) any Contract providing for any currency hedging;
(xii) any Contract requiring that any of the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2019; (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company); and
(xvii) any Contract, the termination of which would have a Company Material Adverse Effect. The Company has delivered or Made Available , (including by filing with the SECi) to Parent an accurate and complete copy of each Company Material Contract (including, for purposes of this Section 3.13(c), any Contract entered into after the date of this Agreement that constitutes would have been a Company Material Contract as of if such Contract existed on the date of this Agreement.
) is a valid, binding and legally enforceable obligation of the Company or one of the Company Subsidiaries, as the case may be, and, to the Knowledge of the Company, of the other parties thereto, except, in each case, as enforcement may be limited by the Bankruptcy and Equity Exception, (bii) Each Company Contract that constitutes a each such Company Material Contract is valid and in full force and effect (except for Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period), and is enforceable in accordance with its terms, subject to: (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (iiiii) rules none of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”).
(c) Except as set forth in Part 2.10(c) Company or any of the Company Disclosure Schedule: (i) none of the Tetraphase Companies has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (ii) to the knowledge of the Company, no other Person has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (iii) to the knowledge of the Company, no event has occurred, and no circumstance or condition exists, that Subsidiaries is (with or without notice or lapse of time, or both) in breach or default under any such Company Material Contract and, to the Knowledge of the Company, no other party to any such Company Material Contract is (with or without notice or lapse of time, or both) in breach or default thereunder. To the Knowledge of the Company, no event, circumstance or condition exists which, with or without notice or lapse of time or both, would reasonably be expected to: (A) to result in a violation breach or breach in default by the Company, any material respect Company Subsidiary or any other party thereto of any Company Material Contract; (B) give any Person the right to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received any written notice (or, to the knowledge of the Company, any other communication) regarding any actual or possible material violation or breach of, or material default under, any Company Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Jacobs Engineering Group Inc /De/), Merger Agreement (Keyw Holding Corp)
Contracts. (a) Part 2.10(a) Included in Schedule 4.12 hereto is a copy of the Company Disclosure Schedule identifiesevery material contract, as of the date of this Agreement, each Company Contract that constitutes a Company Material Contract and which remains in effect as of the date hereof and under which a Tetraphase Company has remaining material rights or obligations. For purposes of this Agreement, each of the following Company Contracts shall be deemed to constitute a “Company Material Contract”:
(i) any Contract in effect and which has been filed (or is required to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Act, or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange Act;
(ii) any Contract: (A) constituting a Company Employee Agreement under which annual salary or other stated annual cash compensation exceeds $200,000; (B) pursuant to which any of the Tetraphase Companies is or may become obligated to make any severance, termination or similar payment to any Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) above;
(iii) any Contract with any labor union or any collective bargaining agreement or similar Contract for the benefit of any Company Associate(s);
(iv) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software);
(v) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Company;
(vi) any material Contract with any distributor and any material including every contract with any other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(vii) any material Contract (other than any purchase order entered into in the ordinary course of business) with sole source or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viii) any Contract that provides for: (A) reimbursement of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate;
(ix) any Contract (A) that restricts the ability of the Tetraphase Companies to compete in any business or with any Person in any geographical area; (B) in which the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;
(x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into not made in the ordinary course of business which is material to MRG and is to be performed in whole or that do in part at or after the date hereof or was entered into not deviate more than two years before the date hereof by MRG (consisting only of contracts as to which MRG is a party or to which it has succeeded to a party by assumption or assignment or in any material respect from the standard forms of Contracts previously Made Available by the Company to Parentwhich MRG has a beneficial interest);
(xib) any Contract providing for any currency hedging;
(xii) any Contract requiring that any of the Tetraphase Companies give any written notice Except as described in this Agreement or provide any information to any Person prior to responding in Schedule 4.12 hereto, MRG is not a party to or prior to accepting bound by, and the properties of MRG are not subject to, any Acquisition Proposal or similar proposal, or prior to entering into any discussionsmaterial contract, agreement, other commitment or instrument or any charter or other corporate restriction or any judgment, order, writ, injunction, decree, or award which materially and adversely affects, or in the future may (as far as MRG can now foresee) materially and adversely affect, the business operations, properties, assets, or condition of MRG; and
(c) Except as included or described in Schedule 4.12 hereto or reflected in the most Current MRG Balance Sheet, MRG is not a party to any material oral or written (i) contract for the employment of any officer, director, or employee which is not terminable on 30 days (or less) notice; (ii) profit sharing, bonus, deferred compensation, stock option, severance pay, pension benefit or retirement plan, agreement, or arrangement covered by title IV of the Employee Retirement Income Security Act, as amended; (iii) agreement, contract, or understanding indenture relating to the borrowing of money; (iv) guarantee of any Acquisition Transaction;
(xiii) any Contract providing obligation for the lease borrowing of money or sublease otherwise, excluding endorsements made for collection and other guarantees of Tetraphase Leased Real Property;
obligations, which, in the aggregate do not exceed $1,000; (xivv) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash consulting or other consideration in similar contract with an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2019; (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) any material Contract that has a unexpired term of more than one year and which may not be terminated by a Tetraphase Company (without penalty or providing for payments in excess of $75,0001,000 in the aggregate; (vi) within 120 days after collective bargaining agreement; (vii) agreement with any present or former officer or director of MRG; or (viii) other contract, agreement, or other commitment involving payments by it of more than $1,000 in the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company); and
(xvii) any Contract, the termination of which would have a Company Material Adverse Effect. The Company has delivered or Made Available (including by filing with the SEC) to Parent an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as of the date of this Agreementaggregate.
(b) Each Company Contract that constitutes a Company Material Contract is valid and in full force and effect (except for Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period), and is enforceable in accordance with its terms, subject to: (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”).
(cd) Except as set forth included or described in Part 2.10(c) of the Company Disclosure Schedule: (i) none of the Tetraphase Companies has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (ii) to the knowledge of the CompanySchedule 4.12 hereto, no contract with any broker, underwriter, market maker or other Person has violated agent of MRG, dealing in MRG's securities or breached selling said securities on behalf of MRG, is now in existence, nor will any material respect, or committed any default in any material respect under, any Company Material Contract; (iii) to such agreement come into existence by the knowledge of the Company, no event has occurred, and no circumstance or condition exists, that (with or without notice or mere lapse of time) would reasonably be expected to: (A) result in a violation or breach in any material respect of any Company Material Contract; (B) give any Person the right to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received any written notice (or, to the knowledge of the Company, any other communication) regarding any actual or possible material violation or breach of, or material default under, any Company Material Contract.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Montgomery Realty Group Inc), Purchase and Sale Agreement (Montgomery Realty Group Inc)
Contracts. (a) Part 2.10(aSection 3.15(a) of the Company Trident Disclosure Schedule identifiessets forth, as of the date of this Agreement, each Company Contract that constitutes a Company Material Contract true and which remains in effect as of complete list, and Trident has made available to Sun prior to the date hereof and under which a Tetraphase Company has remaining material rights or obligations. For purposes of this AgreementAgreement true and complete copies (including all material amendments, each of the following Company Contracts shall be deemed to constitute a “Company Material Contract”modifications, extensions, renewals, schedules, exhibits or ancillary agreements with respect thereto), of:
(i) any each Contract in effect and which has been filed (or is that would be required to be filed) filed by the Company Trident as an exhibit a “material contract” pursuant to Item 601(b)(10601 (b)(10) of Regulation S-K under the Exchange Act, or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange Securities Act;
(ii) each Contract to which Trident or any Contract: of the Trident Subsidiaries is a party involving expected annual revenues or expected annual expenditures in excess of $5,000,000 in 2023;
(iii) each Contract to which Trident or any of the Trident Subsidiaries is a party that restricts in any material respect the ability of Trident or any of the Trident Subsidiaries (A) constituting a Company Employee Agreement under which annual salary to compete or other stated annual cash compensation exceeds $200,000; engage in any line of business or with any Person in any geographical area, (B) to sell, supply or distribute any material Trident Offering, use or enforce any material Intellectual Property Rights owned by or exclusively licensed to Trident or any Trident Subsidiary, (C) to solicit any (potential or actual) customer or supplier, or (D) that otherwise has the effect of materially restricting Trident, the Trident Subsidiaries or any of their respective affiliates from the development, marketing or distribution of Trident Offerings, in each case, in any geographic area;
(iv) each Contract to which Trident or any of the Trident Subsidiaries is a party that is material and obligates Trident or a Trident Subsidiary to conduct business with any third party on a preferential or exclusive basis, or that includes “most favored nation” or similar provisions;
(A) each loan and credit agreement, Contract, note, debenture, bond, indenture, mortgage, security agreement, pledge, or other similar agreement pursuant to which any Indebtedness of Trident or any of the Tetraphase Companies Trident Subsidiaries in excess of $5,000,000 is outstanding or may become obligated be incurred, other than any such agreement between or among Trident and one or more wholly owned Trident Subsidiaries and (B) each Contract governing or amending, modifying, supplementing or otherwise relating to make the Trident Indenture (including any severancehedging obligations entered into in connection therewith);
(vi) each partnership, termination joint venture or similar payment Contract to any Company Associate which Trident or any spouseof the Trident Subsidiaries is a party relating to the formation, heir creation, operation, management or Representative control of any Company Associate; partnership or joint venture or to the ownership of any equity interest in any entity or business enterprise other than the wholly owned Trident Subsidiaries;
(Cvii) each Contract to which Trident or any of the Trident Subsidiaries is a party that contains covenants, indemnities or other continuing obligations (including “earnout” or other contingent payment obligations) that would reasonably be expected to result in the making by Trident or any Trident Subsidiary of future payments in excess of $5,000,000;
(viii) each Contract pursuant to which Trident or the Trident Subsidiaries receives from any of the Tetraphase Companies is or may become obligated to make any bonus third party a license or similar payment right to any Intellectual Property Right material to Trident and the Trident Subsidiaries taken as a whole, and that are not (other than payments constituting bonuses or commissions paid A) non-exclusive licenses granted in the ordinary course of business); (B) Contracts under which open source technology is licensed; or (DC) pursuant to which any of the Tetraphase Companies is Contracts with current or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) above;
(iii) any Contract with any labor union or any collective bargaining agreement or similar Contract for the benefit of any Company Associate(s);
(iv) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property former employees and service providers that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software);
(v) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Company;
(vi) any material Contract with any distributor and any material contract with any other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements were entered into in the ordinary course of business;
(viiix) each Contract with a Governmental Entity to which Trident or a Trident Subsidiary is a party, and pursuant to which Trident or a Trident Subsidiary has any material Contract (future obligation other than any purchase order entered into in the ordinary course provision of business) with sole source or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viii) any Contract that provides for: (A) reimbursement of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate;
(ix) any Contract (A) that restricts the ability of the Tetraphase Companies to compete in any business or with any Person in any geographical area; (B) in which the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;
(x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into Trident Offerings in the ordinary course of business or that do not deviate in any material respect from the standard forms of Contracts previously Made Available by the Company to Parent;
(xi) any Contract providing for any currency hedging;
(xii) any Contract requiring that any of the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2019; (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company)consistent with past practice; and
(xviix) each Contract that gives any Person the right to acquire any material assets of Trident or any Trident Subsidiary (excluding ordinary course commitments to purchase Trident products) after the date hereof. Each agreement, understanding or undertaking of the type described in this Section 3.15(a) is referred to herein as a “Trident Material Contract”.
(b) Except for matters which, individually or in the termination of which aggregate, have not had and would not reasonably be expected to have a Company Trident Material Adverse Effect. The Company has delivered or Made Available , (including by filing with the SECi) to Parent an accurate and complete copy of each Company Contract that constitutes a Company Trident Material Contract as (including, for purposes of this Section 3.15(b), any Contract entered into after the date of this Agreement that would have been a Trident Material Contract if such Contract existed on the date of this Agreement.
) is a valid, binding and legally enforceable obligation of Trident or one of the Trident Subsidiaries, as the case may be, and, to the Knowledge of Trident, of the other parties thereto, except, in each case, as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Laws affecting creditors’ rights generally and by general principles of equity; (bii) Each Company Contract that constitutes a Company each such Trident Material Contract is valid and in full force and effect (except for Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period), and is enforceable in accordance with its terms, subject to: (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”).
(c) Except as set forth in Part 2.10(c) of the Company Disclosure Schedule: (i) none of the Tetraphase Companies has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (ii) to the knowledge of the Company, no other Person has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contracteffect; (iii) to the knowledge none of Trident or any of the Company, no event has occurred, and no circumstance or condition exists, that Trident Subsidiaries is (with or without notice or lapse of time, or both) would reasonably be expected to: in breach or default under any such Trident Material Contract and, to the Knowledge of Trident, no other party to any such Trident Material Contract is (Awith or without notice or lapse of time, or both) result in a violation breach or breach in any material respect of any Company Material Contractdefault thereunder; (Biv) give any Person to the right Knowledge of Trident, each other party to declare a default in any Trident Material Contract has performed all material respect obligations required to be performed by it under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company such Trident Material Contract; and (ivv) between December 31, 2018 and the date of this Agreement, none no party to any Trident Material Contract has given Trident or any of the Tetraphase Companies has received any written Trident Subsidiaries notice (orwhether written or oral) of its intention to cancel, terminate, change the scope of rights under or fail to renew any Trident Material Contract and neither Trident nor any of the Trident Subsidiaries, nor, to the knowledge Knowledge of the CompanyTrident, any other communication) regarding party to any actual or possible material violation or breach of, or material default under, any Company Trident Material Contract, has repudiated (whether orally or in writing) any material provision thereof. No Trident Material Contract can be reasonably expected to prevent or materially delay the consummation of the Mergers or any of the other transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (3d Systems Corp), Merger Agreement (3d Systems Corp)
Contracts. (a) Part 2.10(a2.9(a) of the Company Disclosure Schedule identifies, as of the date of this Agreement, identifies each Company Contract that constitutes a “Company Material Contract and which remains in effect Contract” as of the date hereof and under which a Tetraphase Company has remaining material rights or obligationshereof. For purposes of this Agreement, each of the following Company Contracts shall be deemed to constitute a “Company Material Contract”:
(i) any Company Contract in effect and which has been filed (or that is a material contract required to be filed) by the Company filed as an exhibit pursuant to Item 601(b)(10601(b)(4) or (10) of Regulation S-K under the Exchange ActAct to any registration statement, proxy statement or that would be required to be disclosed under Item 404 of Regulation S-K under other statement, report, schedule, form or other document filed by any Company Entity with the Exchange ActSEC;
(ii) any Contract: Contract (A) constituting a Company Employee Agreement under which annual salary for a Designated Position, or other stated annual cash compensation exceeds $200,000; (B) pursuant to which any of the Tetraphase Companies is or may become obligated to make any severance, termination or similar payment to any Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies Entities is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, restricted stock unit, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) aboveCompany Entities;
(iii) any Contract with contemplating an exclusive or preferential relationship between any labor union Company Entity and any other Person, including any “most favored nation” or any collective bargaining agreement “most favored customer” or similar Contract for the benefit provision in favor of any Company Associate(s)such other Person;
(iv) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software);
(v) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Company;
(vi) any material Contract with any distributor and any material contract with any other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(vii) any material Contract (other than any purchase order entered into in the ordinary course of business) with sole source or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viii) any Contract that provides forimposes any restriction in any material respect on the right or ability of any Company Entity: (A) reimbursement of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated compete with any Legal Proceeding or the defense thereofother Person; or (B) indemnification of to perform services for any Company Associateother Person;
(ixv) any Contract (A) that restricts the ability of the Tetraphase Companies to compete in any business incorporating or with any Person in any geographical area; (B) in which the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity guaranty of goods relating to any product or product candidate; third party obligations, or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;
(x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligationB), other than Contracts entered into in the ordinary course of business or that do not deviate in consistent with past practice, imposing any material respect from the standard forms obligations under any warranty, sharing of Contracts previously Made Available by the Company to Parentliabilities, indemnity or similar obligation;
(xivi) any Contract providing for relating to any currency or other hedging;
(xii) any Contract requiring that any of the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xivvii) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved contemplates or involves the payment or delivery of cash or other consideration (by or to any Company Entity) in an amount or having a value in excess of $200,000 3,000,000 in the fiscal year ending December 31aggregate, 2019; or contemplates or involves the performance of services (Bby or for any Company Entity) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 3,000,000 in the fiscal year ending December 31aggregate;
(viii) any Contract that: (A) provides for the authorship, 2020; invention, creation, conception or other development of any Intellectual Property or Intellectual Property Rights (C1) involved the performance by any Company Entity for any Person or (2) for any Company Entity by any Person (other than with respect to this subsection (A)(2), Company IP Assignment Contracts with employees, consultants or independent contractors of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019any Company Entity that are on such Company Entity’s standard unmodified forms Made Available to Parent); or (DB) requires provides for the assignment or other transfer of any ownership interest in any material Intellectual Property or Intellectual Property Rights (1) by its terms the performance any Company Entity to any Person or (2) to any Company Entity from any Person (other than with respect to this subsection (B)(2), Company IP Assignment Contracts with employees, consultants or independent contractors of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020any Company Entity that are on such Company Entity’s standard unmodified forms Made Available to Parent);
(xviix) any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality joint venture or nondisclosure agreements entered into by any Tetraphase Company)similar Contract; and
(xviix) any other Contract, the if a breach or termination of which such Contract would have have, or would reasonably be expected to have, a Company Material Adverse Effect. .
(b) The Company has delivered or Made Available (including by filing with the SEC) to Parent an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as of the date of this Agreementhereof.
(bc) Each Except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Company Material Adverse Effect, each Company Contract that constitutes a Company Material Contract as of the date hereof is valid and in full force and effect (except for Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period)effect, and is enforceable in accordance with its terms, subject to: (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”)remedies.
(cd) Except as set forth as, individually or in Part 2.10(c) of the aggregate, has not had, and would not reasonably be expected to have, a Company Disclosure ScheduleMaterial Adverse Effect: (i) none of the Tetraphase Companies Company Entities has violated or breached in any material respectbreached, or committed any default in any material respect under, any Company Material Contract; (ii) to the knowledge Knowledge of the Company, no other Person has violated or breached in any material respectbreached, or committed any default in any material respect under, any Company Material Contract; (iii) to the knowledge of the Company, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) would reasonably be expected to: (A) result in a violation or breach in any material respect of any Company Material Contract; (B) give any Person the right to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iviii) between December 31since November 15, 2018 and the date of this Agreement2017, none of the Tetraphase Companies Company Entities has received any written notice (or, to the knowledge of the Company, any or other communication) , written or otherwise, regarding any actual or possible material violation or breach of, or material default under, any Company Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Gulfmark Offshore Inc), Merger Agreement (Tidewater Inc)
Contracts. (a) Part 2.10(a3.10(a) of the Company Parent Disclosure Schedule identifies, identifies each Parent Contract that constitutes a Parent Material Contract as of the date of this Agreement, each Company Contract that constitutes a Company Material Contract and which remains in effect as of the date hereof and under which a Tetraphase Company has remaining material rights or obligationshereof. For purposes of this Agreement, each of the following Company Parent Contracts shall be deemed to constitute a “Company Parent Material Contract”:
(i) any Contract in effect and which has been filed (or is required to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Act, or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange Act;
(ii) any Contract: (A) constituting a Company Parent Employee Agreement under which annual salary or other stated annual cash that provides aggregate compensation exceeds and benefits in excess of $200,000250,000; (B) pursuant to which any of the Tetraphase Companies Oclaro Corporations is or may become obligated to make any severance, termination or similar payment to any Company Parent Associate or any spouse, heir or Representative of any Company AssociateParent Associate except for severance, termination or similar payments required by applicable Legal Requirements or in an amount less than $50,000; (C) pursuant to which any of the Tetraphase Companies Oclaro Corporations is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses base salary or commissions paid in the ordinary course of business)) in excess of $50,000 to any Parent Associate; or (D) pursuant to which any of the Tetraphase Companies Oclaro Corporations is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant Oclaro Corporations;
(ii) any Contract identified or required to agreements on forms described be identified in Section 2.10(a)(i) abovePart 3.9 of the Parent Disclosure Schedule;
(iii) any Contract with any labor union or any collective bargaining agreement or similar Contract for the benefit of any Company Associate(s);
(iv) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software);
(v) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Company;
(vi) any material Contract with any distributor and any material contract with any other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viiiv) any material Contract (other than any purchase order entered into in the ordinary course of business) with sole sole-source or single single-source suppliers to any Tetraphase Company Oclaro Corporation of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of businessservices that are material to any Oclaro Corporation;
(viiiv) any Contract that provides for: (A) reimbursement of any Company Parent Associate for, or advancement to any Company Parent Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Parent Associate;
(ixvi) any Contract imposing any restriction on the right or ability of any Oclaro Corporation: (A) that restricts the ability of the Tetraphase Companies to compete in any business or with any Person in any geographical areaother Person; (B) in which the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to acquire any product or product candidateother asset or any services from any other Person; (C) in which the Company to solicit, hire or retain any Tetraphase Company has agreed Person as a director, an officer or other employee, a consultant or an independent contractor; (D) to purchase a minimum quantity of goods relating to develop, sell, supply, distribute, offer, support or service any product or product candidateany technology or other asset to or for any other Person; (E) to perform services for any other Person; or (DF) which provides for “exclusivity” or to transact business with any similar requirement in favor of any third partyother Person, in each case which restriction would or would reasonably be expected to materially and adversely affect affect: (x) the conduct of the business of the Tetraphase Companies, taken as a whole, Oclaro Corporations as currently conducted or as currently proposed by the Oclaro Corporations to be conducted; or (y) the design, development, manufacturing, reproduction, marketing, licensing, sale, offer for sale, importation, distribution, performance, display, creation of derivative works by any Oclaro Corporation with respect to and/or use of any Parent Product;
(xvii) any Contract relating to any currency hedging;
(viii) any Contract incorporating or providing for relating to any material guaranty, any warranty, any sharing of liabilities or any indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into in the ordinary course of business or that do not deviate in any material respect from the standard forms of Contracts previously delivered or Made Available by the Company Parent to Parentthe Company;
(xi) any Contract providing for any currency hedging;
(xiiix) any Contract requiring that any of the Tetraphase Companies Oclaro Corporations give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiiix) any Contract providing for relating to the lease or sublease of Tetraphase Oclaro Leased Real Property;
(xivxi) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 1,500,000 in the fiscal year ending December 31ended July 1, 20192011; (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 1,500,000 in the fiscal year ending December 31July 1, 20202012; (C) involved the performance of services having a value in excess of $200,000 750,000 in the fiscal year ended December 31July 1, 20192011; or (D) requires by its terms the performance of services having a value in excess of $200,000 750,000 in the fiscal year ending December 31July 1, 20202012;
(xvixii) Any Contract requiring that any material Contract that has a term of Oclaro Corporation: (A) give more than one year 180 days notice prior to discontinuing any Parent Product; (B) continue to deliver any Parent Product and/or spare parts for any Parent Product more than 180 days following any notice of discontinuance of such Parent Product or spare part; (C) continue to deliver any Parent Product and/or spare parts for any Parent Product more than five years following the termination or expiration of the Contract; and which may not be terminated by a Tetraphase Company (without penalty in excess D) continue to deliver warranty service or out-of-warranty service more than three years following the termination or expiration of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company)Contract; and
(xviixiii) any Contract, the termination of which would reasonably be expected to have a Company Parent Material Adverse Effect. The Company Except to the extent filed (in unredacted form) as an exhibit to a Parent SEC Document prior to the date of this Agreement, Parent has delivered or Made Available (including by filing with to the SEC) to Parent Company an accurate and complete copy of each Company Parent Contract that constitutes a Company Parent Material Contract as of the date of this AgreementContract.
(b) Each Company Parent Contract that constitutes a Company Parent Material Contract is valid and in full force and effect (except for Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period)effect, and is enforceable in accordance with its terms, subject to: (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”)remedies.
(c) Except as set forth in Part 2.10(c) of the Company Disclosure Schedule: (i) none None of the Tetraphase Companies Oclaro Corporations has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Parent Contract; (ii) to the knowledge Knowledge of the CompanyParent, no other Person has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Parent Contract; (iii) to the knowledge Knowledge of the CompanyParent, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) would could reasonably be expected to: (A) result in a violation or breach in any material respect of any Company Material of the provisions of any Parent Contract; (B) give any Person the right to declare a default in any material respect under any Company Material Parent Contract; (C) give any Person the right to receive or require a rebate, chargeback, penalty or change in delivery schedule under any Parent Contract; (D) give any Person the right to accelerate in any material respect the maturity or performance of any Company Parent Contract that constitutes a Parent Material Contract; (E) result in the disclosure, release or delivery of any Parent Source Code; or (DF) give any Person the right to cancel, terminate or modify in any material respect any Company Parent Contract that constitutes a Parent Material Contract; and (iv) between December 31since January 1, 2018 and the date of this Agreement2010, none of the Tetraphase Companies Oclaro Corporations has received any written notice (or, to the knowledge Knowledge of the CompanyParent, any other communication, whether written or otherwise) regarding any actual or possible material violation or breach of, or material default under, any Company Parent Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Opnext Inc), Merger Agreement (Oclaro, Inc.)
Contracts. (a) Part 2.10(aExcept for (x) this Agreement, (y) Contracts listed on Section 3.16 of the Company Disclosure Schedule identifiesLetter and (z) Contracts filed as exhibits to the Filed Company SEC Documents, as of the date of this Agreement, each Company Contract that constitutes a Company Material Contract and which remains in effect as none of the date hereof and under which Company or the Company Subsidiaries is a Tetraphase Company has remaining material rights party to or obligations. For purposes of this Agreement, each bound by any of the following Company Contracts shall be deemed to constitute (each such Contract, a “Company Material Contract”:):
(i) any Contract in effect and which has been filed (or is that would be required to be filed) filed by the Company as an exhibit to the Company’s Annual Report on Form 10-K pursuant to Item 601(b)(10601(b)(2), (4), (9) or (10) of Regulation S-K under the Exchange Securities Act of 1933, as amended (the “Securities Act, or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange Act”);
(ii) any Contract: (A) constituting a Contract containing covenants binding upon the Company Employee Agreement under which annual salary or other stated annual cash compensation exceeds $200,000; (B) pursuant to which the Company Subsidiaries that materially restrict the ability of the Company or any of the Tetraphase Companies is Company Subsidiaries (or may become obligated to make any severancethat, termination or similar payment to any Company Associate following the consummation of the Merger, would materially restrict the ability of the Surviving Company, Parent OP or any spouse, heir or Representative of any Company Associate; (Ctheir respective Affiliates) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest compete in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) abovebusiness or geographic area or with any Person;
(iii) any Contract with any labor union pursuant to which the Company or any collective bargaining agreement Company Subsidiary is subject to continuing indemnification or similar Contract for “earn-out” obligations (whether related to environmental matters or otherwise), in each case, that would reasonably be likely to result in payments by the benefit of Company or any Company Associate(s)Subsidiary in excess of $250,000;
(iv) each any material Contract pursuant to which partnership, limited liability company agreement, joint venture or other similar agreement entered into with any Intellectual Property Rights or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software)party;
(v) each material any Contract pursuant for the pending sale, option to which sell, right of first refusal, right of first offer or any Intellectual Property Rights other contractual right to sell, dispose of, or Intellectual Property incorporated into master lease, by merger, purchase or sale of assets or stock or otherwise, any real property, including any Company Product are licensed Property or any asset that, if purchased by the Company or any Tetraphase CompanyCompany Subsidiary, would be a Company Property;
(vi) any material Contract with concerning an interest rate cap, interest rate collar, interest rate swap, or currency hedging transaction to which the Company or any distributor and any material contract with any other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in the ordinary course of businessCompany Subsidiary is a party;
(vii) any material Contract that requires the Company or any Company Subsidiary to dispose of or acquire assets or properties (other than any purchase order entered into real property) that (together with all of the assets and properties subject to such requirement in the ordinary course such Contract) have a fair market value in excess of business) with sole source $500,000, or single source suppliers to involves any Tetraphase Company of products pending or servicescontemplated merger, other than confidentiality consolidation or nondisclosure agreements entered into in the ordinary course of businesssimilar business combination transaction;
(viii) any Contract that provides for: relating to indebtedness for borrowed money (Awhether incurred, assumed, guaranteed or secured by any asset) reimbursement of or under which the Company or any Company Associate forSubsidiary has, directly or indirectly, made any loan, capital contribution to, or advancement to other investment in, any Person (other than in the Company or any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (BSubsidiary) indemnification in excess of any Company Associate$1,000,000;
(ix) any Contract (A) that restricts the ability of the Tetraphase Companies to compete in any business or with any Person in any geographical area; (B) in which obligates the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions Subsidiary to make non-contingent aggregate annual expenditures (other than principal and/or interest payments or marketing or distribution rights relating the deposit of other reserves with respect to any product or product candidate; (Cdebt obligations) in which excess of $500,000 and is not cancelable within ninety (90) days without material penalty to the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidateSubsidiary; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;or
(x) any Contract incorporating that prohibits the pledging of the Company Capital Stock or providing any capital stock of any Company Subsidiary or prohibits the issuance of guarantees by any Company Subsidiary.
(b) As of the date hereof, each of the Company Material Contracts is valid, binding and enforceable on the Company or the Company Subsidiaries, as the case may be, and, to the Knowledge of the Company, each other party thereto and is in full force and effect, in each case subject to the Bankruptcy and Equity Exception, except for such failures to be valid, binding or enforceable or to be in full force and effect as would not be material to the Company and any Company Subsidiary. As of the date hereof, each of the Company and the Company Subsidiaries has complied in all material guarantyrespects with the terms and conditions of the Company Material Contracts and is not (with or without notice or lapse of time, warrantyor both) in breach or default thereunder, sharing of liabilities in each case except as would not, individually or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into in the ordinary course of business or that do not deviate in any material respect from the standard forms of Contracts previously Made Available by aggregate, reasonably be likely to have a Company Material Adverse Effect. Neither the Company to Parent;
(xi) nor any Contract providing for Company Subsidiary has received notice of any currency hedging;
(xii) violation or default under any Contract requiring that any of the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract that is a Government Contract;
(xv) any Company Material Contract, not covered by another clause of this Section 2.10(a)except for violations or defaults that would not, that: (A) involved the payment individually or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31aggregate, 2019; (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) any material Contract that has a term of more than one year and which may not reasonably be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company); and
(xvii) any Contract, the termination of which would expected to have a Company Material Adverse Effect. The Company has delivered or Made Available (including by filing with the SEC) made available to Parent an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as of the date of this Agreement.
(b) Each Company Contract that constitutes a Company Material Contract is valid and in full force and effect (except for Contracts that are expiredParent, terminated, and/or not renewed during the Pre-Closing Period), and is enforceable in accordance with its terms, subject to: (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”).
(c) Except as set forth in Part 2.10(c) of the Company Disclosure Schedule: (i) none of the Tetraphase Companies has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (ii) prior to the knowledge of the Company, no other Person has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (iii) to the knowledge of the Company, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) would reasonably be expected to: (A) result in a violation or breach in any material respect of any Company Material Contract; (B) give any Person the right to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date execution of this Agreement, none true and complete copies of all of the Tetraphase Companies has received any written notice (or, to the knowledge of the Company, any other communication) regarding any actual or possible material violation or breach of, or material default under, any Company Material ContractContracts.
Appears in 2 contracts
Sources: Merger Agreement (Independence Realty Trust, Inc.), Merger Agreement (Steadfast Apartment REIT, Inc.)
Contracts. (a) Part 2.10(aSection 3.9(a) of the Company Disclosure Schedule identifiesidentifies each Contract to which the Company is a party, or by which it is bound, that constitutes a Material Contract as of the date of this Agreement, each Company Contract that constitutes a Company Material Contract and which remains in effect as of the date hereof and under which a Tetraphase Company has remaining material rights or obligations. For purposes of this Agreement, each of the following to which the Company Contracts shall be deemed to constitute is a party or by which it is bound or its assets or properties are bound as of the date of this Agreement constitutes a “Company Material Contract”:
(i) any Contract constituting a Company Employee Agreement pursuant to which the Company is or may become obligated to (A) make any severance, termination, Tax gross-up or similar payment to any Company Associate or any spouse or heir of any Company Associate, (B) make any bonus, deferred compensation or similar payment (other than payments constituting base salary or commissions paid in the ordinary course of business consistent with past practice), (C) grant or accelerate the vesting of, or otherwise modify, any Company Option or other equity award other than accelerated vesting provided in Company Equity Plans;
(ii) any Contract that is a settlement, conciliation or similar agreement with or approved by any Governmental Body (A) pursuant to which the Company will be required after the date of this Agreement to pay any monetary obligations or (B) that contains material obligations or limitations on the Company’s conduct;
(iii) any Contract (A) that purports to materially limit the freedom or right of the Company or any Affiliate to engage in any line of business, to make use of any material Company IP or to compete with any other Person in any location or line of business, (B) containing any “most favored nations” terms and conditions (including with respect to pricing) granted by the Company, or (C) containing exclusivity obligations or restrictions or otherwise purporting to materially limit the freedom or right of the Company or any Affiliate to sell, distribute or manufacture any products or services or any technology or other assets to or for any other Person or any arrangement that grants any right of first refusal, first offer, first negotiation or similar preferential right;
(iv) any Contract that requires by its terms or is reasonably likely to require the payment or delivery of cash or other consideration by or to the Company in an amount having an expected value in excess of $250,000 in the fiscal year ending December 31, 2016 or in any fiscal year thereafter or in excess of $500,000 in the aggregate and which cannot be cancelled by the Company without penalty or further payment without more than sixty (60) days’ notice;
(v) any Contract relating to Indebtedness in excess of $50,000 (whether incurred, assumed, guaranteed or secured by any asset) of the Company;
(vi) any Contract with any Person constituting a material joint venture, partnership, collaboration, strategic alliance, research or development project or similar arrangement;
(vii) any Contract that by its express terms requires the Company, or any successor to, or acquirer of, the Company, to make any payment to another Person as a result of a change of control of the Company (a “Change of Control Payment”) or gives another Person a right to receive or elect to receive a Change of Control Payment;
(viii) any Contract that prohibits the declaration or payment of dividends or distributions in respect of the capital stock of the Company, the pledging of the capital stock or other equity interests of the Company or the issuance of any guaranty by the Company;
(ix) any In-bound License and any Out-bound License;
(x) any Contract pursuant to which the Company has continuing obligations or interests involving (A) ”milestone” or other similar contingent payments, including upon the achievement of regulatory or commercial milestones, or (B) payment of royalties or other amounts calculated based upon any revenues or income of the Company, in each case that cannot be terminated by the Company without penalty without more than sixty (60) days’ notice without material payment or penalty;
(xi) each acquisition or divestiture Contract that contains continuing representations, covenants, indemnities or other obligations (including “earn-out” or other contingent payment obligations);
(xii) any stockholders, investors rights, registration rights or similar agreement or arrangement;
(xiii) any Contract that relates to any swap, forward, futures, or other similar derivative transaction with a notional value in excess of $100,000;
(xiv) any Contract that provides for indemnification by the Company of any current or former officer, director or employee;
(xv) any Contract between the Company and any Governmental Body;
(xvi) any other Contract that is currently in effect and which has been filed (or is required to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Act, Securities Act or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange Securities Act;
(ii) any Contract: (A) constituting a Company Employee Agreement under which annual salary or other stated annual cash compensation exceeds $200,000; (B) pursuant to which any of the Tetraphase Companies is or may become obligated to make any severance, termination or similar payment to any Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) above;
(iii) any Contract with any labor union or any collective bargaining agreement or similar Contract for the benefit of any Company Associate(s);
(iv) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software);
(v) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Company;
(vi) any material Contract with any distributor and any material contract with any other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(vii) any material Contract (other than any purchase order entered into in the ordinary course of business) with sole source or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viii) any Contract that provides for: (A) reimbursement of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate;
(ix) any Contract (A) that restricts the ability of the Tetraphase Companies to compete in any business or with any Person in any geographical area; (B) in which the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;
(x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into in the ordinary course of business or that do not deviate in any material respect from the standard forms of Contracts previously Made Available by the Company to Parent;
(xi) any Contract providing for any currency hedging;
(xii) any Contract requiring that any of the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2019; (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company); and
(xvii) any ContractContract with a Related Party.
(b) As of the date of this Agreement, the termination of which would have a Company Material Adverse Effect. The Company has delivered or Made Available (including by filing with the SEC) made available to Parent or Parent’s Representatives an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as of the date of this Agreement.
(b) Each Company Contract that constitutes a Company Material Contract is valid and in full force and effect (except for Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period), and is enforceable in accordance with its terms, subject to: (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”).
(c) Except as set forth in Part 2.10(c) of Contract. Neither the Company Disclosure Schedule: (i) none of the Tetraphase Companies has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (ii) to the knowledge of the Company, no other Person has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (iii) to the knowledge of the Company, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) would reasonably be expected to: (A) result in a violation or breach in any material respect of any Company Material Contract; (B) give any Person the right to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received any written notice (ornor, to the knowledge of the Company, any the other communication) regarding any actual or possible party is in material violation or breach of, or material default under, any Material Contract and neither the Company nor, to the knowledge of the Company, the other party to a Material Contract has taken or failed to take any action that with or without notice, lapse of time or both would constitute a material breach of or material default under any Material Contract. Each Material Contract is, with respect to the Company and, to the knowledge of the Company, the other party, a valid and binding agreement in full force and effect, enforceable in accordance with its terms, except as such enforcement may be subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors’ rights, and by general equitable principles. Since January 1, 2014, the Company has not received any written notice regarding any material violation or breach or default under any Material Contract that has not since been cured.
Appears in 2 contracts
Sources: Merger Agreement (Allergan PLC), Agreement and Plan of Merger (Tobira Therapeutics, Inc.)
Contracts. (a) Part 2.10(a) of the Company Disclosure Schedule identifies, as of the date of this Agreement, identifies each Company Contract that constitutes a Company Material Contract and which remains in effect as of the date hereof and under which a Tetraphase Company has remaining material rights or obligationshereof. For purposes of this Agreement, each of the following Company Contracts shall be deemed to constitute a “Company Material Contract”:
(i) any Contract in effect and which has been filed (or is required to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Act, or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange Act;
(ii) any Contract: (A) constituting a Company Employee Agreement under which annual salary or other stated annual cash that provides aggregate compensation exceeds and benefits in excess of $200,000250,000; (B) pursuant to which any of the Tetraphase Companies Opnext Corporations is or may become obligated to make any severance, termination or similar payment to any Company Associate or any spouse, heir or Representative of any Company Associate, except for severance, termination or similar payments required by applicable Legal Requirements or in an amount less than $50,000; (C) pursuant to which any of the Tetraphase Companies Opnext Corporations is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses base salary or commissions paid in the ordinary course of business)) in excess of $50,000 to any Company Associate; or (D) pursuant to which any of the Tetraphase Companies Opnext Corporations is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant Opnext Corporations;
(ii) any Contract identified or required to agreements on forms described be identified in Section 2.10(a)(i) abovePart 2.9 of the Company Disclosure Schedule;
(iii) any Contract with any labor union or any collective bargaining agreement or similar Contract for the benefit of any Company Associate(s);
(iv) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software);
(v) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Company;
(vi) any material Contract with any distributor and any material contract with any other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viiiv) any material Contract (other than any purchase order entered into in the ordinary course of business) with sole sole-source or single single-source suppliers to any Tetraphase Company Opnext Corporation of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of businessservices that are material to any Opnext Corporation;
(viiiv) any Contract with Hitachi, Ltd. or any of its Affiliates;
(vi) any Contract that provides for: (A) reimbursement of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate;
(ixvii) any Contract imposing any restriction on the right or ability of any Opnext Corporation: (A) that restricts the ability of the Tetraphase Companies to compete in any business or with any Person in any geographical areaother Person; (B) in which the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to acquire any product or product candidateother asset or any services from any other Person; (C) in which the Company to solicit, hire or retain any Tetraphase Company has agreed Person as a director, an officer or other employee, a consultant or an independent contractor; (D) to purchase a minimum quantity of goods relating to develop, sell, supply, distribute, offer, support or service any product or product candidateany technology or other asset to or for any other Person; (E) to perform services for any other Person; or (DF) which provides for “exclusivity” or to transact business with any similar requirement in favor of any third partyother Person, in each case which restriction would or would reasonably be expected to materially and adversely affect affect: (x) the conduct of the business of the Tetraphase Companies, taken as a whole, Opnext Corporations as currently conducted or as currently proposed by the Opnext Corporations to be conducted; or (y) the design, development, manufacturing, reproduction, marketing, licensing, sale, offer for sale, importation, distribution, performance, display, creation of derivative works by any Opnext Corporation with respect to and/or use of any Company Product;
(xviii) any Contract relating to any currency hedging;
(ix) any Contract incorporating or providing for relating to any material guaranty, any warranty, any sharing of liabilities or any indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into in the ordinary course of business or that do not deviate in any material respect from the standard forms of Contracts previously delivered or Made Available by the Company to Parent;
(xi) any Contract providing for any currency hedging;
(xiix) any Contract requiring that any of the Tetraphase Companies Opnext Corporations give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiiixi) any Contract providing for relating to the lease or sublease of Tetraphase Opnext Leased Real Property;
(xivxii) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 1,500,000 in the fiscal year ending December ended March 31, 20192011; (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 1,500,000 in the fiscal year ending December March 31, 20202012; (C) involved the performance of services having a value in excess of $200,000 750,000 in the fiscal year ended December March 31, 20192011; or (D) requires by its terms the performance of services having a value in excess of $200,000 750,000 in the fiscal year ending December March 31, 20202012;
(xvixiii) any material Contract requiring that has a term of any Opnext Corporation: (A) give more than one year 180 days’ notice prior to discontinuing any Company Product; (B) continue to deliver any Company Product and/or spare parts for any Company Product more than 180 days following any notice of discontinuance of such Company Product or spare part; (C) continue to deliver any Company Product and/or spare parts for any Company Product more than five years following the termination or expiration of the Contract; and which may not be terminated by a Tetraphase Company (without penalty in excess D) continue to deliver warranty service or out-of-warranty service more than three years following the termination or expiration of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company)Contract; and
(xviixiv) any Contract, the termination of which would reasonably be expected to have a Company Material Adverse Effect. The Except to the extent filed (in unredacted form) as an exhibit to a Company SEC Document prior to the date of this Agreement, the Company has delivered or Made Available (including by filing with the SEC) to Parent an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as of the date of this AgreementContract.
(b) Each Company Contract that constitutes a Company Material Contract is valid and in full force and effect (except for Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period)effect, and is enforceable in accordance with its terms, subject to: (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”)remedies.
(c) Except as set forth in Part 2.10(c) of the Company Disclosure Schedule: (i) none None of the Tetraphase Companies Opnext Corporations has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (ii) to the knowledge Knowledge of the Company, no other Person has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (iii) to the knowledge Knowledge of the Company, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) would could reasonably be expected to: (A) result in a violation or breach in any material respect of any of the provisions of any Company Material Contract; (B) give any Person the right to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to receive or require a rebate, chargeback, penalty or change in delivery schedule under any Company Contract; (D) give any Person the right to accelerate in any material respect the maturity or performance of any Company Contract that constitutes a Company Material Contract; (E) result in the disclosure, release or delivery of any Company Source Code; or (DF) give any Person the right to cancel, terminate or modify in any material respect any Company Contract that constitutes a Company Material Contract; and (iv) between December 31since January 1, 2018 and the date of this Agreement2010, none of the Tetraphase Companies Opnext Corporations has received any written notice (or, to the knowledge Knowledge of the Company, any other communication, whether written or otherwise) regarding any actual or possible material violation or breach of, or material default under, any Company Material Contract.
(d) Except as set forth in Part 2.10(d) of the Company Disclosure Schedule or contemplated by the Contracts listed in Part 2.10(a)(v) of the Company Disclosure Schedule, from January 1, 2010 through December 31, 2010 and from January 1, 2011 through December 31, 2011, no Opnext Corporation has entered into any transaction with, made any payments to or provided any products or services to (or received any payment, products or services from) Hitachi, Ltd. or any of its Affiliates.
Appears in 2 contracts
Sources: Merger Agreement (Opnext Inc), Merger Agreement (Oclaro, Inc.)
Contracts. (a) Part 2.10(aExcept as filed as exhibits to the Company SEC Documents filed prior to the date hereof, Section 4.14(a) of the Company Disclosure Schedule identifiesLetter sets forth a list or description of each note, bond, mortgage, indenture, lease, license, contract or agreement, or other instrument or obligation (each, a “Contract”) to which the Company or any of its Subsidiaries is a party or by which any of their respective properties or assets are bound (the “Company Agreements”) which, as of the date of this Agreement, each Company Contract that constitutes a Company Material Contract and which remains in effect as of the date hereof and under which a Tetraphase Company has remaining material rights or obligations. For purposes of this Agreement, each of the following Company Contracts shall be deemed to constitute a “Company Material Contract”:
(i) any Contract in effect and which has been filed (or is required to be filed) by the Company filed as an exhibit to the Company’s Annual Report on Form 10-K pursuant to Item 601(b)(10) of Regulation S-K under promulgated by the Exchange Act, or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange ActSEC;
(ii) obligates the Company or any Contract: of its Subsidiaries to make non-contingent aggregate annual expenditures (other than principal and/or interest payments or the deposit of other reserves with respect to debt obligations) in excess of Five Million U.S. Dollars ($5,000,000) and is not cancelable within ninety (90) days without material penalty to the Company or any of its Subsidiaries, except for any (A) constituting a Company Employee Agreement under which annual salary Lease or other stated annual cash compensation exceeds $200,000; any ground lease affecting any Company Property or (B) tenant reimbursements made pursuant to which any of the Tetraphase Companies is or may become obligated to make any severance, termination or similar payment to any applicable underlying Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) aboveLease;
(iii) contains any Contract non-customary, material non-compete or exclusivity provisions with respect to any labor union line of business or geographic area with respect to the Company or any collective bargaining agreement of its Subsidiaries, or similar Contract for upon consummation of the benefit Transactions, Parent or its Subsidiaries, or which restricts the conduct of any line of business that is material to the Company Associate(s)and its Subsidiaries, except for any Company Lease or any ground lease affecting any Company Property;
(iv) each material Contract pursuant to which constitutes Indebtedness (including any Intellectual Property Rights guarantee thereof) in an amount in excess of Ten Million U.S. Dollars ($10,000,000) or Intellectual Property that has been incorporated into any letters of credit or similar instruments issued for the account of the Company or any Company Product and is licensed to Subsidiary or mortgaging, pledging or otherwise placing a Lien securing obligations in excess of Ten Million U.S. Dollars $10,000,000 on any Tetraphase portion of the assets of the Company (or any Company Subsidiary, other than non-exclusive licenses to unmodified commercially available third party software)any such agreement, indenture, letter of credit or instrument solely between or solely among the Company and wholly owned Company Subsidiaries;
(v) each material Contract pursuant requires the Company or any of its Subsidiaries to which dispose of or acquire assets or properties (other than in connection with the expiration of a Company Lease or a ground lease affecting a Company Property or as may accrue in connection with a breach of any Intellectual Property Rights Contract) with a fair market value in excess of Five Million U.S. Dollars ($5,000,000), or Intellectual Property incorporated into provides for any pending or contemplated merger, consolidation or similar business combination transaction involving the Company or any of its Subsidiaries, except for any Company Product are licensed by Lease or any Tetraphase Companyground lease affecting any Company Property;
(vi) any material Contract with any distributor and any material constitutes an interest rate cap, interest rate collar, interest rate swap or other contract with any other reseller or sales representative, in each case that provides exclusivity rights agreement relating to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in the ordinary course of businessa hedging transaction;
(vii) any material Contract (other than any purchase order entered into in the ordinary course of business) relates to a joint venture, partnership, limited liability company or similar arrangement, with sole source or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of businessa third party;
(viii) any Contract that provides for: (A) reimbursement of any Company Associate for, or advancement constitutes a loan to any Person (other than a wholly owned Company Associate of, legal fees Subsidiary) by the Company or other expenses associated with any Legal Proceeding or the defense thereof; or of its Subsidiaries in an amount in excess of Ten Million U.S. Dollars (B) indemnification of any Company Associate$10,000,000);
(ix) any Contract (A) that restricts relates to the ability of the Tetraphase Companies to compete ongoing or scheduled development, construction or capital expenditures, in any business or with any Person in any geographical area; (B) in which each case requiring aggregate payments by the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidate; of its Subsidiaries in excess of Ten Million U.S. Dollars (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted$10,000,000);
(x) prohibits the payment of dividends or distributions in respect of Company Common Shares or shares of any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into in the ordinary course of business or that do not deviate in any material respect from the standard forms of Contracts previously Made Available by the Company to ParentSubsidiary;
(xi) grants to any Contract providing for Person a right of first refusal, a right of first offer or an option to purchase, acquire, sell or dispose of any currency hedgingCompany Property that, individually or in the aggregate, is material to the Company;
(xii) pursuant to which the Company is lessee of any Contract requiring that personal property or real property owned by any of other party, for which the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;annual rental exceeds One Million U.S. Dollars ($1,000,000); or
(xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract that is a Government Contract;
(xv) license in respect of any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved Licensed Company IP or otherwise grants the payment or delivery of cash or other consideration in an amount or having a value Company any Intellectual Property Rights that requires annual payments in excess of One Million U.S. Dollars ($200,000 1,000,000).
(b) Each Contract of the type described above in Section 4.14(a) and in effect on the date of this Agreement, whether or not set forth in Section 4.14(a) of the Company Disclosure Letter, is referred to herein as a “Company Material Contract.” As of the date hereof, except as, individually or in the fiscal year ending December 31aggregate, 2019; (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) any material Contract that has a term of more than one year not had and which may would not reasonably be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company); and
(xvii) any Contract, the termination of which would expected to have a Company Material Adverse Effect. The Company has delivered or Made Available , (including by filing with the SECi) to Parent an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as of the date of this Agreement.
(b) Each Company Contract that constitutes a Company Material Contract is legal, valid and binding on the Company and each Company Subsidiary that is a party thereto, and is in full force and effect (effect, except for Contracts that are expiredas may be limited by the Enforceability Exceptions, terminated, and/or not renewed during the Pre-Closing Period), and is enforceable in accordance with its terms, subject to: (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”).
(c) Except as set forth in Part 2.10(c) of neither the Company Disclosure Schedule: (i) none nor any of the Tetraphase Companies has violated or breached in any material respectits Subsidiaries, or committed any default in any material respect under, any Company Material Contract; (ii) to the knowledge of the Company, no other Person has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (iii) to the knowledge of the Company, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) would reasonably be expected to: (A) result in a violation or breach in any material respect of any Company Material Contract; (B) give any Person the right to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received any written notice (ornor, to the knowledge of the Company’s knowledge, any other communication) regarding any actual party thereto, is in material breach or possible material violation or breach of, or material default under, any Company Material Contract, and (iii) to the Company’s knowledge, no event has occurred that with notice or lapse of time or both would constitute a material violation, breach or default under any Company Material Contract. Neither the Company nor any of its Subsidiaries has received notice of any material breach, violation or default under any Company Material Contract, except for breaches, violations or defaults that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.
(c) The Company has delivered or made available to Parent or provided to Parent for review, prior to the execution of this Agreement, true and complete copies in all material respects of all of the Company Material Contracts.
Appears in 2 contracts
Sources: Merger Agreement (Chambers Street Properties), Merger Agreement (Gramercy Property Trust Inc.)
Contracts. (a) Part 2.10(aExcept as listed in Section 4.1(v) of the Company Receiver Disclosure Schedule identifiesLetter or as filed as exhibits to the Receiver SEC Documents, as of the date hereof, neither Receiver nor any Subsidiary of this Agreement, each Company Contract that constitutes Receiver is a Company Material Contract and which remains in effect as of the date hereof and under which a Tetraphase Company has remaining material rights party to or obligations. For purposes of this Agreement, each bound by any of the following Company Contracts shall be deemed to constitute which is currently in effect with ongoing obligations of Receiver or such Subsidiary of Receiver (each such contract or agreement referenced in subparts (i) through (x) below or Section 4.1(s)(ii), a “Company Material Receiver Contract”:):
(i) any Contract agreement relating to direct or indirect Indebtedness of Receiver or any Subsidiary of Receiver in effect excess of $1,000,000, other than agreements among direct or indirect wholly-owned Receiver Subsidiaries and which has been filed (or is required to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Act, or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange Actordinary course trade payables and accrued expenses;
(ii) any Contract: (A) constituting a Company Employee Agreement under which annual salary joint venture, partnership, limited liability company or other stated annual cash compensation exceeds $200,000; (B) pursuant similar agreements or arrangements relating to which any of the Tetraphase Companies is formation, creation, operation, management or may become obligated to make any severance, termination or similar payment to any Company Associate or any spouse, heir or Representative control of any Company Associate; (C) pursuant partnership or joint venture material to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting ofReceiver and its Subsidiaries, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) abovetaken as a whole;
(iii) any Contract with any labor union or any collective bargaining agreement or similar Contract for series of related agreements, including any option agreement, relating to the benefit acquisition or disposition of any Company Associate(sBusiness or material real property (whether by merger, sale of stock, sale of assets or otherwise);
(iv) each material Contract pursuant any agreement entered into with (A) any Person directly or indirectly owning, controlling or holding the power to which vote, 5% or more of the outstanding voting securities of Receiver, (B) any Intellectual Property Rights or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company Person (other than non-exclusive licenses a Subsidiary of Receiver) 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to unmodified commercially available third party software)vote by Receiver or any Subsidiary of Receiver or (C) any current director or executive officer of Receiver or any “associates” or members of the “immediate family” (as such terms are respectively defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) of any such director or executive officer;
(v) each any agreement (including any exclusivity agreement) that purports to limit or restrict in any material Contract pursuant to respect either the type of business in which Receiver or its Subsidiaries may engage or the manner or locations in which any Intellectual Property Rights of them may so engage in any business (including any covenant not to compete) or Intellectual Property incorporated into which would require the disposition of any Company Product are licensed by any Tetraphase Companymaterial assets or line of business of Receiver or its Subsidiaries;
(vi) any material Contract sales, distribution, agency, commission-based or other similar agreement with third parties (x) providing for the sale by Receiver or any distributor and Subsidiary of Receiver of such Person’s products or services, or (y) providing for the sale by third parties of products of Receiver or any material contract with any other reseller or sales representativeSubsidiary of Receiver, in each case that provides exclusivity rights to such distributorcase, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into involving annual payments in the ordinary course 2007 fiscal year or reasonably expected in the 2008 fiscal year to or by Receiver or any Subsidiary of businessReceiver in excess of $1,000,000 in the aggregate;
(vii) any material Contract (other than agreement with any purchase order entered into in the ordinary course of business) with sole source U.S. federal or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of businessnon-U.S. Governmental Entity;
(viii) any Contract that agreement that, to the Knowledge of Receiver, provides for: for continuing material indemnification obligations of Receiver or any of its Subsidiaries (Aother than indemnification obligations contained in (x) reimbursement of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; customer contracts or (By) indemnification contracts listed or referred to in Section 4.1(v) of any Company Associatethe Receiver Disclosure Letter);
(ix) any Contract (A) that restricts the ability of the Tetraphase Companies to compete in any business “take-or-pay” agreements or agreements with any Person in any geographical area“most-favored nations” terms; (B) in which the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;or
(x) any agreement otherwise required to be filed as an exhibit to an Annual Report on Form 10-K, as provided by Item 601 of Regulation S-K promulgated under the Exchange Act. Each Receiver Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into in the ordinary course of business or that do not deviate in any material respect from the standard forms of Contracts previously Made Available by the Company to Parent;
(xi) any Contract providing for any currency hedging;
(xii) any Contract requiring that any of the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract that is a Government Contract;
(xv) any Contractvalid and binding agreement of Receiver or the Subsidiary of Receiver party thereto, not covered by another clause as the case may be, and is in full force and effect, enforceable against Receiver or the Subsidiary of this Section 2.10(a)Receiver, that: (A) involved as applicable, and, to the payment or delivery Knowledge of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2019; (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company); and
(xvii) any ContractReceiver, the termination of which would have a Company Material Adverse Effect. The Company has delivered or Made Available (including by filing counterparty thereto in accordance with its terms, except to the SEC) extent that the failure to Parent an accurate be valid and complete copy of each Company Contract that constitutes a Company Material Contract as of the date of this Agreement.
(b) Each Company Contract that constitutes a Company Material Contract is valid binding and in full force and effect (except for Contracts that are expiredand enforceable, terminatedindividually or in the aggregate, and/or would not renewed during reasonably be expected to have a Material Adverse Effect on Receiver and its Subsidiaries taken as a whole. None of Receiver or any Subsidiary of Receiver party thereto or, to the Pre-Closing Period)Knowledge of Receiver, and any other party thereto is enforceable in accordance with its terms, subject to: (i) laws of general application relating to bankruptcy, insolvency and default or breach under the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”).
(c) Except as set forth in Part 2.10(c) of the Company Disclosure Schedule: (i) none of the Tetraphase Companies has violated or breached in any material respectterms of, or committed has provided any default in written notice of any material respect underintention to terminate, any Company Material such Receiver Contract; (ii) , and, to the knowledge Knowledge of the Company, no other Person has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (iii) to the knowledge of the CompanyReceiver, no event or circumstance has occurred, and no circumstance or condition existswill occur by reason of this Agreement or the consummation of any of the transactions contemplated hereby, that (that, with or without notice or lapse of time) time or both, would constitute an event of default thereunder or would give rise to a right of termination, acceleration or material amendment thereof, except to the extent that the such default, breach, termination, event or circumstance would not, individually or in the aggregate, reasonably be expected to: to have a Material Adverse Effect on Receiver. True, correct and complete copies of (Ai) result in a violation or breach in any each Receiver Contract (including all material respect of any Company Material Contract; (Bmodifications and amendments thereto) give any Person the right to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (ivii) between December 31all form contracts, 2018 agreements or instruments used in and material to Receiver and the date of this AgreementReceiver Subsidiaries, none of the Tetraphase Companies has received any written notice (ortaken as a whole, have been made available to the knowledge of the Company, any other communication) regarding any actual Parent or possible material violation or breach of, or material default under, any Company Material ContractSafety.
Appears in 2 contracts
Sources: Merger Agreement (Allscripts Healthcare Solutions Inc), Merger Agreement (Misys PLC)
Contracts. (a) Part 2.10(a) of Neither the Company Disclosure Schedule identifies, as nor any of the date of this Agreement, each Company Contract that constitutes a Company Material Contract and which remains in effect as of the date hereof and under which a Tetraphase Company has remaining material rights or obligations. For purposes of this Agreement, each of the following Company Contracts shall be deemed its Subsidiaries is party to constitute a “Company Material Contract”:
(i) any Contract in effect and which has been filed (or is required to be filed) filed by the Company as an exhibit a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Exchange ActSecurities Act as of the date of this Agreement that has not been so filed (a “Filed Company Contract”). Section 3.01(i) of the Company Letter sets forth (with specific reference to the subsection of this Section 3.01(i) to which such Contract relates, including any further subsection) a list as of the date of this Agreement of:
(i) each Contract pursuant to which the Company or any of its Subsidiaries has agreed not to compete with any person in any geographic area or in any activity or business that (A) is material to the operation of the Company and its Subsidiaries, taken as a whole, or that (B) after the Effective Time would be required to be disclosed under Item 404 restrict Parent or any of Regulation S-K under its Subsidiaries (other than the Exchange ActSurviving Corporation and its Subsidiaries) in any material respect;
(ii) each Contract to or by which the Company or any Contract: of its Subsidiaries is a party or bound providing for exclusivity (A) constituting a Company Employee Agreement under which annual salary or other stated annual cash compensation exceeds $200,000; (B) pursuant to which the Company or any of its Subsidiaries is restricted in any respect, which restrictions are material to the Tetraphase Companies is operation of the Company and its Subsidiaries, taken as a whole, or may become obligated to make any severance, termination or similar payment to any Company Associate (B) which after the Effective Time would restrict Parent or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment its Subsidiaries (other than payments constituting bonuses or commissions paid the Surviving Corporation and its Subsidiaries) in the ordinary course of business); or (D) pursuant to which any respect, in each of the Tetraphase Companies is above clauses (A) and (B), with respect to the development, manufacture, marketing or may become obligated to grant distribution of their respective products or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) aboveservices;
(iii) any each Contract with any labor union under which the Company or any collective bargaining agreement or similar Contract for the benefit of its Subsidiaries has incurred any Company Associate(s)indebtedness having an aggregate principal amount in excess of $10,000,000;
(iv) each Contract which has aggregate future sums due to or from the Company or any of its Subsidiaries of more than $10,000,000 during the life of the Contract and to or by which the Company or any of its Subsidiaries is a party or bound creating or granting a Lien (including Liens upon properties or assets acquired under conditional sales, capital leases or other title retention or security devices), other than (1) Liens for Taxes, assessments and other governmental charges not yet due and payable that are payable without penalty or that are being contested in good faith and, in each case, for which adequate reserves have been established, (2) Liens for landlords’, carriers’, warehousemen’s, mechanics’, repairmen’s, workers’ or similar Liens incurred in the ordinary course of business consistent with past practice, in each case for sums not yet due and payable or due but not delinquent or being contested in good faith by appropriate proceedings, (3) Liens incurred in the ordinary course of business consistent with past practice in connection with workers’ compensation, unemployment insurance and other types of social security or to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, government contracts, performance and return of money bonds and similar obligations and (4) Liens incurred in the ordinary course of business consistent with past practice that are not reasonably likely to adversely interfere in a material respect with the use of the properties or assets encumbered thereby (collectively, “Permitted Liens”);
(v) each Contract pursuant which has aggregate future sums due to or from the Company or any of its Subsidiaries of more than $25,000,000 per annum or $100,000,000 over the life of the Contract and to or by which the Company or any of its Subsidiaries is a party or bound (other than Benefit Plans) containing any provisions contemplating or relating in any way to a “change in control” or similar event with respect to the Company or one or more of its Subsidiaries, including provisions requiring Consent of, or notice to, any Governmental Entity or other person in the event of a change in control of the Company or one or more of its Subsidiaries, or otherwise having the effect of providing that the consummation of the Merger or any of the other transactions contemplated by this Agreement or the execution, delivery or effectiveness of this Agreement will materially conflict with, result in a material violation or material breach of, or constitute a default (with or without notice or lapse of time or both) under, such Contract, or give rise under such Contract to any right of, or result in, termination, right of first refusal or first offer, material amendment, revocation, cancelation or acceleration of any material obligation, or loss of a material benefit or the creation of any material Lien upon any of the properties or assets of the Company, Parent or any of their respective Subsidiaries, or to any increased, guaranteed, accelerated or additional material rights or material entitlements of any person;
(vi) each Contract to or by which the Company or any of its Subsidiaries is a party or bound granting the other party to such Contract or a third party “most favored nation” pricing or terms and contemplates aggregate payments to the Company or any of its Subsidiaries in excess of $15,000,000 per annum and that (1) applies to the Company or any of its Subsidiaries or (2) following the Effective Time, would apply to Parent or any of its Subsidiaries other than the Surviving Corporation or its Subsidiaries;
(vii) each Contract to or by which the Company or any of its Subsidiaries is a party or bound forming or establishing, or relating to the formation or establishment or operation of, any joint venture (whether in partnership, limited liability company or other legal entity), in each case, that is material to the operation of the Company and its Subsidiaries, taken as a whole;
(viii) each Contract to or by which the Company or any of its Subsidiaries is a party or bound entered into in connection with the settlement or other resolution of any Proceeding involving the future performance of material obligations by the Company or any of its Subsidiaries;
(ix) each Contract to or by which the Company or any of its Subsidiaries is a party or bound containing any standstill provisions which in any material respect limit (1) the ability of any person to acquire the securities or assets of the Company or any of its Subsidiaries or (2) the ability of the Company or any of its Subsidiaries to acquire the securities or assets of any person;
(x) each Contract to or by which the Company or any of its Subsidiaries is a party or bound that contains any continuing indemnification, “earn-out” or other similar contingent payment obligations (other than milestone payments and warranty obligations, in each case, under commercial Contracts entered into the ordinary course of business consistent with past practice), or credit support relating to such obligations, which would reasonably be expected to result in payments in excess of $10,000,000;
(xi) each Contract (1) under which the Company or any of its Subsidiaries licenses or sublicenses material Intellectual Property Rights from or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company third party (other than non-exclusive licenses to unmodified customers and off-the-shelf, commercially available third party software);and/or “shrink-wrap” agreements) outside of the ordinary course of business consistent with past practice or (2) that restricts in any material respect the right of the Company or any of its Subsidiaries to use, deploy or register any material Intellectual Property; and
(vxii) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property incorporated into any the Company Product are licensed by any Tetraphase Company;
(vi) any material Contract with any distributor and any material contract with any other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(vii) any material Contract (other than any purchase order entered into in the ordinary course of business) with sole source or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viii) any Contract that provides for: (A) reimbursement guarantees performance obligations of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or person either (B) indemnification of any Company Associate;
(ix) any Contract (A) that restricts the ability of the Tetraphase Companies to compete in any business or with any Person in any geographical area; (B) in which the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D1) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;
(x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into result in the ordinary course of business or that do not deviate in any material respect from the standard forms of Contracts previously Made Available payments by the Company to Parent;
(xi) any Contract providing for any currency hedging;
(xii) any Contract requiring that any of the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 10,000,000 or (2) with a remaining term of longer than two years from the date of this Agreement (other than (A) Contracts that are terminable at will or upon advance notice, in each case, by the fiscal year ending December 31Company or its Subsidiaries, 2019; prior to the expiration of the remaining term and (B) requires by off-the shelf, commercially available and/or “shrink-wrap” agreements or that contain similar immaterial obligations). The Contracts of the Company or any of its terms Subsidiaries of the payment type referred to in clauses (i) through (xii) of this Section 3.01(i) (whether in effect on the date of this Agreement or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Companyfollowing the date of this Agreement and prior to the Closing Date); and
(xvii) any Contract, together with the termination of which would have a Filed Company Material Adverse EffectContracts and the Significant Program Contracts, are collectively referred to in this Agreement as “Specified Contracts”. The Company has delivered or Made Available (including by filing with the SEC) made available to Parent an accurate a true and complete copy of of, and all material substantive written modifications and amendments currently in effect to, (x) each Company Contract that constitutes a Company Material Contract as of the date Specified Contracts other than the Significant Program Contracts and (y) a representative Contract for each of this Agreement.
the programs listed on Section 3.01(i)(y) of the Company Letter (b) all Contracts for such programs, the “Significant Program Contracts”). Each Company Contract that constitutes a Company Material Specified Contract is valid and in full force and effect (except for those Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period), have expired in accordance with their terms) and is a legal, valid and binding agreement of the Company or such Subsidiary, as the case may be, and, to the knowledge of the Company, of each other party thereto, enforceable against the Company or such Subsidiary, as the case may be, and, to the knowledge of the Company, against the other party or parties thereto, in each case, in accordance with its terms, subject to: (i) laws to the effect of general application relating to any applicable bankruptcy, insolvency (including all Laws related to fraudulent transfers), reorganization, moratorium or similar Laws affecting creditors’ rights generally and subject to the relief effect of debtors; and (ii) rules general principles of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”).
(c) Except as set forth in Part 2.10(c) equity. Each of the Company Disclosure Schedule: and its Subsidiaries has performed or is performing all material obligations required to be performed by it under the Specified Contracts and is not (iwith or without notice or lapse of time or both) none of the Tetraphase Companies has violated or breached in any material respect, or committed any default breach in any material respect underor default thereunder, and has not waived (other than any Company Material Contract; (iiimplied waiver) or failed to enforce any material rights or benefits thereunder and, to the knowledge of the Company, no other Person has violated party to any of the Specified Contracts is (with or breached without notice or lapse of time or both) in any material respect, or committed any default breach in any material respect under, any Company Material Contract; (iii) to or default thereunder. To the knowledge of the Company, there has occurred no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of timetime or both) would reasonably be expected to: (A) result in a violation give to others any right of termination, material amendment or breach in any material respect cancelation of any Company Material Contract; (B) give any Person the right to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received any written notice (or, to the knowledge of the Company, any other communication) regarding any actual or possible material violation or breach of, or material default under, any Company Material Specified Contract.
Appears in 2 contracts
Sources: Merger Agreement (Northrop Grumman Corp /De/), Merger Agreement (Orbital Atk, Inc.)
Contracts. (a) Part 2.10(a) of Other than this Agreement, the Company Disclosure Schedule identifiesBank Spin-Off Agreements (when entered into pursuant to Section 5.04), as of and any Contract entered into after the date of this Agreement, each Agreement and prior to the Closing Date ( when permitted under Section 5.01(a)) neither the Company Contract that constitutes nor any Company Subsidiary is a Company Material Contract and which remains in effect as of the date hereof and under which a Tetraphase Company has remaining material rights party to or obligations. For purposes of this Agreement, each of the following Company Contracts shall be deemed to constitute a “Company Material Contract”bound by:
(i) any Contract in effect and which has been filed (or is required to be filed) filed by the Company as an exhibit a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Act, or Securities Act that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange Acthas not been so filed;
(ii) any Contract: Contract imposing any material restriction on the right of the Company or any Company Subsidiary (other than the Bank Subsidiaries) to (A) constituting a Company Employee Agreement under which annual salary or compete with any other stated annual cash compensation exceeds $200,000; Person, (B) pursuant to which any acquire or dispose of the Tetraphase Companies is or may become obligated to make any severance, termination or similar payment to any Company Associate or any spouse, heir or Representative securities of any Company Associate; other Person or (C) pursuant to which any of the Tetraphase Companies is engage or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest compete in any line of the Tetraphase Companies other than pursuant business or in any geographic area or that contains restrictions on pricing or exclusivity or non-solicitation provisions with respect to agreements on forms described in Section 2.10(a)(i) above;customers; or
(iii) any Contract with any labor union or any collective bargaining agreement or similar Contract for the benefit of any Company Associate(s);
(iv) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software);
(v) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Company;
(vi) any material Contract with any distributor and any material contract with any other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(vii) any material Contract (other than any purchase order entered into in the ordinary course of business) with sole source or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viii) any Contract that provides for: (A) reimbursement of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate;
(ix) any Contract (A) that restricts the ability of the Tetraphase Companies to compete in any business or with any Person in any geographical area; (B) in which the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;
(x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into in the ordinary course of business or that do not deviate in any material respect from the standard forms that, by their terms, (x) have a term of Contracts previously Made Available less than one year, (y) are fully terminable by the Company to Parent;
or such Company Subsidiary without any material fee, penalty or liability payable in connection therewith and (xiz) do not involve potential payments or obligations by any Contract providing for any currency hedging;
(xii) any Contract requiring that any of the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration in an amount or having a value party in excess of $200,000 in the fiscal year ending December 3150,000,000, 2019; (A) any material coal, diesel, natural gas, liquefied natural gas, liquefaction, transportation, power sale, power purchase or offtake agreement or other fuel purchase, sale or transportation agreement, (B) requires any agreement that contains material “take or pay,” “liquidated damages,” “termination, closeout or liquidation” or other similar provisions or (C) any contract that does not by its terms fully expire, or is not by its terms fully terminable by the payment Company or delivery of cash such Company Subsidiary without any material fee, penalty or other consideration liability payable in an amount connection therewith, not later than two (2) years after the date hereof, and that involves potential payments or having a value obligations by any party in excess of $200,000 50,000,000. All Contracts of the type referred to in clauses (i) (whether or not such Contracts have been filed by the Company or any Company Subsidiary with the SEC), (ii) or (iii) of this Section 3.15(a) are referred to herein as “Company Material Contracts.”
(b) Except for matters which, individually or in the fiscal year ending December 31aggregate, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) any material Contract that has a term of more than one year have not had and which may would not reasonably be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company); and
(xvii) any Contract, the termination of which would expected to have a Company Material Adverse Effect. The Company has delivered or Made Available , (including by filing with the SECi) to Parent an accurate and complete copy of each Company Material Contract (including, for purposes of this Section 3.15(b), any Contract entered into after the date of this Agreement that constitutes would have been a Company Material Contract as of if such Contract existed on the date of this Agreement.
) is a valid, binding and legally enforceable obligation of the Company or one of the Company Subsidiaries, as the case may be, and, to the Knowledge of the Company, of the other parties thereto, except, in each case, as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Laws affecting creditors’ rights generally and by general principles of equity, (bii) Each Company Contract that constitutes a each such Company Material Contract is valid and in full force and effect (except for Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period), and is enforceable in accordance with its terms, subject to: (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”).
(c) Except as set forth in Part 2.10(c) of the Company Disclosure Schedule: (iiii) none of the Tetraphase Companies has violated Company or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (ii) to the knowledge of the Company, no other Person has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (iii) to the knowledge of the Company, no event has occurred, and no circumstance or condition exists, that Subsidiaries is (with or without notice or lapse of time, or both) would reasonably be expected to: (A) result in a violation breach or breach in default under any material respect of any such Company Material Contract; (B) give any Person the right to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received any written notice (orContract and, to the knowledge Knowledge of the Company, no other party to any other communication) regarding any actual such Company Material Contract is (with or possible material violation without notice or breach oflapse of time, or material both) in breach or default under, any Company Material Contractthereunder.
Appears in 2 contracts
Sources: Merger Agreement (Hawaiian Electric Co Inc), Merger Agreement (Nextera Energy Inc)
Contracts. amend or otherwise modify (aor agree to do so), or violate the terms of, any of the Contracts set forth or described in the respective Disclosure Schedule; Capital Stock: declare, set aside, or pay any dividends on or make any other distributions (whether in cash, stock or property) Part 2.10(ain respect of any Capital Stock, or split, combine or reclassify any Capital Stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of Capital Stock, or repurchase, redeem or otherwise acquire, directly or indirectly, any shares of Capital Stock (or options, warrants or other rights exercisable therefor); Issuances of Capital Stock: issue, grant, deliver or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any shares of Capital Stock or any securities convertible into, or subscriptions, rights, warrants or Options to acquire, or other agreements or commitments of any character obligating it to issue or purchase any such shares or other convertible securities, except for issuances of Company Common Stock pursuant to exercises of Company Options or Company Warrants disclosed in Section 2.3(c) of the Company Disclosure Schedule identifies, as and the conversion of the date of this Agreement, each Company Contract that constitutes a Company Material Contract and which remains Preferred Stock disclosed in effect as Section 2.3(a) of the date hereof and under which a Tetraphase Company has remaining material rights Disclosure Schedule; Amendments to Articles: cause or obligations. For purposes permit any amendments to such party's articles of this Agreementincorporation or bylaws; Dispositions: sell, each lease, license or otherwise dispose of or encumber any Assets or Property, except for Assets or Property that are not Company Intellectual Property in the following Company Contracts shall be deemed to constitute a “Company Material Contract”:
(i) any Contract in effect and which has been filed (or is required to be filed) by ordinary course of business consistent with past practice; provided, that the Company as an exhibit pursuant to Item 601(b)(10) may enter into non-exclusive licenses of Regulation S-K under the Exchange Act, or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange Act;
(ii) any Contract: Company Intellectual Property with licensees (A) constituting a Company Employee Agreement under which annual salary or other stated annual cash compensation exceeds $200,000; in the ordinary course of the Company's business consistent with past practice and (B) pursuant outside of the ordinary course of the 34 Company's business consistent with past practice with the prior written consent of Parent, which consent shall not be unreasonably withheld or delayed; Indebtedness: incur any indebtedness for borrowed money or guarantee any such indebtedness, issue or sell any debt securities or options, warrants, calls or other rights to which acquire any debt securities or guarantee any debt securities of others, enter into any "keep well" or other agreement to maintain any financial statement condition, or enter into any arrangement having the economic effect of any of the Tetraphase Companies is foregoing other than in connection with the financing of ordinary course trade payables and capital equipment leases consistent with past practice; Loans: grant any loans to others or may become obligated to make any severance, termination purchase debt securities of others or similar payment to any Company Associate or any spouse, heir or Representative amend the terms of any Company Associateoutstanding loan agreement; (C) pursuant to which Payment of Obligations: pay, discharge or satisfy any of the Tetraphase Companies is claim or may become obligated to make any bonus or similar payment (Liability arising other than payments constituting bonuses or commissions paid in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) above;
(iii) any Contract with any labor union or any collective bargaining agreement or similar Contract for the benefit of any Company Associate(s);
(iv) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software);
(v) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Company;
(vi) any material Contract with any distributor and any material contract with any other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality the payment, discharge or nondisclosure agreements entered into satisfaction of Liabilities reflected or reserved against in such respective party's Financials or incurred since the ordinary course of business;
(vii) any material Contract (other than any purchase order entered into in the ordinary course of business) with sole source or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viii) any Contract that provides for: (A) reimbursement of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate;
(ix) any Contract (A) that restricts the ability date of the Tetraphase Companies to compete in any business or with any Person in any geographical area; (B) in which the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;
(x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into Current Balance Sheet in the ordinary course of business and reasonable expenses incurred in connection with the transactions contemplated by this Agreement; Expenditures: make any expenditures or that do not deviate enter into any commitment or transaction exceeding $25,000 individually or $50,000 in the aggregate as to the Company and $2,500 individually or $5,000 in the aggregate as to the Parent; Insurance: reduce the amount of any insurance coverage provided by existing insurance policies; Employees: hire or terminate any Employees, or encourage any Company Employees to resign from the Company, other than Non-Continuing Employees; Severance Arrangements: grant or increase or modify in favor of any Employee any severance or termination pay to any Employee except payments made pursuant to standard written agreements or plans outstanding on the date hereof and disclosed in the respective party's Disclosure Schedule; Employee Contracts: enter into or amend any Contract with any officer, director or employee; Employee Plans: adopt or amend any Employee Plan, enter into any employment Contract, pay or agree to pay any special bonus or special remuneration to any director, officer or Employee, or increase the salaries, wage rates, or other compensation of its Employees except payments made pursuant to standard written agreements in place on the date hereof and disclosed in the respective party's Disclosure Schedule; Litigation: commence or settle any litigation (other than a lawsuit for breach of this Agreement); Taxes: make or change any material election in respect from of Taxes, adopt or change any accounting method in respect of Taxes, enter into any closing agreement, settle or compromise any claim or assessment in respect of Taxes, or consent to any extension or waiver of the standard forms limitation period applicable to any claim or assessment in respect of Contracts previously Made Available Taxes; Acquisitions: acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets which are material, individually or in the Company aggregate, to Parent;
(xi) the respective party's business; Revaluation: revalue any Contract providing for any currency hedging;
(xii) any Contract requiring that of its assets, including, without limitation, writing down the value of inventory or writing off notes or accounts receivable; or Other: take or agree in writing or otherwise to take, any of the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposalactions described in Section 4.1(a) through Section 4.1(u) above, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for other action that would prevent the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2019; (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company); and
(xvii) any Contract, the termination of which would have a Company Material Adverse Effect. The Company has delivered or Made Available (including by filing with the SEC) to Parent an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as of the date of this Agreement.
(b) Each Company Contract that constitutes a Company Material Contract is valid and in full force and effect (except for Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period), and is enforceable in accordance with its terms, subject to: (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”).
(c) Except as set forth in Part 2.10(c) of the Company Disclosure Schedule: (i) none of the Tetraphase Companies has violated or breached in any material respectrespective party from performing, or committed any default in any material respect undercause the respective party not to perform, any Company Material Contract; (ii) to the knowledge of the Company, no other Person has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (iii) to the knowledge of the Company, no event has occurred, its covenants and no circumstance or condition exists, that (with or without notice or lapse of time) would reasonably be expected to: (A) result in a violation or breach in any material respect of any Company Material Contract; (B) give any Person the right to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received any written notice (or, to the knowledge of the Company, any other communication) regarding any actual or possible material violation or breach of, or material default under, any Company Material Contractagreements hereunder.
Appears in 2 contracts
Sources: Merger Agreement (Celsius Holdings, Inc.), Merger Agreement (Celsius Holdings, Inc.)
Contracts. (a) Part 2.10(a3.9(a) of the Company Disclosure Schedule identifies, identifies each Company Contract that constitutes a Material Contract as of the date of this Agreement, each Company Contract that constitutes a Company Material Contract and which remains in effect as of the date hereof and under which a Tetraphase Company has remaining material rights or obligations. For purposes of this Agreement, each of the following Company Contracts shall be deemed to constitute a “Company Material Contract”:
(i) any Company Contract (other than an Employee Plan) constituting a Company Employee Agreement (A) pursuant to which the Company is or may become obligated to make any severance, termination or similar payment to any Company Associate or any spouse or heir of any Company Associate, (B) pursuant to which the Company is or may become obligated to make any bonus, deferred compensation or similar payment (other than payments constituting base salary or commissions paid in the Ordinary Course) in excess of $100,000 to any Company Associate, (C) pursuant to which the Company is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any Company Stock Award other than accelerated vesting provided in Company Equity Plans and agreements issued thereunder, or (D) with any (x) executive officer of the Company or (y) member of the Company Board;
(ii) any Company Contract (A) limiting the freedom or right of an Acquired Entity or any of its Affiliates, in any material respect, to engage in any line of business, to make use of any material Company IP or to compete with any other Person in any location or line of business, or (B) containing any “most favored nations” terms and conditions (including with respect to pricing) granted by an Acquired Entity or exclusivity obligations or restrictions or otherwise limiting the freedom or right of an Acquired Entity or any of its Affiliates to sell, distribute or manufacture any products or services or any technology or other assets to or for any other Person;
(iii) any Company Contract that requires by its terms or is reasonably likely to require the payment or delivery of cash or other consideration by or to an Acquired Entity in an amount having an expected value in excess of $500,000 in the fiscal year ending December 31, 2016 or in any fiscal year thereafter and cannot be cancelled by the Acquired Entity without penalty or further payment without more than ninety (90) days’ notice (other than payments for services rendered to the date of this Agreement), excluding non-exclusive outbound licenses, “SaaS” licenses and end user license agreements entered into in the Ordinary Course;
(iv) any Company Contract relating to Indebtedness of any Acquired Entity in excess of $500,000 (whether incurred, assumed, guaranteed or secured by any asset);
(v) any Company Contract constituting a joint venture, partnership, limited liability company or similar relationship;
(vi) any Company Contract that requires or permits the Company, or any successor, to, or acquirer of the Company, to make any payment to another person as a result of a change of control of the Company (a “Change of Control Payment”) or gives another Person a right to receive or elect to receive a Change of Control Payment;
(vii) any Company Contract that prohibits the payment of dividends or distributions in respect of the capital stock of any Acquired Entity, the pledging of the capital stock or other equity interests of any Acquired Entity or the issuance of any guaranty by any Acquired Entity;
(viii) any In-bound License and any Out-bound License;
(ix) any other Company Contract that is currently in effect and which has been filed (or is required to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Act, Securities Act or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange Securities Act;
(ii) any Contract: (A) constituting a Company Employee Agreement under which annual salary or other stated annual cash compensation exceeds $200,000; (B) pursuant to which any of the Tetraphase Companies is or may become obligated to make any severance, termination or similar payment to any Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) above;
(iii) any Contract with any labor union or any collective bargaining agreement or similar Contract for the benefit of any Company Associate(s);
(iv) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software);
(v) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Company;
(vi) any material Contract with any distributor and any material contract with any other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(vii) any material Contract (other than any purchase order entered into in the ordinary course of business) with sole source or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viii) any Contract that provides for: (A) reimbursement of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate;
(ix) any Contract (A) that restricts the ability of the Tetraphase Companies to compete in any business or with any Person in any geographical area; (B) in which the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;
(x) any Company Contract incorporating with any Affiliate, director, executive officer (as such term is defined in the Exchange Act), holder of 5% or providing for more of Company Common Stock or any material guaranty, warranty, sharing of liabilities or indemnity their Affiliates (including any indemnity with respect to Intellectual Property or Intellectual Property Rightsother than the Company) or similar obligation, immediate family members (other than employee offer letters that can be terminated at will without severance obligations and Company Contracts entered into in the ordinary course of business or that do not deviate in any material respect from the standard forms of Contracts previously Made Available by the pursuant to Company to ParentStock Awards);
(xi) any Company Contract providing for the purchase, sale, lease or sublease of any currency hedgingmaterial real property, including each Company Lease;
(xii) any Company Contract requiring that where the Company or any of its Subsidiaries is a party, pursuant to which Protected Health Information is shared, sold, rented, licensed, stored (whether physically, in the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposalcloud, or prior by other electronic means) or transferred to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transactionthird persons for purposes other than the performance of services for the Acquired Entities;
(xiii) any Company Contract providing for the lease or sublease of Tetraphase Leased Real Propertywith any Governmental Body;
(xiv) any Company Contract that is a Government Contract;relating to settlement of any administrative or judicial proceedings within the past six years; and
(xv) any ContractCompany Contract with a Material Revenue Generator or Material Supplier that is not fully performed in all material respects as of the date hereof, not covered requires by another clause of this Section 2.10(a), that: (A) involved its terms or is reasonably likely to require the payment or delivery of cash or other consideration to an Acquired Entity in an amount or having a an expected value in excess of $200,000 100,000 in the fiscal year ending December 31, 2019; (B) requires by its terms the payment 2016 or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the any fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;thereafter.
(xvib) any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company); and
(xvii) any Contract, the termination of which would have a Company Material Adverse Effect. The Company has delivered or Made Available (including by filing with the SEC) to Parent an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as As of the date of this Agreement.
, the Company has either delivered or made available to Parent or Parent’s Representatives an accurate and complete copy (bincluding all exhibits, schedules and amendments) Each Company Contract that constitutes a Company of each Material Contract or has publicly made available a complete copy of such Material Contract in the Electronic Data Gathering, Analysis and Retrieval database of the SEC. Neither the applicable Acquired Entity nor, to the knowledge of the Company, the other party is in material breach of or material default under any Material Contract and neither the applicable Acquired Entity, nor, to the knowledge of the Company, the other party has taken or failed to take any action that with or without notice, lapse of time or both would constitute a material breach of or material default under any Material Contract. Each Material Contract is, with respect to the applicable Acquired Entity and, to the knowledge of the Company, the other party, a valid agreement, binding, and in full force and effect (except for Contracts that are expiredeffect. To the knowledge of the Company, terminated, and/or not renewed during the Pre-Closing Period), and each Material Contract is enforceable by the applicable Acquired Entity in accordance with its terms, subject to: to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; debtors and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”).
(c) Except as set forth in Part 2.10(c) of the Company Disclosure Schedule: (i) none of the Tetraphase Companies has violated or breached in any material respectremedies. Since January 1, or committed any default in any material respect under, any Company Material Contract; (ii) to the knowledge of the Company, no other Person has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (iii) to the knowledge of the Company, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) would reasonably be expected to: (A) result in a violation or breach in any material respect of any Company Material Contract; (B) give any Person the right to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and 2014 through the date of this Agreement, none of the Tetraphase Companies has Acquired Entities have not received any written notice (or, to the knowledge of the Company, any other communication) regarding any actual or possible material violation or breach ofor default under any Material Contract that has not since been cured, except for violations or material default underbreaches that are not, any individually or in the aggregate, reasonably likely to have a Company Material Adverse Effect. No Acquired Entity has waived in writing any rights under any Material Contract, the waiver of which would have, either individually or in the aggregate, a Company Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (J2 Global, Inc.), Merger Agreement (Everyday Health, Inc.)
Contracts. (a) Part 2.10(aSection 4.12(a) of the Company Seller Disclosure Schedule identifiesLetter contains a list (or, as applicable, contains a cross-reference to another Section of the date Seller Disclosure Letter that lists), organized according to each subsection of this AgreementSection 4.12(a) which applies to such Contract, of each Company Contract that constitutes a Company Material Contract and which remains of the following Transferred Contracts (other than Real Property Leases, Benefit Plans or Employment Agreements) (the contracts listed on Section 4.12(a) of the Seller Disclosure Letter together with contracts of the type described in effect as of subclauses (i)-(xiii) entered into after the date hereof and under which a Tetraphase Company has remaining material rights or obligations. For purposes of this Agreement, each of prior to the following Company Contracts shall be deemed Closing Date are collectively referred to constitute a herein as the “Company Material ContractContracts”:):
(i) any Contract in effect and which has been filed (that is required by its terms or is required currently expected to be filed) result in the payment or receipt by the Company as an exhibit pursuant to Item 601(b)(10) Business of Regulation S-K under the Exchange Act, or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange Act;
(ii) any Contract: (A) constituting a Company Employee Agreement under which annual salary or other stated annual cash compensation exceeds more than $200,000; (B) pursuant to which any of the Tetraphase Companies is or may become obligated to make any severance, termination or similar payment to any Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid 1,000,000 in the ordinary course of business); current fiscal year or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) above;
(iii) any Contract with any labor union or any collective bargaining agreement or similar Contract for the benefit of any Company Associate(s);
(iv) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than nonone-exclusive licenses to unmodified commercially available third party software);
(v) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Company;
(vi) any material Contract with any distributor and any material contract with any other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representativeyear period over its remaining term, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(vii) any material Contract (other than any purchase order entered into in the ordinary course of business) with sole source or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viii) any Contract that provides for: (A) reimbursement of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate;
(ix) any Contract (A) that restricts the ability of the Tetraphase Companies to compete in any business or with any Person in any geographical area; (B) in which the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;
(x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts orders entered into in the ordinary course of business consistent with past practice;
(ii) any Contract entered into with (x) an Affiliate, officer or director of Seller or any of its Subsidiaries or of any Transferred Entity or (y) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entity;
(iii) any Contract that do not deviate restricts the Business from competing with any Person or engaging in any line of business or activity in any geographic region in which the Business operates, other than any such restrictions that are not and would not reasonably be expected to be material respect to the Business, taken as a whole;
(iv) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Person;
(v) all Contracts pursuant to which Seller, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the standard forms aggregate or annual payments of Contracts previously Made Available less than fifty thousand dollars ($50,000) per year) (each, an “IP License”);
(vi) any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expenses;
(vii) any Contract evidencing an outstanding loan, advance or investment by the Company Business to Parentor in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b);
(viii) any Contract to make capital expenditures in excess of $1,000,000;
(ix) any Contract providing for the grant to any third-party of any right of first refusal or other similar rights to purchase any of the Business’ assets, properties or businesses;
(x) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such Person;
(xi) any Contract providing for on-going indemnification obligations as of the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts or other arrangements to which it is a party for goods or services furnished by or to it, except for any currency hedgingsuch agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;
(xii) any Contract requiring that any Contracts entered into with the customers or suppliers of the Tetraphase Companies give Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any written notice product or provide any information to any Person prior to responding to service from such Person, that contain “take or prior to accepting any Acquisition Proposal pay” provisions or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transactionthat contain minimum purchase requirements;
(xiii) any Contract providing for which involves the lease sale, transfer or sublease acquisition of Tetraphase Leased Real Property;any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiaries; and
(xiv) any Contract that is a Government Contract;with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services to the Business.
(xvb) Section 4.12(b) of the Seller Disclosure Letter sets forth a complete and correct list, as of the date hereof, of each Contract pursuant to which Seller or any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2019; (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company Subsidiaries (other than confidentiality a Transferred Entity) is a party that is used or nondisclosure agreements held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by any Tetraphase Companyor otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”); and.
(xviic) any ContractExcept for terminations in accordance with the terms of such Material Contracts after the date hereof, each Material Contract is a legal, valid and binding obligation of Seller or one of its Subsidiaries, enforceable against such Person in accordance with its terms and, to Seller’s Knowledge, each other party thereto, and is in full force and effect subject in all cases to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a legal, valid and binding obligation, enforceable, or in full force and effect that, individually or in the termination of which aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect. The Company Seller has delivered or Made Available (including by filing with the SEC) made available to Parent an accurate Purchaser a complete and complete correct copy of each Company Contract that constitutes a Company written Material Contract Contract, in each case, as of amended, supplemented or otherwise modified through (and including) the date of this Agreement.
(bd) Each Company Contract that constitutes a Company As of the date hereof, none of Seller, any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any Material Contract is valid and has exercised any termination rights or indicated to Seller either orally or in full force and effect (except for Contracts that are expiredwriting such party’s intent to terminate such Material Contract, terminated, and/or not renewed during in each case other than any termination at the Pre-Closing Period), and is enforceable end of such Material Contract’s term in accordance with its terms, subject to: (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”).
(ce) Except as set forth Neither Seller nor any of its Subsidiaries is in Part 2.10(c) of the Company Disclosure Schedule: (i) none of the Tetraphase Companies has violated breach or breached in default under any material respectMaterial Contract and, or committed any default in any material respect under, any Company Material Contract; (ii) to the knowledge Knowledge of the CompanySeller, no other Person has violated party to any such Material Contract is in breach or breached in any material respectdefault thereunder, or committed any default in any material respect under, any Company Material Contract; (iii) and to the knowledge of the Company, Seller’s Knowledge no event has occurred, and no circumstance or condition exists, has occurred and is continuing that constitutes or would constitute (with or without notice or lapse of time) time or both), a breach or default on the part of Seller or any of its Subsidiaries, or any other party to such Material Contract, nor has Seller or any of its Subsidiaries received any notice of any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably be expected to: (A) result in to have a violation or breach in any material respect of any Company Material Contract; (B) give any Person the right to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received any written notice (or, to the knowledge of the Company, any other communication) regarding any actual or possible material violation or breach of, or material default under, any Company Material ContractAdverse Effect.
Appears in 2 contracts
Sources: Acquisition Agreement (SB/RH Holdings, LLC), Acquisition Agreement (Energizer Holdings, Inc.)
Contracts. (a) Part 2.10(a) of the Company Disclosure Schedule identifiesExcept as set forth in WHG DISCLOSURE SCHEDULE 3.08(a), as of the date of this Agreement, each Company Contract that constitutes neither WHG nor any WHG Subsidiary is a Company Material Contract and which remains in effect as of the date hereof and under which a Tetraphase Company has remaining material rights party to or obligations. For purposes of this Agreement, each of the following Company Contracts shall be deemed to constitute a “Company Material Contract”:
subject to: (i) any Contract in effect and which has been filed (employment, consulting or is required to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) severance contract or material arrangement with any past or present officer, director or employee of Regulation S-K under the Exchange ActWHG nor any WHG Subsidiary, or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange Act;
except for "at will" arrangements; (ii) any Contract: (A) constituting a Company Employee Agreement under which annual salary plan, material arrangement or other stated annual cash compensation exceeds $200,000; (B) pursuant to which any of the Tetraphase Companies is or may become obligated to make any severancecontract providing for bonuses, termination pensions, options, deferred compensation, retirement payments, profit sharing or similar payment to material arrangements for or with any Company Associate past or present officers, directors or employees of WHG or any spouse, heir or Representative of any Company AssociateWHG Subsidiary; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) above;
(iii) any Contract collective bargaining agreement with any labor union relating to employees of WHG or any collective bargaining agreement or similar Contract for the benefit of any Company Associate(s);
WHG Subsidiary; (iv) each material Contract pursuant to any agreement which any Intellectual Property Rights or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software);
by its terms limits the payment of dividends by Heritage Bank; (v) each any instrument evidencing or related to material Contract pursuant to which any Intellectual Property Rights indebtedness for borrowed money whether directly or Intellectual Property incorporated into any Company Product are licensed indirectly, by any Tetraphase Company;
(vi) any material Contract with any distributor and any material contract with any other reseller way of purchase money obligation, conditional sale, lease purchase, guaranty or sales representativeotherwise, in each case that provides exclusivity rights respect of which WHG or any WHG Subsidiary is an obligor to such distributorany person, reseller which instrument evidences or sales representative, relates to indebtedness other than confidentiality or nondisclosure agreements entered into in deposits, borrowings from the ordinary course FHLB of business;
(vii) any material Contract (other than any purchase order entered into in the ordinary course of business) with sole source or single source suppliers to any Tetraphase Company of products or servicesAtlanta, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viii) any Contract that provides for: (A) reimbursement of any Company Associate forrepurchase agreements, or advancement to any Company Associate ofbankers' acceptances, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate;
(ix) any Contract (A) that restricts the ability of the Tetraphase Companies to compete in any business or with any Person in any geographical area; (B) in which the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;
(x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into "treasury tax and loan" accounts established in the ordinary course of business and transactions in "federal funds" or which contains financial covenants or other restrictions (other than those relating to the payment of principal and interest when due) which would be applicable on or after the Closing Date to BCSB or any BCSB Subsidiary; (vi) any agreement, written or oral, that do not deviate obligates WHG or any WHG Subsidiary for the payment of more than $25,000 annually; or (vii) any contract (other than this Agreement) limiting the freedom, in any material respect from the standard forms respect, of Contracts previously Made Available by the Company WHG to Parent;
(xi) engage in any Contract providing for any currency hedging;
(xii) any Contract requiring that any type of the Tetraphase Companies give any written notice banking or provide any information bank-related business which it or Heritage Bank is permitted to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration engage in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2019; (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company); and
(xvii) any Contract, the termination of which would have a Company Material Adverse Effect. The Company has delivered or Made Available (including by filing with the SEC) to Parent an accurate and complete copy of each Company Contract that constitutes a Company Material Contract under applicable law as of the date of this Agreement.
(b) Each Company Contract that constitutes a Company Material Contract is valid True and correct copies of agreements, plans, contracts, arrangements and instruments referred to in Section 3.08(a), have been provided to BCSB on or before the date hereof, are listed on WHG DISCLOSURE SCHEDULE 3.08(a) and are in full force and effect on the date hereof and neither WHG nor any WHG Subsidiary (except for Contracts that are expirednor, terminatedto the knowledge of Heritage Bank, and/or not renewed during the Pre-Closing Period)any other party to any such contract, and plan, arrangement or instrument) has materially breached any provision of, or is enforceable in accordance with its termsdefault in any respect under any term of, subject to: (i) laws of general application relating to bankruptcyany such contract, insolvency and the relief of debtors; and (ii) rules of law governing specific performanceplan, injunctive relief and other equitable remedies (the “Enforceability Exceptions”).
(c) arrangement or instrument. Except as set forth in Part 2.10(c) the WHG DISCLOSURE SCHEDULE 3.08(b), no party to any material contract, plan, arrangement or instrument will have the right to terminate any or all of the Company Disclosure Schedule: (i) provisions of any such contract, plan, arrangement or instrument as a result of the execution of, and the transactions contemplated by, this Agreement. Except as set forth in WHG DISCLOSURE SCHEDULE 3.08(b), none of the Tetraphase Companies has violated employees (including officers) of WHG or breached in any material respectWHG Subsidiary, or committed any default in any material respect under, any Company Material Contract; (ii) to the knowledge of the Company, no other Person has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (iii) to the knowledge of the Company, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) would reasonably be expected to: (A) result in a violation or breach in any material respect of any Company Material Contract; (B) give any Person possess the right to declare terminate their employment and receive or be paid (or cause WHG or any WHG Subsidiary to accrue on their behalf) benefits solely as a result of the execution of this Agreement or the consummation of the transactions contemplated thereby. Except as set forth in WHG DISCLOSURE SCHEDULE 3.08(b), no plan, contract, employment agreement, termination agreement, or similar agreement or arrangement to which WHG or any WHG Subsidiary is a party or under which WHG or any WHG Subsidiary may be liable contains provisions which permit an employee or independent contractor to terminate it without cause and continue to accrue future benefits thereunder. Except as set forth in WHG DISCLOSURE SCHEDULE 3.08(b), no such agreement, plan, contract, or arrangement (x) provides for acceleration in the vesting of benefits or payments due thereunder upon the occurrence of a change in ownership or control of WHG or any WHG Subsidiary or upon the occurrence of a subsequent event; or (y) requires WHG or any WHG Subsidiary to provide a benefit in the form of WHG Common Stock or determined by reference to the value of WHG Common Stock. Except as set forth in WHG DISCLOSURE SCHEDULE 3.08(b) no such agreement, plan or arrangement with respect to officers or directors of WHG or Heritage Bank or to its employees, provides for benefits that may cause an "excess parachute payment" or the disallowance of a federal income tax deduction under IRC Section 280G.
(c) Each real estate lease that may require the consent of the lessor or its agent resulting from the Merger by virtue of a prohibition or restriction relating to assignment, by operation of law or otherwise, or change in control, is listed in WHG DISCLOSURE SCHEDULE 3.08 identifying the section of the lease that contains such prohibition or restriction. Neither WHG nor any WHG Subsidiary is in default in any material respect under any Company Material Contract; (C) give any Person the right material contract, agreement, commitment, arrangement, lease, insurance policy or other instrument to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancelwhich it is a party, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31by which its assets, 2018 and the date of this Agreement, none of the Tetraphase Companies has received any written notice (or, to the knowledge of the Company, any other communication) regarding any actual or possible material violation or breach ofbusiness, or material default underoperations may be bound or affected, or under which it or its assets, business, or operations receive benefits, and there has not occurred any Company Material Contractevent that, with the lapse of time or the giving of notice or both, would constitute such a default.
Appears in 2 contracts
Sources: Merger Agreement (BCSB Bankcorp Inc), Merger Agreement (WHG Bancshares Corp)
Contracts. (a) Part 2.10(a) of Except as filed as exhibits to the Company Disclosure Schedule identifiesSEC Documents filed prior to the date hereof, there is no Company Agreement which, as of the date of this Agreementhereof, each Company Contract that constitutes (A) is a Company Material Contract and which remains "material contract" (as such term is defined in effect as of the date hereof and under which a Tetraphase Company has remaining material rights or obligations. For purposes of this Agreement, each of the following Company Contracts shall be deemed to constitute a “Company Material Contract”:
(i) any Contract in effect and which has been filed (or is required to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under of the Exchange ActSEC), or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange Act;
(ii) any Contract: (A) constituting a Company Employee Agreement under which annual salary or other stated annual cash compensation exceeds $200,000; (B) pursuant to which any involves aggregate expenditures in excess of the Tetraphase Companies is or may become obligated to make any severance$2 million, termination or similar payment to any Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any involves annual expenditures in excess of the Tetraphase Companies is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest $1 million in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) above;
(iii) any Contract with any labor union or any collective bargaining agreement or similar Contract for the benefit of any Company Associate(s);
(iv) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property that has been incorporated into any Company Product twelve month period and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software);
(v) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Company;
(vi) any material Contract with any distributor and any material contract with any other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements was not entered into in the ordinary course of business;
, (viiD) that contains "take or pay" provisions applicable to the Company or any material Contract Company Subsidiary, (other than E) that contains any purchase order entered into in the ordinary course of business) non-compete or exclusivity provisions with sole source or single source suppliers respect to any Tetraphase line of business or geographic area with respect to the Company of products or servicesany Company Subsidiary, other than confidentiality or nondisclosure agreements entered into in which restricts the ordinary course of business;
(viii) any Contract that provides for: (A) reimbursement conduct of any line of business by the Company Associate foror any Company Subsidiary, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate;
(ix) any Contract (A) that restricts the ability of the Tetraphase Companies to compete in any business or with any Person in any geographical area; (B) geographic area in which the Company or any Tetraphase Company has granted development rightsSubsidiary conducts business, “most favored nation” pricing provisions or marketing or distribution rights relating to (F) contains any product or product candidate; (Cx) in term under which the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;
(x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Subsidiary licenses Intellectual Property or Intellectual Property RightsRights from a third party (other than Ordinary Course Inbound Licenses), or (y) term under which the Company or any Company Subsidiary licenses Intellectual Property or Intellectual Property Rights to any third party (other than Ordinary Course Outbound Licenses), (G) that is a partnership, joint venture or similar obligationarrangement, other than Contracts entered into in the ordinary course of business or that do not deviate in any material respect from the standard forms of Contracts previously Made Available by unless immaterial to the Company to Parent;
and the Company Subsidiaries or (xiH) any Contract providing for any currency hedging;
(xii) any Contract requiring that which would prohibit or materially delay the consummation of the Offer, the Merger or any of the Tetraphase Companies give any written notice other Transactions. Each contract of the type described above in Section 3.13, whether or provide any information not set forth in Section 3.13 of the Company Disclosure Schedule, is referred to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for herein as a "Company Material Agreement." Each Company Material Agreement is valid and binding on the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract Company and each Company Subsidiary that is a Government Contract;
(xv) any Contractparty thereto and, not covered by another clause of this Section 2.10(a)to the Company's knowledge, that: (A) involved the payment or delivery of cash or each other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31party thereto, 2019; (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31as applicable, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company); and
(xvii) any Contract, the termination of which would have a Company Material Adverse Effect. The Company has delivered or Made Available (including by filing with the SEC) to Parent an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as of the date of this Agreement.
(b) Each Company Contract that constitutes a Company Material Contract is valid and in full force and effect (except for Contracts that are expired(x) such enforcement may be subject to applicable bankruptcy, terminatedinsolvency or other similar laws, and/or not renewed during now or hereafter in effect, affecting creditors' rights generally and (y) the Pre-Closing Periodremedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought), and is enforceable the Company and each Company Subsidiary has performed all obligations required to be performed by it under each Company Material Agreement and, to the Company's knowledge, each other party to each Company Material Agreement has performed all obligations required to be performed by it under such Company Material Agreement, except as would not have, individually or in accordance with its termsthe aggregate, subject to: (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”).
(c) Except as set forth in Part 2.10(c) a Company Material Adverse Effect. None of the Company Disclosure Schedule: (i) none of the Tetraphase Companies or any Company Subsidiary has violated or breached in any material respectknowledge of, or committed has received written notice of, any violation or default in under (or any material respect condition which with the passage of time or the giving of notice would cause such a violation of or default under, ) any Company Material Contract; (ii) to Agreement except for violations or defaults that would not have, individually or in the knowledge of the Companyaggregate, no other Person has violated or breached in any material respect, or committed any default in any material respect under, any a Company Material Contract; (iii) to the knowledge of the Company, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) would reasonably be expected to: (A) result in a violation or breach in any material respect of any Company Material Contract; (B) give any Person the right to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received any written notice (or, to the knowledge of the Company, any other communication) regarding any actual or possible material violation or breach of, or material default under, any Company Material ContractAdverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Hewlett Packard Co), Merger Agreement (Opsware Inc)
Contracts. (a) Part 2.10(a) of the Company Disclosure Schedule identifies, as of the date of this Agreement, each Company Contract that constitutes a Company Material Contract and which remains in effect as of the date hereof and under which a Tetraphase Company has remaining material rights or obligations. For purposes of this Agreement, each of the following Company Contracts shall be deemed to constitute a “"Company Material Contract”":
(i) any Acquired Corporation Contract in effect and which has been filed (or that is required by the rules and regulations of the SEC to be filed) by the Company filed as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Act, or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange ActCompany SEC Documents;
(ii) any Contract: (A) constituting a Company Employee Agreement under which annual salary or other stated annual cash compensation exceeds $200,000; (B) Acquired Corporation Contract relating to the employment of any employee, and any Contract pursuant to which any of the Tetraphase Companies Acquired Corporations is or may become obligated to make any severance, termination termination, bonus or similar relocation payment to any Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar other payment (other than payments constituting bonuses in respect of salary) in excess of $100,000, to any current or commissions paid in the ordinary course of business); former employee or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) abovedirector;
(iii) any Acquired Corporation Contract with any labor union relating to the acquisition, transfer, development, sharing or any collective bargaining agreement or similar Contract for the benefit license of any Company Associate(smaterial Proprietary Asset (except for any Acquired Corporation Contract pursuant to which (A) any material Proprietary Asset is licensed to the Acquired Corporations under any third party software license generally available for sale to the public, or (B) any material Proprietary Asset is licensed by any of the Acquired Corporations to any Person on a non-exclusive basis);
(iv) each material any Acquired Corporation Contract pursuant to which provides for indemnification of any Intellectual Property Rights officer, director or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software)employee;
(v) each material any Acquired Corporation Contract pursuant creating or relating to which any Intellectual Property Rights partnership or Intellectual Property incorporated into joint venture or any Company Product are licensed by any Tetraphase Companysharing of revenues, profits, losses, costs or liabilities;
(vi) any material Acquired Corporation Contract with that involves the payment or expenditure of $100,000 or more in any distributor and any material contract with any other reseller 12-month period or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other more than confidentiality or nondisclosure agreements entered into $200,000 in the ordinary course aggregate that may not be terminated by the applicable Acquired Corporation (without penalty) within sixty (60) days after the delivery of businessa termination notice by the applicable Acquired Corporation;
(vii) any material Acquired Corporation Contract (other than any purchase order entered into in the ordinary course of business) with sole source contemplating or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viii) any Contract that provides for: involving (A) reimbursement of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate;
(ix) any Contract (A) that restricts the ability of the Tetraphase Companies to compete in any business or with any Person in any geographical area; (B) in which the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;
(x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into in the ordinary course of business or that do not deviate in any material respect from the standard forms of Contracts previously Made Available by the Company to Parent;
(xi) any Contract providing for any currency hedging;
(xii) any Contract requiring that any of the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 100,000 in the fiscal year ending December 31aggregate, 2019; or (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 100,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020aggregate;
(xviviii) any Acquired Corporation Contract imposing any restriction on the right or ability of any Acquired Corporation to (A) compete with any other Person, (B) acquire any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company product or other material asset or any services from any other Person, sell any material product or other material asset to or perform any services for any other Person or transact business or deal in any other manner with any other Person, or (without penalty in excess of $75,000C) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality develop or nondisclosure agreements entered into by distribute any Tetraphase Company)material technology; and
(xviiix) any other Acquired Corporation Contract, the termination if a breach of which would such Acquired Corporation Contract could reasonably be expected to have a Company Material Adverse Effect. The Company has delivered or Made Available Effect on the Acquired Corporations (including by filing with the SEC) to Parent an accurate and complete copy of each Company Contract that constitutes taken as a Company Material Contract as of the date of this Agreementwhole).
(b) Each Company Contract that constitutes a Company Material Contract is valid and in full force and effect (except for Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period)effect, and is enforceable in accordance with its terms, subject to: (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”).
(c) Except as set forth in Part 2.10(c) None of the Company Disclosure Schedule: (i) none of the Tetraphase Companies Acquired Corporations has violated or breached in any material respectbreached, or committed any material default in any material respect under, any Company Material Contract; (ii) to the knowledge of . To the Company's knowledge, no other Person has violated or breached in any material respectbreached, or committed any material default in any material respect under, any Company Material Contract; .
(iiid) to the knowledge of To the Company's knowledge, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) would could reasonably be expected to: to (Ai) result in a material violation or breach in of any material respect provision of any Company Material ContractContract by any of the Acquired Corporations; (Bii) give any Person the right to declare a material default in or exercise any material respect remedy under any Company Material Contract; (Ciii) to the Company's knowledge, give any Person the right to receive or require a material rebate, chargeback, penalty or change in delivery schedule under any Company Material Contract; (iv) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (Dv) give any Person the right to cancelcancel or terminate, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received any written notice (or, to the knowledge of the Company, any other communication) regarding any actual or possible material violation or breach of, or material default underrespect, any Company Material Contract.
(e) None of the Acquired Corporations is a guarantor or otherwise liable for any liability or obligation (including indebtedness) of any other Person other than any of the Acquired Corporations.
(f) Schedule 2.7(f) of the Company Disclosure Schedule provides a list of all Company Material Contracts (including all amendments thereto). The Company has provided or made available to Parent a copy of each Company Material Contract (including all amendments thereto) listed in Schedule 2.7(g) of the Company Disclosure Schedule, other than Company Material Contracts filed as exhibits to the Company SEC Documents and all copies of all amendments to the Company Material Contracts filed as exhibits to the Company SEC Documents, to the extent such amendments have not been filed with the SEC.
(g) Neither Company nor any Acquired Corporation is a party to any contract with the United States government or to any other material Government Contract.
Appears in 2 contracts
Sources: Merger Agreement (Titan Corp), Merger Agreement (Titan Corp)
Contracts. (a) Part 2.10(aExcept as filed as exhibits to the Company SEC Documents filed prior to the date hereof, Section 3.13(a) of the Company Disclosure Schedule identifiesLetter sets forth a list of each note, bond, mortgage, lien, indenture, lease, license, contract or agreement, arrangement or other instrument or obligation (“Contract”), to which the Company or any Company Subsidiary is a party or by which any of its properties or assets are bound which, to the Company’s knowledge and as of the date of this Agreement, each Company Contract that constitutes a Company Material Contract and which remains in effect as of the date hereof and under which a Tetraphase Company has remaining material rights or obligations. For purposes of this Agreement, each of the following Company Contracts shall be deemed to constitute a “Company Material Contract”hereof:
(i) any Contract in effect and which has been filed (or is required to be filed) by the Company filed as an exhibit to the Company’s Annual Report on Form 10-K pursuant to Item 601(b)(10) of Regulation S-K under promulgated by the Exchange Act, SEC or that would be required to be disclosed under Item 404 of Regulation Sby the Company in a Current Report on Form 8-K under the Exchange ActK;
(ii) obligates the Company or any Contract: (A) constituting a Company Employee Agreement under which annual salary or other stated annual cash compensation exceeds $200,000; (B) pursuant to which any of the Tetraphase Companies is or may become obligated Subsidiary to make any severance, termination or similar payment to any Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment non-contingent aggregate annual expenditures (other than principal and/or interest payments constituting bonuses or commissions paid the deposit of other reserves with respect to debt obligations) in excess of $1,000,000 and is not cancelable within ninety (90) days without material penalty to the ordinary course of business); Company or (D) pursuant to which any of the Tetraphase Companies is Company Subsidiary, except for any Company Lease or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) aboveCompany Ground Lease;
(iii) contains any Contract non-compete or exclusivity provisions with any labor union or any collective bargaining agreement or similar Contract for the benefit of any Company Associate(s);
(iv) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property that has been incorporated into any Company Product and is licensed respect to any Tetraphase Company (other than non-exclusive licenses line of business or geographic area with respect to unmodified commercially available third party software);
(v) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase the Company;
(vi) any material Contract with any distributor and any material contract with any other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(vii) any material Contract (other than any purchase order entered into in the ordinary course of business) with sole source or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viii) any Contract that provides for: (A) reimbursement of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate;
(ix) any Contract (A) that restricts the ability upon consummation of the Tetraphase Companies to compete in any business Transactions, Parent or with any Person in any geographical area; (B) in its Subsidiaries, or which the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect restricts the conduct of any line of business that is material to the business of Company and the Tetraphase CompaniesCompany Subsidiaries, taken as a whole, except for any (x) Company Lease or Company Ground Lease or (y) recorded property declarations, recorded reciprocal easement agreements or recorded restrictive covenant agreements affecting any Company Property, which Company Leases, Company Ground Leases, declarations and agreements contain non-compete or exclusivity provisions restricting activities of the Company or any Company Subsidiary or restricting the conduct of any line of business by the Company or any Company Subsidiary, in each case, solely within a five mile radius of the applicable Company Property;
(iv) constitutes an Indebtedness obligation of the Company or any Company Subsidiary with a principal amount as of the date hereof greater than $2,000,000;
(v) requires the Company or any Company Subsidiary to dispose of or acquire assets or properties (other than any real property) that (together with all of the assets and properties subject to such requirement in such Contract) have a fair market value in excess of $1,000,000, or involves any pending or contemplated merger, consolidation or similar business combination transaction;
(vi) constitutes an interest rate cap, interest rate collar, interest rate, currency or commodity derivative or other contract or agreement relating to a hedging transaction;
(vii) sets forth the operational terms of a joint venture, partnership or similar arrangement;
(viii) constitutes a loan to any Person (other than a wholly owned Company Subsidiary) by the Company or any Company Subsidiary (other than advances made pursuant to and expressly disclosed in the Company Leases or pursuant to any disbursement agreement, development agreement, or development addendum entered into in connection with a Company Lease with respect to the development, construction, or equipping of Company Properties or the funding of improvements to Company Properties) in an amount in excess of $1,000,000;
(ix) is a Company IP Agreement that is material to the operation of the business of the Company and Company Subsidiaries substantially as currently conducted;
(x) prohibits the pledging of the capital stock of the Company or any Contract incorporating Company Subsidiary or providing prohibits the issuance of guarantees by any Company Subsidiary, except for any material guarantyCompany Lease or Company Ground Lease or recorded property declarations, warrantyrecorded reciprocal easement agreements or recorded restrictive covenant agreements affecting any Company Property;
(xi) has continuing “earn-out” or other similar contingent purchase price payment obligations, sharing in each case that could result in payments, individually or in the aggregate, in excess of liabilities or indemnity $500,000; or
(including any indemnity with respect to Intellectual Property or Intellectual Property Rightsxii) or similar obligation, other than Contracts entered into is (A) not made in the ordinary course of business or that do not deviate in any material respect from the standard forms of Contracts previously Made Available by the Company to Parent;
(xi) any Contract providing for any currency hedging;
(xii) any Contract requiring that any of the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2019; consistent with past practice and (B) requires by its terms material to the payment Company and the Company Subsidiaries, taken as a whole, except, in each case, for any Company Lease or delivery any Company Ground Lease or any recorded property declarations, recorded reciprocal easement agreements or recorded restrictive covenant agreements affecting any Company Property.
(b) Each Contract of cash the type described above in Section 3.13(a) and in effect as of the date hereof, whether or other consideration not set forth in an amount Section 3.13(a) of the Company Disclosure Letter, is referred to herein as a “Company Material Contract.” Except as, individually or having a value in excess of $200,000 in the fiscal year ending December 31aggregate, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) any material Contract that has a term of more than one year not had and which may would not reasonably be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company); and
(xvii) any Contract, the termination of which would expected to have a Company Material Adverse Effect. The Company has delivered or Made Available (including by filing with the SEC) to Parent an accurate and complete copy of , each Company Contract that constitutes a Company Material Contract as of the date of this Agreement.
(b) Each Company Contract that constitutes a Company Material Contract is legal, valid and binding on the Company and each Company Subsidiary that is a party thereto, and is in full force and effect (effect, except for Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period), and is enforceable in accordance with its terms, subject to: as may be limited by (i) laws of general application bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to bankruptcy, insolvency and the relief of debtors; creditors’ rights generally and (ii) rules general principles of law governing specific performanceequity (regardless of whether enforceability is considered in a proceeding in equity or at Law). Except as, injunctive relief individually or in the aggregate, have not had and other equitable remedies (the “Enforceability Exceptions”).
(c) Except as set forth in Part 2.10(c) of the Company Disclosure Schedule: (i) none of the Tetraphase Companies has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (ii) to the knowledge of the Company, no other Person has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (iii) to the knowledge of the Company, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) would not reasonably be expected to: to have a Company Material Adverse Effect, (A) result in a violation or breach in any material respect of neither the Company nor any Company Material Contract; (B) give any Person the right to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancelSubsidiary, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received any written notice (ornor, to the knowledge of the Company’s knowledge, any other communication) regarding any actual party thereto, is in breach or possible material violation or breach of, or material default under, any Company Material Contract, and (B) no event has occurred that with notice or lapse of time or both would constitute a violation, breach or default under any Company Material Contract. Neither the Company nor any Company Subsidiary has received notice of any violation or default under or notice to terminate, not renew or challenge the validity or enforceability of any Company Material Contract, except for violations, defaults, notices to terminate or not renew or challenges to the validity or enforceability of any Company Material Contract that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.
(c) The Company has delivered or made available to Parent or provided to Parent for review, prior to the execution of this Agreement, true and complete copies of all of the Company Material Contracts.
Appears in 2 contracts
Sources: Merger Agreement (Griffin-American Healthcare REIT II, Inc.), Merger Agreement (Northstar Realty Finance Corp.)
Contracts. (a) Part 2.10(aAll Contracts, including amendments thereto, required to be filed as an exhibit to any report of the Company filed pursuant to the Exchange Act of the type described in Item 601(b)(10) of Regulation S-K promulgated by the SEC have been filed, and no such Contract has been amended or modified, except as set forth in Section 3.18(a) of the Company Disclosure Schedule identifiesLetter. All such filed Contracts shall be deemed to have been made available to Parent.
(b) Other than the Contracts described in Section 3.18(a), Section 3.18(b) of the Company Disclosure Letter sets forth a complete list, and the Company has made available to Parent correct and complete copies, of any Contract to which the Company or any of the Company Subsidiaries is a party to or bound by, as of the date of this Agreement, each Company Contract that constitutes a Company Material Contract and which remains in effect as of the date hereof and under which a Tetraphase Company has remaining material rights or obligations. For purposes of this Agreement, each of the following Company Contracts shall be deemed to constitute a “Company Material Contract”hereof:
(i) that is any non-competition Contract or other Contract that (A) purports to limit in effect any material respect either the type of business in which the Company or the Company Subsidiaries (or, after the Effective Time, Parent or its Subsidiaries) or any of their affiliates may engage or the manner or geographic area in which any of them may so engage in any business, except for franchise agreements between the Company or one of the Company Subsidiaries and the applicable jurisdictions or (B) is a material Contract that grants “most favored nation” status that, following the Merger, would apply to Parent and its Subsidiaries (including the Surviving Corporation and the Company Subsidiaries); or
(ii) under which the Company or any Company Subsidiary has been filed created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness for borrowed money in excess of $50,000,000 (except for such indebtedness between the Company and its Subsidiaries or between such Subsidiaries or guaranties by the Company of indebtedness of the Company and of its Subsidiaries or by any Company Subsidiary of indebtedness of the Company or of another Subsidiary). Each Contract of a type described in clauses (i) and (ii) of this Section 3.18(b); each Contract set forth in Section 3.18(b)(iii) of the Company Disclosure Letter; and each Contract that is required to be filed) filed by the Company as an exhibit a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under promulgated by the Exchange Act, or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange Act;
(ii) any Contract: (A) constituting a Company Employee Agreement under which annual salary or other stated annual cash compensation exceeds $200,000; (B) pursuant to which any of the Tetraphase Companies is or may become obligated to make any severance, termination or similar payment to any Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) above;
(iii) any Contract with any labor union or any collective bargaining agreement or similar Contract for the benefit of any Company Associate(s);
(iv) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software);
(v) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Company;
(vi) any material Contract with any distributor and any material contract with any other reseller or sales representativeSEC, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(vii) any material Contract (other than any purchase order entered into in the ordinary course of business) with sole source or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viii) any Contract that provides for: (A) reimbursement of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate;
(ix) any Contract (A) that restricts the ability of the Tetraphase Companies to compete in any business or with any Person in any geographical area; (B) in which is not terminable by the Company or any Tetraphase the applicable Company has granted development rights, “most favored nation” pricing provisions Subsidiary without penalty or marketing continuing obligations on 90 days’ or distribution rights relating less notice are each referred to any product or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken herein as a whole, as currently conducted;“Company Material Contract.”
(x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into in the ordinary course of business or that do not deviate in any material respect from the standard forms of Contracts previously Made Available by the Company to Parent;
(xi) any Contract providing for any currency hedging;
(xii) any Contract requiring that any of the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2019; (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company); and
(xvii) any Contract, the termination of which would have a Company Material Adverse Effect. The Company has delivered or Made Available (including by filing with the SEC) to Parent an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as of the date of this Agreement.
(bc) Each Company Contract that constitutes a such Company Material Contract is a valid and in full force and effect (except for Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period), and is enforceable in accordance with its terms, subject to: (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”).
(c) Except as set forth in Part 2.10(c) binding agreement of the Company Disclosure Schedule: (i) none of the Tetraphase Companies has violated or breached in any material respectand, or committed any default in any material respect under, any Company Material Contract; (ii) to the knowledge of the Company, no all other Person has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (iii) to the knowledge of the Company, no event has occurredparties thereto, and no circumstance or condition existsis in full force and effect, that (with or without notice or lapse of time) would reasonably be expected to: (A) result in a violation or breach in any material respect of any Company Material Contract; (B) give any Person the right to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received any written notice (Company or the Company Subsidiaries or, to the knowledge of the Company, any other communication) regarding any actual or possible material violation party thereto is in default or breach ofin any respect under the terms of any such agreement, contract, plan, lease, arrangement or material commitment, except for such default underor breach as would not, any individually or in the aggregate, reasonably be expected to have a Company Material ContractAdverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Midamerican Energy Holdings Co /New/), Merger Agreement (Nv Energy, Inc.)
Contracts. (a) Part 2.10(aSection 3.8(a) of the Company Disclosure Schedule identifieslists each Contract of a nature described below, in effect as of the date of this Agreement, to which the Company or any Company Subsidiary is a party (each Company Contract that constitutes a Company Material Contract and which remains in effect as of the date hereof and under which a Tetraphase Company has remaining material rights or obligations. For purposes of this Agreement, each of the following Company Contracts shall be deemed to constitute a “Company Material Major Contract”:):
(i) each agreement with any Contract officer, individual employee or independent contractor on a full-time, part-time, consulting or other basis, including each agreement with respect to employment, deferred compensation, severance, separation, change in effect and which has been filed (control, retention or is required similar arrangements for the provision of services to the Company or any Company Subsidiary, but excluding agreements that are or on the Closing Date will be filed) terminable at will by the Company as an exhibit pursuant or any Company Subsidiary without any Liability to Item 601(b)(10) of Regulation S-K under the Exchange ActCompany or any Company Subsidiary, or that would be required except Liability with respect to be disclosed under Item 404 of Regulation S-K under services rendered before the Exchange Acttermination thereof;
(ii) any Contract: (A) constituting a Company Employee Agreement under which annual salary each collective bargaining agreement or other stated annual cash compensation exceeds $200,000; (B) pursuant to which any of the Tetraphase Companies is or may become obligated to make any severance, termination or similar payment to any Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) above;
(iii) any Contract with any labor union or any collective employee bargaining agreement representative;
(iii) each Contract purporting to limit the freedom of the Business or similar Contract for the benefit of Company or any Company Associate(s)Subsidiary to engage in any line of business or operate in any jurisdiction, including any agreement that contains any exclusivity, non-competition, non-solicitation, or no-hire provisions;
(iv) each material Contract pursuant to which any Intellectual Property Rights contract of the Company or Intellectual Property that has been incorporated into any Company Product and is licensed Subsidiary involving aggregate payments by or to the Company or a relevant Company Subsidiary of more than $1,000,000 in fiscal year 2019 or reasonably expected to involve more than $1,000,000 in fiscal year 2020 or any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software);fiscal year thereafter.
(v) each material Contract pursuant to which pay or receive any royalty or license fee or to license (either as licensor or licensee) any Intellectual Property Rights or (other than any (1) license for Intellectual Property incorporated into embedded in any Company Product are licensed by equipment or fixture, (2) non-exclusive implied license of Intellectual Property or (3) non-exclusive license for the use of any Tetraphase Companycommercially available off-the-shelf Software with annual payments less than $50,000 per year);
(vi) each Contract pursuant to which (1) any third Person creates, develops, or customizes for or on behalf of the Company or any Company Subsidiary any Intellectual Property that is material Contract with to the business of the Company or any distributor and Company Subsidiary or (2) the Company or any material contract with Company Subsidiary creates, develops, or customizes any other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in the ordinary course of businessIntellectual Property for any third Person;
(vii) each Contract under which the Company or any material Contract Company Subsidiary is obligated to repay or has guaranteed any outstanding Indebtedness for borrowed money or remains obligated to lend to or make any investment in (other than any purchase order entered into in the ordinary course form of businessa loan, capital contribution or otherwise) with sole source or single source suppliers to any Tetraphase Company of products or servicesother Person, other than confidentiality the Company or nondisclosure agreements entered into in the ordinary course of businessany Company Subsidiary;
(viii) each Contract involving any Contract that provides for: (A) reimbursement Indebtedness or the imposition of any Encumbrance on any asset of the Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company AssociateSubsidiary;
(ix) any each Contract with a Seller or Affiliate or family member of a Seller or;
(Ax) that restricts each partnership, joint venture, shareholders, or other similar Contract;
(xi) each Contract providing for the ability acquisition or disposition of the Tetraphase Companies to compete in any business or with Person or of any Person in interest in, or material assets properties or rights of, any geographical area; business enterprise that contains ongoing obligations of the Company or any Company Subsidiary;
(Bxii) in each Contract under which the Company or any Tetraphase Company Subsidiary has granted development rightsadvanced or loaned money to any other Person, other than any the Company or any Company Subsidiary;
(xiii) each Contract under which any Seller, the Company, or any Company Subsidiary has a right or obligation to purchase, acquire, sell, or dispose of any Owned Real Property or any part thereof or interest therein;
(xiv) each Real Property Lease;
(xv) each Contract (A) granting any Person the exclusive rights to license, market, distribute, sell or deliver the Company or any Company Subsidiary product or service, (B) requiring the Company or any Company Subsidiary to exclusively sell, lease or distribute products or services of any Person, (C) requiring the Company or any Company Subsidiary to exclusively source materials, products or services, (D) that contains “most favored nation” pricing provisions provisions, or marketing (E) that contains minimum purchase or distribution rights relating minimum sale obligations equal to or in excess of $1,000,000 per year;
(xvi) each Contract that relates to a settlement of any product or product candidate; (C) in Proceeding under which the Company or any Tetraphase Company Subsidiary has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;
(x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into in the ordinary course of business or that do not deviate in any material respect from the standard forms of Contracts previously Made Available by the Company to Parent;
(xi) any Contract providing for any currency hedging;
(xii) any Contract requiring that any of the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration in an amount or having a value continuing Liability in excess of $200,000 in the fiscal year ending December 31, 2019; (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 20201,000,000;
(xvixvii) each Contract between and among the Company and any material of the Company Subsidiaries;
(xviii) each Contract that has with a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company)Governmental Entity; and
(xviixix) any Contract, the termination of which would each Contract with an Independent Distributor or Major Supplier.
(b) Sellers have a Company Material Adverse Effect. The Company has delivered or Made Available (including by filing with the SEC) made available to Parent an accurate a true, correct, and complete copy of each Company Major Contract that constitutes a Company Material Contract as (or, in the case of any oral Major Contract, an accurate summary of the date material terms thereof). With respect to each Major Contract (and with the following assuming that each Consent is obtained, which, for any Consent that is a filing or notice, means the making of this Agreement.
such filing or notice), (bi) Each Company Contract that constitutes a Company Material such Major Contract is valid and in full force and effect (except for Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period), and is enforceable in accordance with its termsterms against the Company that is a party thereto and, subject to: (i) laws of general application relating to bankruptcythe Company’s Knowledge, insolvency and against each other party thereto, except in each case to the relief of debtors; and extent enforceability may be limited by any Enforcement Limitation, (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”).
(c) Except as set forth in Part 2.10(c) of the Company Disclosure Schedule: (i) none of the Tetraphase Companies has violated or breached in any material respectis not and, or committed any default in any material respect under, any Company Material Contract; (ii) to the knowledge of the Company’s Knowledge, no other Person has violated or breached party thereto is in any material respect, or committed any default in any material respect under, any Company Material Contract; breach under such Major Contract and (iii) no party to the knowledge of the Companysuch Major Contract has terminated, no event has occurredmodified, and no circumstance accelerated, or condition exists, that (with canceled such Major Contract or without notice or lapse of time) would reasonably be expected to: (A) result in a violation or breach in any material respect of any Company Material Contract; (B) give any Person the right or Liability thereunder or communicated in writing such party’s desire or intent to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received any written notice (or, to the knowledge of the Company, any other communication) regarding any actual or possible material violation or breach of, or material default under, any Company Material Contractdo so.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (NewAge, Inc.), Merger Agreement (New Age Beverages Corp)
Contracts. (a) Part 2.10(aExcept for this Agreement and the Other Transaction Agreements and except as disclosed on Section 3.10(a) of the Company ITC Disclosure Schedule identifiesLetter, neither ITC, nor any of its Assets, rights, properties or Subsidiaries, as of the date of this Agreementhereof, each Company Contract that constitutes is a Company Material Contract and which remains in effect as of the date hereof and under which a Tetraphase Company has remaining material rights party to or obligations. For purposes of this Agreement, each of the following Company Contracts shall be deemed to constitute a “Company Material Contract”bound by:
(i) any Contract “material contract” (as such term is defined in effect and which has been filed (or is required to be filed) by the Company as an exhibit pursuant to Item item 601(b)(10) of Regulation S-K under the Exchange Act, or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange Act);
(ii) any Contract: (A) constituting a Company Employee Agreement under which annual salary non-competition Contract or other stated annual cash compensation exceeds $200,000; (B) pursuant Contract that purports to limit in any material respect either the type of business in which ITC or any of its Subsidiaries or any of their respective Affiliates may engage or the manner or geographic area in which any of the Tetraphase Companies is or them may become obligated to make any severance, termination or similar payment to any Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest so engage in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) abovebusiness or contains exclusivity or non-solicitation provisions;
(iii) any Contract with any labor union that limits or otherwise restricts the ability of ITC or any collective bargaining agreement of its Subsidiaries to pay dividends or similar Contract for the benefit of any Company Associate(s)make distributions to its shareholders;
(iv) each material Contract pursuant to any Contract, or a series of related Contracts, under which ITC or any Intellectual Property Rights of its Subsidiaries is liable for Indebtedness in excess of $50 million, individually or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software)in the aggregate;
(v) each material any Contract pursuant that relates to collective bargaining or similar labor Contracts which cover any Intellectual Property Rights employees of ITC or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Company;its Affiliates; or
(vi) any material Contract with any distributor partnership, joint venture or similar Contract. All Contracts of the type described in this Section 3.10(a) and any material contract with any other reseller or sales representative, in each case such Contracts that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements may be entered into by ITC or any Subsidiary of ITC after the date hereof and prior to the Effective Time in accordance with Section 4.02 are referred to herein as “ITC Material Contracts”). As of the ordinary course date of business;this Agreement, complete and correct copies (including all material amendments, modifications, extensions or renewals with respect thereto) of all ITC Material Contracts have been provided to Entergy.
(viib) any material Each ITC Material Contract (other than any purchase order entered into in the ordinary course of business) with sole source or single source suppliers to any Tetraphase Company of products or servicesis a legal, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viii) any Contract that provides for: (A) reimbursement of any Company Associate for, or advancement to any Company Associate valid and binding obligation of, legal fees and enforceable against, ITC or any Subsidiary of ITC that is a party thereto, and, to the Knowledge of ITC, each other expenses associated party thereto, and is in full force and effect in accordance with any Legal Proceeding its terms, except for (i) terminations or expirations at the defense thereof; or (B) indemnification of any Company Associate;
(ix) any Contract (A) that restricts the ability end of the Tetraphase Companies to compete in any business or with any Person in any geographical area; (B) in which the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;
(x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into stated term in the ordinary course of business or that do not deviate in any material respect from the standard forms of Contracts previously Made Available by the Company to Parent;
(xi) any Contract providing for any currency hedging;
(xii) any Contract requiring that any of the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2019; (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; consistent with past practice or (Dii) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31such failures to be legal, 2020;
(xvi) any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company); and
(xvii) any Contract, the termination of which would have a Company Material Adverse Effect. The Company has delivered or Made Available (including by filing with the SEC) to Parent an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as of the date of this Agreement.
(b) Each Company Contract that constitutes a Company Material Contract is valid and binding or to be in full force and effect as would not reasonably be expected to have, individually or in the aggregate, an ITC MAE, in each case subject to (except for Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period), and is enforceable in accordance with its terms, subject to: (iA) laws Laws of general application relating to bankruptcy, insolvency and the relief of debtors; insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (iiB) rules of law Law governing equitable remedies of specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”)remedies.
(c) Except as set forth ITC and each of its Subsidiaries which is a party to any ITC Material Contract is in Part 2.10(c) compliance with all terms and requirements of each ITC Material Contract, and no event has occurred that, with notice or the Company Disclosure Schedule: (i) none passage of the Tetraphase Companies has violated or breached in any material respecttime, or committed both, would constitute a breach or default by ITC or any default in of its Subsidiaries under any material respect under, any Company such ITC Material Contract; (ii) , and, to the knowledge Knowledge of the CompanyITC, no other Person party to any ITC Material Contract is in breach or default (nor has violated any event occurred which, with notice or breached in any material respectthe passage of time, or committed both, would constitute such a breach or default) under any default in any material respect under, any Company ITC Material Contract; (iii) to the knowledge , except in each case where such violation, breach, default or event of the Company, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) default would not reasonably be expected to: (A) result to have, individually or in a violation or breach in any material respect of any Company Material Contract; (B) give any Person the right to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancelaggregate, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received any written notice (or, to the knowledge of the Company, any other communication) regarding any actual or possible material violation or breach of, or material default under, any Company Material Contractan ITC MAE.
Appears in 2 contracts
Sources: Merger Agreement (Entergy Corp /De/), Merger Agreement (ITC Holdings Corp.)
Contracts. (a) Part 2.10(a) As of the Company Disclosure Schedule identifies, as of third Business Day prior to the date of this Agreement, each Company Contract that constitutes a Company Material Contract and which remains in effect as the electronic data room set forth on the website of the date hereof and under which a Tetraphase Company has remaining ▇▇▇▇▇▇▇ Corporation contains all material rights or obligations. For purposes Contractual Obligations of this Agreement, each of the following Acquired Companies. Except as disclosed on Section 2.17 of the Disclosure Schedule, no Acquired Company Contracts shall be deemed to constitute a “Company Material Contract”is bound by or party to:
(i) any Contract in effect and which has been filed Contractual Obligation (or is required group of related Contractual Obligations) with a term in excess of six months or involving annual payments to be filed) by or from an Acquired Company in excess of €25,000 over the Company as an exhibit pursuant to Item 601(b)(10) life of Regulation S-K under the Exchange Act, or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange ActContractual Obligation;
(ii) any Contract: Contractual Obligation relating to the acquisition or disposition of (A) constituting a any business of an Acquired Company Employee Agreement under which annual salary (whether by merger, consolidation or other stated annual cash compensation exceeds $200,000; business combination, sale of securities, sale of assets or otherwise) or (B) pursuant to which any of the Tetraphase Companies is or may become obligated to make any severance, termination or similar payment to any Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment (asset other than payments constituting bonuses or commissions paid in the ordinary course Ordinary Course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) aboveBusiness;
(iii) any Contract Contractual Obligation under which an Acquired Company is, or may become, obligated to pay any amount in respect of indemnification obligations, purchase price adjustment or otherwise in connection with any labor union (A) acquisition or any collective bargaining agreement disposition of assets or similar Contract for securities (other than the benefit sale of any Company Associate(sinventory in the Ordinary Course of Business), (B) merger, consolidation or other business combination, or (C) series or group of related transactions or events of the type specified in clauses (A) and (B) above;
(iv) each material Contract pursuant any Contractual Obligation (or group of related Contractual Obligations) under which an Acquired Company has permitted any Asset to which any Intellectual Property Rights or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software)become Encumbered;
(v) each material Contract pursuant any Contractual Obligation relating to which any Intellectual Property Rights confidentiality or Intellectual Property incorporated into any non-competition (whether the Acquired Company Product are licensed by any Tetraphase Companyis subject to or the beneficiary of such obligations);
(vi) any material Contract with Contractual Obligation under which an Acquired Company is, or may become, obligated to incur any distributor and any material contract with any other reseller severance pay or sales representative, in each case special Compensation obligations that provides exclusivity rights to such distributor, reseller would become payable by reason of this Agreement or sales representative, other than confidentiality or nondisclosure agreements entered into in the ordinary course of businessContemplated Transactions;
(vii) any material Contract (other than Contractual Obligation under which an Acquired Company is, or may, have any purchase order entered into in the ordinary course of business) with sole source or single source suppliers Liability to any Tetraphase Company of products investment bank, broker, financial advisor, finder’s agreement or servicesother similar Person (including an obligation to pay any legal, other than confidentiality accounting, brokerage, finder’s, or nondisclosure agreements entered into similar fees or expenses in connection with this agreement or the ordinary course of businessContemplated Transactions);
(viii) any Contract that provides for: (A) reimbursement profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or other plan arrangement or agreement for the benefit of one or more current or former directors, officers, and employees of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereofAcquired Company’s; or (B) indemnification of any Company Associate;and
(ix) any Contract (A) that restricts the ability of the Tetraphase Companies to compete in any business or with any Person in any geographical area; (B) in Contractual Obligation under which the Company or any Tetraphase an Acquired Company has granted development rights, “most favored nation” pricing provisions advanced or marketing or distribution rights relating loaned an amount to any product of its Affiliates or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;
(x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, employees other than Contracts entered into in the ordinary course Ordinary Course of business or that do not deviate in any material respect from the standard forms of Contracts previously Made Available by the Company to Parent;
(xi) any Contract providing for any currency hedging;
(xii) any Contract requiring that any of the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2019; (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company); and
(xvii) any Contract, the termination of which would have a Company Material Adverse Effect. The Company has delivered or Made Available (including by filing with the SEC) to Parent an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as of the date of this AgreementBusiness.
(b) Each Company Contract that constitutes a Company Material Contract is valid and in full force and effect (except for Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period), and is enforceable in accordance with its terms, subject to: (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”).
(c) Except as set forth in Part 2.10(c) of the Company Disclosure Schedule: (i) none of the Tetraphase Companies has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (ii) to the knowledge of the Company, no other Person has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (iii) to the knowledge of the Company, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) would reasonably be expected to: (A) result in a violation or breach in any material respect of any Company Material Contract; (B) give any Person the right to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received any written notice (or, to the knowledge of the Company, any other communication) regarding any actual or possible material violation or breach of, or material default under, any Company Material Contract.
Appears in 1 contract
Sources: Stock Purchase Agreement (Allied Defense Group Inc)
Contracts. (a) Part 2.10(a) As of the Company date hereof, except as set forth in Section 2.10 of the Disclosure Schedule identifiesSchedule, neither of the Acquired Companies is (or had the Pre-Closing Transactions occurred prior to the date hereof, would be) a party to any:
(i) agreement (or group of related written agreements with the same person or entity) for the lease of personal property from or to third parties providing for lease payments, other than agreements that can be terminated by either of the Acquired Companies on 90 or fewer days’ notice without payment by one of the Acquired Companies of any material penalty;
(ii) agreement (or group of related written agreements with the same person or entity) for the purchase or sale of products or the furnishing or receipt of services;
(iii) agreement for capital expenditures, which requires either of the Acquired Companies to make aggregate future payments;
(iv) agreement establishing a partnership or joint venture;
(v) agreement (or group of related written agreements with the same person or entity) under which it has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness for borrowed money (other than intercompany indebtedness that will be eliminated prior to the Closing) or under which it has imposed a Security Interest on any of its material assets, tangible or intangible;
(vi) agreement for the employment in the Business of any individual on a full-time or part-time basis;
(vii) agreement for the sale of any assets or properties of either Acquired Companies, other than agreements for the sale of goods and services in the Ordinary Course of Business and other than pursuant to the Pre-Closing Transactions; and
(viii) agreement for the acquisition by either of the Acquired Companies of any operating business or equity interests of any other person (other than pursuant to the Pre-Closing Transactions).
(b) Parent has made available to Buyers a correct and complete copy of each agreement (as of amended to the date of this Agreement, each Company Contract that constitutes a Company Material Contract and which remains ) listed in effect as Section 2.10 of the date hereof and under which a Tetraphase Company has remaining material rights or obligationsDisclosure Schedule (the “Designated Contracts”). For purposes of this Agreement, each Each Designated Contract listed in Schedule I of the following Pre-Closing Transactions is a valid, binding and enforceable obligation of the Acquired Company Contracts shall and, to Parent’s knowledge, of each other party thereto (except as the foregoing may be deemed limited by the Bankruptcy and Equity Exception), and there exists no defaults of the Acquired Company or, to constitute a “Company Material Contract”:
(i) Parent’s knowledge, any Contract in effect and which has been filed (or is required other party thereto, except for any such failures to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Actvalid, binding and enforceable or defaults that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange Act;
(ii) any Contract: (A) constituting a Company Employee Agreement under which annual salary or other stated annual cash compensation exceeds $200,000; (B) pursuant to which any of the Tetraphase Companies is or may become obligated to make any severance, termination or similar payment to any Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) above;
(iii) any Contract with any labor union or any collective bargaining agreement or similar Contract for the benefit of any Company Associate(s);
(iv) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software);
(v) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Company;
(vi) any material Contract with any distributor and any material contract with any other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(vii) any material Contract (other than any purchase order entered into in the ordinary course of business) with sole source or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viii) any Contract that provides for: (A) reimbursement of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate;
(ix) any Contract (A) that restricts the ability of the Tetraphase Companies to compete in any business or with any Person in any geographical area; (B) in which the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would not reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as result in a whole, as currently conducted;
(x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into in the ordinary course of business or that do not deviate in any material respect from the standard forms of Contracts previously Made Available by the Company to Parent;
(xi) any Contract providing for any currency hedging;
(xii) any Contract requiring that any of the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2019; (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company); and
(xvii) any Contract, the termination of which would have a Company Business Material Adverse Effect. The Company has delivered To Parent’s knowledge, there are no material disputes pending or Made Available (including by filing with the SEC) to Parent an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as of the date of this Agreement.
(b) Each Company Contract that constitutes a Company Material Contract is valid and in full force and effect (except for Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period), and is enforceable in accordance with its terms, subject to: (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”).
(c) Except as set forth in Part 2.10(c) of the Company Disclosure Schedule: (i) none of the Tetraphase Companies has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (ii) to the knowledge of the Company, no other Person has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (iii) to the knowledge of the Company, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) would reasonably be expected to: (A) result in a violation or breach in any material respect of any Company Material Contract; (B) give any Person the right to declare a default in any material respect threatened under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received any written notice (or, to the knowledge of the Company, any other communication) regarding any actual or possible material violation or breach of, or material default under, any Company Material Designated Contract.
Appears in 1 contract
Contracts. (a) Part 2.10(a) of the Company Disclosure Schedule identifies, as As of the date of this Agreement, each Company Contract that constitutes neither GeoEye nor any GeoEye Subsidiary is a Company Material Contract and which remains in effect as of the date hereof and under which a Tetraphase Company has remaining material rights or obligations. For purposes of this Agreement, each of the following Company Contracts shall be deemed party to constitute a “Company Material Contract”:
(i) any Contract in effect and which has been filed (or is required to be filed) filed by the Company GeoEye as an exhibit a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Exchange ActSecurities Act (a “Filed GeoEye Contract”) that has not been so filed, and as of the date hereof, no such Contract has been amended or modified since the date filed, other than pursuant to an amendment or modification filed, or that would be which is not required to be disclosed under filed, pursuant to Item 404 601(b)(10) of Regulation S-K under the Exchange Securities Act;.
(iib) any Contract: (ASection 4.14(b) constituting a Company Employee Agreement under which annual salary or other stated annual cash compensation exceeds $200,000; (B) pursuant to which any of the Tetraphase Companies is or may become obligated to make any severanceGeoEye Disclosure Letter sets forth, termination or similar payment to any Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) above;
(iii) any Contract with any labor union or any collective bargaining agreement or similar Contract for the benefit of any Company Associate(s);
(iv) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software);
(v) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Company;
(vi) any material Contract with any distributor and any material contract with any other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(vii) any material Contract (other than any purchase order entered into in the ordinary course of business) with sole source or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viii) any Contract that provides for: (A) reimbursement of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate;
(ix) any Contract (A) that restricts the ability of the Tetraphase Companies to compete in any business or with any Person in any geographical area; (B) in which the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;
(x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into in the ordinary course of business or that do not deviate in any material respect from the standard forms of Contracts previously Made Available by the Company to Parent;
(xi) any Contract providing for any currency hedging;
(xii) any Contract requiring that any of the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2019; (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company); and
(xvii) any Contract, the termination of which would have a Company Material Adverse Effect. The Company has delivered or Made Available (including by filing with the SEC) to Parent an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as of the date of this Agreement.
(b) Each Company Contract that constitutes , a Company Material Contract is valid true and in full force and effect (except for Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period), and is enforceable in accordance with its terms, subject to: complete list of (i) laws each non-competition Contract or any other Contract containing terms that expressly (A) limit or otherwise restrict GeoEye or the GeoEye Subsidiaries or (B) to the Knowledge of general application relating GeoEye, would, after the Effective Time, by its terms expressly limit or otherwise restrict the Combined Company from, in the case of either (A) or (B), engaging or competing in any line of business or in any geographic area, in a manner that would be reasonably likely to bankruptcybe material, insolvency in the case of (A), to GeoEye and the relief GeoEye Subsidiaries, taken as a whole, or in the case of debtors; and (B), to the Combined Company, taken as a whole, (ii) rules each loan and credit agreement, note, debenture, bond, indenture or other similar agreement pursuant to which any Indebtedness of law governing specific performanceGeoEye or any of the GeoEye Subsidiaries is outstanding or may be incurred, injunctive relief other than any such agreement between or among GeoEye and the wholly owned GeoEye Subsidiaries, (iii) each partnership, joint venture or similar agreement or understanding to which GeoEye or any of the GeoEye Subsidiaries is a party relating to the formation, creation, operation, management or control of any partnership or joint venture material to GeoEye and the GeoEye Subsidiaries, taken as a whole, (iv) Contracts pursuant to which GeoEye or a GeoEye Subsidiary pays or is paid $5,000,000 or more in any 12-month period and (iv) Contracts pursuant to which GeoEye or a GeoEye Subsidiary (A) is granted or obtains or agrees to obtain any right to use any material Intellectual Property (other equitable remedies than rights to use readily commercially available Software), (B) permits or agrees to permit any other Person, to use, enforce, or register any material Intellectual Property, or (C) following the Closing, would be required to license, assign, or make available to any other Person material Intellectual Property owned by DigitalGlobe or its Affiliates immediately prior to the Closing, except in the case of (B) or (C), with respect to satellite-generated images sold as part of GeoEye's database in the ordinary course of business. Each agreement, understanding or undertaking of the type described in this Section 4.14(b) and each Filed GeoEye Contract is referred to herein as a “Enforceability ExceptionsGeoEye Material Contract”).
(c) Except as set forth for matters which, individually or in Part 2.10(c) the aggregate, have not had and would not reasonably be expected to have a GeoEye Material Adverse Effect and except for terminations or expirations at the end of the Company Disclosure Schedule: stated term after the date hereof, (i) none each GeoEye Material Contract (including, for purposes of this Section 4.14(c), any Contract entered into after the date of this Agreement that would have been a GeoEye Material Contract if such Contract existed on the date of this Agreement) is a valid, binding and legally enforceable obligation of GeoEye or a GeoEye Subsidiary, as the case may be, and, to the Knowledge of GeoEye, of the Tetraphase Companies has violated other parties thereto, except, in each case, as enforcement may be limited by bankruptcy, insolvency, reorganization or breached in any material respectsimilar Laws affecting creditors’ rights generally and by general principles of equity, or committed any default in any material respect under, any Company Material Contract; (ii) to the knowledge of the Company, no other Person has violated or breached each such GeoEye Material Contract is in any material respect, or committed any default in any material respect under, any Company Material Contract; full force and effect and (iii) to the knowledge none of GeoEye or any of the Company, no event has occurred, and no circumstance or condition exists, that GeoEye Subsidiaries is (with or without notice or lapse of time, or both) would reasonably be expected to: (A) result in a violation breach or breach in any material respect of any Company Material Contract; (B) give any Person the right to declare a default in any material respect under any Company such GeoEye Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received any written notice (orContract and, to the knowledge Knowledge of the CompanyGeoEye, no other party to any other communication) regarding any actual such GeoEye Material Contract is (with or possible material violation without notice or breach oflapse of time, or material both) in breach or default under, any Company Material Contractthereunder.
Appears in 1 contract
Sources: Merger Agreement (Digitalglobe Inc)
Contracts. (a) Part 2.10(a2.9(a) of the Company Disclosure Schedule identifies, as of the date of this Agreement, identifies each Company Contract that constitutes a Company Material Contract and which remains in effect as of the date hereof and under which a Tetraphase Company has remaining material rights or obligationsContract. For purposes of this Agreement, each of the following Company Contracts shall be deemed to constitute a “Company Material Contract”:
(i) any Company Contract constituting a Company Employee Agreement pursuant to which any of the Acquired Corporations is or may become obligated to (A) make any severance, termination, tax gross-up or similar payment to any current or former Company Associate or any spouse or heir of any current or former Company Associate except for severance, termination or similar payments required by applicable Legal Requirements that does not exceed $75,000 per beneficiary, (B) make any bonus, deferred compensation or similar payment (other than payments constituting base salary or commissions paid in the ordinary course of business) in excess of $75,000 to any current or former Company Associate or (C) grant or accelerate the vesting of, or otherwise modify, any Company Equity Award other than accelerated vesting provided in Company Equity Plans;
(ii) any Company Contract (A) limiting the freedom or right of any Acquired Corporation to engage in any line of business, to make use of any material Company IP or to compete with any other Person in any location or line of business, including any settlement agreement, cross license agreement, concurrent use agreement, consent to use agreement or standstill agreement or (B) containing any “most favored nations” terms and conditions (including with respect to pricing) granted by any of the Acquired Corporations or exclusivity obligations or restrictions or otherwise materially limiting the freedom or right of any Acquired Corporation to sell, distribute or manufacture any products or service or any technology or other assets to or for any other Person;
(iii) any Company Contract that requires by its terms the payment or delivery of cash or other consideration by the Acquired Corporations in an amount having an expected value in excess of $150,000 in any fiscal year of the Company (each such obligation, a “Minimum Payment Obligation”) and cannot be cancelled by the Acquired Corporations without penalty or further payment without more than ninety (90) days’ notice (other than payments for services rendered to the date);
(iv) any Company Contract relating to Indebtedness in excess of $150,000 (whether incurred, assumed, guaranteed or secured by any asset) of the Acquired Corporations, other than any Indebtedness between or among the Acquired Corporations;
(v) any Company Contract that creates or grants an Encumbrance on material properties or other material assets of the Company or its Subsidiary, other than Permitted Encumbrances;
(vi) any Company Contract or arrangement with any Person constituting (A) a joint venture, partnership, collaboration or limited liability corporation or (B) a development, marketing or distribution arrangement;
(vii) any Company Contract that requires or expressly permits an Acquired Corporation, or any successor, to, or acquirer of an Acquired Corporation, to make any payment to another person as a result of a change of control of such Acquired Corporation (a “Change of Control Payment”) or gives another Person a right to receive or elect to receive a Change of Control Payment;
(viii) any Company Contract that prohibits the payment of dividends or distributions in respect of the capital stock of any of the Acquired Corporations, prohibits the pledging of the capital stock or other equity interests of the Acquired Corporations or prohibits the issuance of any guaranty by the Acquired Corporations;
(ix) any Company Contract that involves the acquisition from another Person or disposition to another Person, directly or indirectly (by merger or otherwise), of any material asset, a business, division or Subsidiary that (A) was entered into since January 31, 2009 and was for aggregate consideration under such Company Contract (or series of related Contracts) in excess of $3,000,000 or (B) contains obligations (including indemnification, earn-out or other contingent obligations) that are still in effect and could result in material payments by any Acquired Corporation;
(x) any license agreements pursuant to which any of the Acquired Corporations licenses in any Intellectual Property Right or licenses out any Intellectual Property Right owned by the Acquired Corporations (other than license agreements for commercially available software on standard terms);
(xi) any Company Lease; and
(xii) any other Company Contract that is currently in effect and has been filed (or is required to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Act, Securities Act or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange Securities Act;.
(iib) any Contract: (A) constituting a Company Employee Agreement under which annual salary or other stated annual cash compensation exceeds $200,000; (B) pursuant to which any As of the Tetraphase Companies is or may become obligated to make any severancedate of this Agreement, termination or similar payment to any the Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, has either delivered or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) above;
(iii) any Contract with any labor union or any collective bargaining agreement or similar Contract for the benefit of any Company Associate(s);
(iv) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially made available third party software);
(v) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Company;
(vi) any material Contract with any distributor and any material contract with any other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(vii) any material Contract (other than any purchase order entered into in the ordinary course of business) with sole source or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viii) any Contract that provides for: (A) reimbursement of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate;
(ix) any Contract (A) that restricts the ability of the Tetraphase Companies to compete in any business or with any Person in any geographical area; (B) in which the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;
(x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into in the ordinary course of business or that do not deviate in any material respect from the standard forms of Contracts previously Made Available by the Company to Parent;
(xi) any Contract providing for any currency hedging;
(xii) any Contract requiring that any of the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2019; (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company); and
(xvii) any Contract, the termination of which would have a Company Material Adverse Effect. The Company has delivered or Made Available (including by filing with the SEC) to Parent or Parent’s Representatives an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as or has publicly made available such Material Contract in the Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) database of the date SEC, except, in each case, for the Company Leases set forth in Part 2.9(b) of this Agreement.
(bthe Company Disclosure Schedule. Except as set forth on Part 2.9(b) Each of the Company Contract that constitutes a Company Disclosure Schedule, neither the Acquired Corporations nor, to the knowledge of the Acquired Corporations, the other party is in violation or breach of or default under any Material Contract is and, neither the Acquired Corporations, or to the knowledge of the Acquired Corporations, the other party has taken or failed to take any action that with or without notice, lapse of time or both would constitute a violation or breach of or material default under any Material Contract. Each Material Contract is, with respect to the Acquired Corporations and, to the knowledge of the Acquired Corporations, the other party, a valid agreement, binding, and in full force and effect (except for Contracts that are expiredeffect. To the knowledge of the Acquired Corporations, terminated, and/or not renewed during the Pre-Closing Period), and each Material Contract is enforceable by the applicable Acquired Corporation in accordance with its terms, subject to: to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; , and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies remedies. Except as set forth on Part 2.9(b) of the Company Disclosure Schedule, no Acquired Corporation has received any written or, to the knowledge of the Acquired Corporations, oral notice regarding any violation or breach or default under any Material Contract that has not since been cured. The Acquired Corporations have not waived in writing any material rights under any Material Contract. The Company has not received any notice in writing from any Person that such Person intends to terminate, or not renew, any Material Contract. There are no renegotiations of, or attempts to renegotiate, any Material Contract with any Person and no party to a Material Contract has made written demand for such renegotiation or, to the knowledge of the Acquired Corporations, no Person (including the “Enforceability Exceptions”)Acquired Corporations) has any intention to commence any such renegotiation.
(c) Except as set forth in Part 2.10(c2.9(c) of the Company Disclosure Schedule: , the Acquired Corporations have paid all Minimum Payment Obligations required to be paid on or prior to the date of this Agreement.
(id) none of the Tetraphase Companies has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (ii) to To the knowledge of the CompanyAcquired Corporations, no other Person has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (iii) to the knowledge none of the CompanyAcquired Corporations is, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse as of time) would reasonably be expected to: (A) result in a violation or breach in any material respect of any Company Material Contract; (B) give any Person the right to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none a party to a Contract with a Specially Designated National or Blocked Person as defined by the Office of Foreign Asset Control of the Tetraphase Companies has received any written notice (or, to the knowledge United States Department of the Company, any other communication) regarding any actual or possible material violation or breach of, or material default under, any Company Material ContractTreasury.
Appears in 1 contract
Contracts. (a) Part 2.10(aSet forth in Section 3.13(a) of the Company Disclosure Schedule identifies, as is a list of the date of this Agreement, each Company Contract that constitutes a Company Material Contract and which remains in effect as of the date hereof and under which a Tetraphase Company has remaining material rights or obligations. For purposes of this Agreement, each of the following Company Contracts shall be deemed to constitute a “Company Material Contract”:
(i) any Contract in effect and which has been filed (or is required to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Act, or that would be required to be disclosed filed as an exhibit to a Registration Statement on Form S-1 under Item 404 of Regulation Sthe Securities Act or an Annual Report on Form 10-K under the Exchange Act;
(iiAct if such registration statement or report was filed by the Company with the SEC on the date of this Agreement and which has not previously been filed as an exhibit to the Filed Company SEC Documents. Also set forth in Section 3.13(a) any Contract: (A) constituting a Company Employee Agreement under which annual salary or other stated annual cash compensation exceeds $200,000; (B) pursuant to which any of the Tetraphase Companies Company Disclosure Schedule is or may become obligated to make any severance, termination or similar payment to any Company Associate or any spouse, heir or Representative a list of any Company Associate; (C) pursuant to which any each of the Tetraphase Companies is or may become obligated following to make any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) above;
(iii) any Contract with any labor union or any collective bargaining agreement or similar Contract for the benefit of any Company Associate(s);
(iv) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software);
(v) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Company;
(vi) any material Contract with any distributor and any material contract with any other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(vii) any material Contract (other than any purchase order entered into in the ordinary course of business) with sole source or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viii) any Contract that provides for: (A) reimbursement of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate;
(ix) any Contract (A) that restricts the ability of the Tetraphase Companies to compete in any business or with any Person in any geographical area; (B) in which the Company or any Tetraphase of its Subsidiaries is a party which has not previously been filed as an exhibit to the Filed Company has granted development rightsSEC Documents any:
(i) Contract that contains a provision capable of being invoked that (A) is not terminable for convenience upon reasonable notice at no charge that purports to materially limit, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidate; (C) in which curtail, restrict the ability of the Company or any Tetraphase of its existing or future Subsidiaries or Affiliates to compete in any geographic area or line of business or restrict the Persons with whom it and existing or future Subsidiaries or Affiliates can compete or to whom it or its existing or future Subsidiaries or Affiliates can sell products or deliver services, (B) is not terminable for convenience upon reasonable notice at no charge that purports to grant any exclusivity, right of first refusal, right of first negotiation, most favored nation status or similar rights that materially restrict the Company has agreed to purchase a minimum quantity or any of goods relating to any product or product candidate; its Subsidiaries, or (DC) which provides for “exclusivity” imposes any liquidated damages or penalty clauses on the Company or any similar requirement in favor of its Subsidiaries, offsets from, or credits to, any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;
other Person (x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts service level credits provided pursuant to agreements with customers entered into in the ordinary course of business consistent with past practice);
(ii) Contract with any director, officer or that do not deviate in any material respect from other Affiliate of the standard forms of Company other than Contracts previously Made Available under which the Company and its Subsidiaries have no further liabilities or obligations and no continuing rights;
(iii) loan or credit agreement, mortgage, indenture, note or other Contract or instrument evidencing indebtedness for borrowed money by the Company or any of its Subsidiaries or any Contract or instrument pursuant to Parentwhich indebtedness for borrowed money may be incurred or is guaranteed by the Company or any of its Subsidiaries or by which they may be obligated for the liabilities of another person;
(iv) financial derivatives master agreement or confirmation or other agreement evidencing financial hedging or similar trading activities, other than Contracts relating to currency ▇▇▇▇▇▇ or derivatives entered into in the ordinary course of business consistent with past practice;
(v) voting agreement;
(vi) except for Contracts listed in clauses (iii) and (iv) of Section 3.3 of the Company Disclosure Schedule, mortgage, pledge, security agreement, deed of trust or other Contract granting a Lien on any material property or assets of the Company or any of its Subsidiaries;
(vii) Contract with a supplier or provider of products or services that has required payments by the Company or any of its Subsidiaries of consideration (whether or not measured in cash) in the fiscal year 2007 or that is reasonably likely, based on the Company’s past experience, to require such payment of consideration in fiscal year 2008 (whether or not measured in cash) of greater than $500,000 but excluding any Contract that requires payment by the Company or any of its Subsidiaries on a time and materials basis;
(viii) Contract with a top thirty (30) customer of the Company measured by operating revenue received by the Company and its Subsidiaries during the eighteen (18) month period prior to the date hereof, including Contracts with any such customer involving software license, maintenance and/or services;
(ix) Contract which makes up the top ten (10) services agreement (excluding any fixed price services agreement) of the Company measured by operating revenue received by the Company and its Subsidiaries during the eighteen (18) month period prior to the date hereof;
(x) Contract which makes up the top ten (10) fixed price services agreement (excluding any services agreement required to be listed pursuant to Section 3.13(a)(ix)) of the Company and its Subsidiaries) of the Company measured by operating revenue received by the Company and its Subsidiaries during the eighteen (18) month period prior to the date hereof;
(xi) any Contract providing which makes up the top eighty-five percent (85%) of all active subscription agreements for any currency hedgingthe Company’s Freight Matrix products measured by revenue received by the Company and its Subsidiaries during the eighteen (18) month period prior to the date hereof;
(xii) any Contract requiring that any of the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal “standstill” or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transactionagreement restricting the Company;
(xiii) agreement containing a provision capable of being invoked which relates to (A) the granting to the Company or any Contract providing of its Subsidiaries of any license in or to any Intellectual Property owned by a third party that is used in any current standard or other product of the Company made generally available by the Company or is otherwise material to the Company, or (B) the granting by the Company or any of its Subsidiaries of any license to a third party in or to any Intellectual Property that are material to the Company, (except, in the case of each of clause (A) and clause (B), for any (1) licenses for commercial off-the-shelf software, (2) licenses with terms of use or service posted on a web site, (3) licenses for third party software generally available to the lease public, and (4) non-negotiated licenses of third party Intellectual Property that is embedded in equipment or sublease fixtures and are used by the Company or any of Tetraphase Leased Real Propertyits Subsidiaries for internal purposes only; and, in the case of clause (B), non-exclusive licenses to customers of the Company and its Subsidiaries in the normal and ordinary course of the day-to-day business of the Company and its Subsidiaries consistent with past practice);
(xiv) any Contract agreement granting by the Company or any of its Subsidiaries any license to a third party to use any source code that is a Government Contractpart of the Company Intellectual Property (except source code escrow arrangements for the benefit of customers and related agreements with customers of the Company and its Subsidiaries in the normal and ordinary course of the day-to-day business of the Company and its Subsidiaries consistent with past practice;
(xv) any Contractreseller, not covered by another clause of this Section 2.10(a)distribution, that: (A) involved alliance, collaboration, joint marketing or similar agreements that are material to the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2019; (B) requires by Company and its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020Subsidiaries;
(xvi) Contract (1) providing for (or imposing any material Contract that ongoing indemnification or other obligations of the Company or any of its Subsidiaries in connection with) the disposition or acquisition by the Company or any of its Subsidiaries of (A) any corporation, partnership or other entity or business or (B) any material amount of assets or rights outside the ordinary course of business consistent with past practice or (2) pursuant to which the Company or any of its Subsidiaries has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty any material ownership interest in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (any other person or other business enterprise, other than confidentiality contracts or nondisclosure agreements entered into by any Tetraphase Company); andunder which the Company and its Subsidiaries have no further liabilities or obligations and no continuing rights;
(xvii) any Contractsettlement agreement, other than (A) releases immaterial in nature or amount entered into with former employees or independent contractors of the termination Company in the ordinary course of which would have a Company Material Adverse Effect. The Company has delivered or Made Available (including by filing business consistent with past practice in connection with the SECroutine cessation of such employee’s or independent contractor’s employment with the Company, (B) settlement agreements for cash only (which has been paid) and does not exceed $100,000 as to Parent an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as of such settlement or (C) settlement agreements entered into more than three years prior to the date of this Agreement.Agreement under which none of the Company or its Subsidiaries have any continuing obligations, liabilities, or rights (excluding releases); or
(bxviii) Each Company Contract that constitutes a Company Material Contract is valid and in full force and effect commitment or agreement to enter into any of the foregoing (except for the Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period), and is enforceable in accordance with its terms, subject to: (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”).
(c) Except as set forth in Part 2.10(cdocuments required to be listed on Section 3.13(a) of the Company Disclosure Schedule: (i) none , together with any and all other Contracts of such type entered into in accordance with Section 5.2 and the Tetraphase Companies has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (ii) Contracts filed as exhibits to the knowledge of the Filed Company, no other Person has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (iii) to the knowledge of the Company, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) would reasonably be expected to: (A) result in a violation or breach in any material respect of any Company Material Contract; (B) give any Person the right to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received any written notice (or, to the knowledge of the Company, any other communication) regarding any actual or possible material violation or breach of, or material default under, any Company Material Contract.
Appears in 1 contract
Contracts. (a) Part 2.10(aSCHEDULE 5.18(a) of the Company Disclosure Schedule identifies, as of the date of this Agreement, sets forth each Company Contract that constitutes a Company Material Contract and which remains in effect as of the date hereof and under which a Tetraphase Company has remaining material rights or obligations. For purposes of this Agreement, each of the following Company Contracts shall be deemed to constitute a “Company Material Contract”:
(i) any Contract in effect and which has been filed (or is required to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Act, or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange Act;
(ii) any Contract: (A) constituting a Company Employee Agreement under which annual salary or other stated annual cash compensation exceeds $200,000; (B) pursuant to which any of the Tetraphase Companies is or may become obligated to make any severance, termination or similar payment to any Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right Contracts evidencing loans or other equity interest in any extensions of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) above;
(iii) any Contract with any labor union credit, deposit liabilities, purchases of federal funds, Federal Home Loan Bank or any collective bargaining agreement or similar Contract for the benefit of any Company Associate(s);
(iv) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property that has been incorporated into any Company Product Federal Reserve Bank advances and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software);
(v) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Company;
(vi) any material Contract with any distributor and any material contract with any other reseller or sales representativetrade payables, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(vii) any material Contract (other than any purchase order entered into in the ordinary course of business) with sole source or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viii) any Contract that provides for: (A) reimbursement of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate;
(ix) any Contract (A) that restricts the ability of the Tetraphase Companies to compete in any business or with any Person in any geographical area; (B) in which the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;
(x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into in the ordinary course of business consistent with past practices) to which FirstBancorporation or any Subsidiary is a party or by which it or its Assets are bound that do (i) is not deviate terminable in writing without penalty on 30 days' notice or less and involves an annual obligation to or by FirstBancorporation or any Subsidiary exceeding $10,000, (ii) relates to the borrowing of money by FirstBancorporation or any Subsidiary or the guarantee by FirstBancorporation or any Subsidiary of any obligation for borrowed money, (iii) is a lease of Real Property by FirstBancorporation or a Subsidiary, or (iv) is otherwise material to FirstBancorporation's or any Subsidiary's business or its Assets (other than documentation regarding lending transactions) (such Contracts set forth on SCHEDULE 5.18(a) being referred to herein as the "MATERIAL CONTRACTS"). With respect to each Material Contract, except as noted on SCHEDULE 5.18(a), (i) such Material Contract is in full force and effect; (ii) no party thereto is in Default thereunder; (iii) no party thereto has repudiated or waived any material provision thereof; and (iv) a complete copy thereof, including all amendments thereto, has been delivered to FNC. Except as noted on SCHEDULE 5.18(a), with respect from the standard forms of Contracts previously Made Available by the Company to Parent;
(xi) any Material Contract providing for any currency hedging;
(xii) any Contract requiring that under which FirstBancorporation or any of the Tetraphase Companies give Subsidiaries is indebted for money borrowed, such indebtedness is prepayable at any written notice time by FirstBancorporation or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposalthe Subsidiary, or prior to entering into any discussionsas the case may be, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2019; (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company); and
(xvii) any Contract, the termination of which would have a Company Material Adverse Effect. The Company has delivered or Made Available (including by filing with the SEC) to Parent an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as of the date of this Agreementpremium.
(b) Each Company Contract that constitutes a Company SCHEDULE 5.18(b) sets forth each Material Contract to which FirstBancorporation or any of the Subsidiaries is valid and in full force and effect (except for Contracts that a party or by which it or its Assets are expiredbound, terminated, and/or not renewed during the Pre-Closing Period), and is enforceable in accordance with its terms, subject to: terms of which (i) laws prevent or restrict the assignment of general application relating such Material Contract by FirstBancorporation or any Subsidiary, and define assignment to bankruptcyinclude a change in control of FirstBancorporation or any Subsidiary, insolvency and the relief merger or consolidation of debtors; and FirstBancorporation or any Subsidiary with another entity or other similar dispositions of FirstBancorporation or any Subsidiary, (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (will be or are likely to be violated by the “Enforceability Exceptions”).
(c) Except as set forth in Part 2.10(c) consummation of the Company Disclosure Schedule: (i) none of the Tetraphase Companies has violated or breached in any material respecttransactions contemplated herein, or committed any default in any material respect under, any Company Material Contract; (ii) to the knowledge of the Company, no other Person has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (iii) otherwise make the Consent of one or more other parties to such Material Contract necessary or desirable in connection with the knowledge of the Company, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) would reasonably be expected to: (A) result in a violation or breach in any material respect of any Company Material Contract; (B) give any Person the right to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received any written notice (or, to the knowledge of the Company, any other communication) regarding any actual or possible material violation or breach of, or material default under, any Company Material Contracttransactions contemplated herein.
Appears in 1 contract
Contracts. (a) Part 2.10(a) For purposes of this Agreement, a “Material Contract” means each of the following types of Contracts to which any Acquired Company Disclosure Schedule identifies, is a party or by which any of the Acquired Companies or any of their respective assets are bound as of the date of this Agreement, each Company Contract that constitutes a Company Material Contract and which remains in effect as of the date hereof and under which a Tetraphase Company has remaining material rights or obligations. For purposes of this Agreement, each of the following Company Contracts shall be deemed to constitute a “Company Material Contract”:
(i) any Contract constituting a Company Employee Agreement that is not terminable at will with any Company Associate whose annual cash compensation for 2017 is expected to exceed $150,000 and pursuant to which any of the Acquired Companies is or may become obligated to: (A) make any severance or termination cash payments that would exceed $100,000 or Tax gross-up payment, except for severance, termination or similar payments required by applicable Legal Requirements; (B) make any retention or change in control bonus or deferred compensation payment; or (C) grant or accelerate the vesting of, or otherwise modify, any Company Stock Option or Company Restricted Stock Unit Award other than accelerated vesting provided in the Company Equity Plan;
(ii) any collective bargaining, union, works council or similar employee representative body or similar Contract;
(iii) any Contract that provides for: (A) reimbursement of any Company Associate for, or advancement to any Company Associate of, material legal fees or other material expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate other than Contracts entered into on substantially the same form as each Acquired Company’s standard forms made available to Parent, and in each case as would be material to the Company and its Subsidiaries, taken as a whole;
(iv) any Contract (other than any Real Property Lease) containing any material warranty, guaranty or indemnity obligations, other than Contracts described above in Section 3.11(a)(iii), Inbound Licenses, Outbound Licenses and Contracts for the sale of Company products or provision of Company services;
(v) any Contract imposing any material restriction on the right or ability of any Acquired Company, or that by its terms purports to impose after the Effective Time, any material restriction on the right or ability of the Surviving Corporation, Parent or any of their respective Affiliates: (A) to compete with any Person or in any geographic region or to engage in any line of business; (B) to acquire any product or other asset or services from any Person; (C) to research, develop, make, use, sell, supply, distribute, offer, license, support, service or commercialize any Company product or technology to or for any other Person; or (D) to research, develop, make, use, sell, supply, distribute, offer, license, transfer or commercialize of any material Company Owned IP, other than (1) non-exclusive outbound licenses entered into in the ordinary course of business consistent with past practice, (2) the Outbound Licenses, or (3) Contracts that may be cancelled without material liability to the Company or its Subsidiaries upon notice of 45 days or less;
(vi) any Contract granting to any Person (other than the Company or any other Acquired Company) any “most favored nation” term, exclusivity right or obligation, right of first refusal or right of first offer or imposing on any Acquired Company any material minimum purchase or volume commitment;
(vii) any Contract relating to the lease or sublease of Leased Real Property, which is required to be set forth on Part 3.9(b) of the Company Disclosure Schedule (the “Real Property Leases”);
(viii) any Contract (other than any Real Property Lease) that contemplates or involves the payment or delivery of cash or other consideration (by or to any Acquired Company) in an amount or having a value in excess of $250,000 for the fiscal year ended December 31, 2016 or expected to be in excess of $250,000 for the current fiscal year;
(ix) any Contract (other than any Real Property Lease) that involves the performance of services (by or for any Acquired Company) in an amount or having a value in excess of $250,000 for the fiscal year ended December 31, 2016, or expected to be in excess of $250,000 for the current fiscal year, which is not cancelable or terminable without penalty or payment on less than thirty (30) days’ notice;
(x) any Contract relating to Debt (whether incurred, assumed, guaranteed or secured by any asset), excluding individual purchase orders that constitute trade payables, in excess of $250,000 individually;
(xi) any Contract forming, creating, operating, managing or controlling a joint venture, joint development or similar arrangement or partnership or forming an entity for the purposes of providing for a profit sharing arrangement;
(xii) any Contract pursuant to which any Person has the right to acquire any assets of any Acquired Company, other than Contracts for the sale of Company products or provision of Company services in the ordinary course of business;
(xiii) any Contract that contains a put, call or similar right pursuant to which any Acquired Company would be required to purchase or sell, as applicable, any equity interests of any Person;
(xiv) any Contract (other than any Real Property Lease) that requires an Acquired Company, or any successor, to, or acquirer of an Acquired Company, to make any material payment to another Person as a result of a change of control of such Acquired Company, gives another Person a right to receive or elect to receive such material payment, or is subject to material modification or termination as a result of a change of control of any Acquired Company;
(xv) any Contract with a Governmental Body or ICANN;
(xvi) the registrar-registry agreements for the top twenty (20) top level domains offered by the ▇▇▇▇.▇▇▇ registrar (based on the amount of domains under management);
(xvii) any Contract relating to any currency, interest rate or hedging arrangement;
(xviii) any Contract that provides for payments by or to any Acquired Company between any Acquired Company and any stockholder holding five percent (5%) or more of any class of outstanding equity securities of the Company or, to the Company’s knowledge, any Affiliate of such Person; and
(xix) any other Contract that is currently in effect and which has been filed (or is required to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Act, or that would be required to be disclosed under Securities Act (other than those agreements and arrangements described in Item 404 601(b)(10)(iii) of Regulation S-K under the Exchange Securities Act;
(ii) any Contract: (A) constituting a Company Employee Agreement under which annual salary or other stated annual cash compensation exceeds $200,000; (B) pursuant to which any of the Tetraphase Companies is or may become obligated to make any severance, termination or similar payment to any Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) above;
(iii) any Contract with any labor union or any collective bargaining agreement or similar Contract for the benefit of any Company Associate(s);
(iv) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software);
(v) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Company;
(vi) any material Contract with any distributor and any material contract with any other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(vii) any material Contract (other than any purchase order entered into in the ordinary course of business) with sole source or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viii) any Contract that provides for: (A) reimbursement of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate;
(ix) any Contract (A) that restricts the ability of the Tetraphase Companies to compete in any business or with any Person in any geographical area; (B) in which the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;
(x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into in the ordinary course of business or that do not deviate in any material respect from the standard forms of Contracts previously Made Available by the Company to Parent;
(xi) any Contract providing for any currency hedging;
(xii) any Contract requiring that any of the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2019; (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company); and
(xvii) any Contract, the termination of which would have a Company Material Adverse Effect. The Company has delivered or Made Available (including by filing with the SEC) to Parent an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as of the date of this Agreement.
(b) Each Company Contract that constitutes a Company Material Contract is valid and in full force and effect (except for Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period), and is enforceable in accordance with its terms, subject to: (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”).
(c) Except as set forth in Part 2.10(c3.11(a) of the Company Disclosure Schedule: (i) none Schedule sets forth a true and complete list as of the Tetraphase Companies has violated or breached in any material respect, or committed any default in any material respect under, any Company date hereof of each Material Contract; (ii) , and the Acquired Companies have made available to the knowledge Parent a true and complete copy as of the Companydate hereof of each Material Contract (including all schedules, no exhibits and other Person attachments of each such Material Contract that has violated or breached not otherwise been publicly filed in any material respect, or committed any default in any material respect under, any its entirety with the SEC). Neither the applicable Acquired Company Material Contract; (iii) to the knowledge of the Company, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) would reasonably be expected to: (A) result in a violation or breach in any material respect of any Company Material Contract; (B) give any Person the right to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received any written notice (ornor, to the knowledge of the Company, the other party thereto, is in material breach of or material default under any Material Contract and, neither the applicable Acquired Company, or to the knowledge of the Company the other communication) party thereto, has taken or failed to take any action that with or without notice, lapse of time or both would constitute a material breach of or material default under any Material Contract, except in each case, as would not result in a Material Adverse Effect. To the knowledge of the Company, each Material Contract is a valid and binding agreement on the applicable Acquired Company, in full force and effect and enforceable by the applicable Acquired Company in accordance with its terms, subject to the Enforceability Exceptions. No Acquired Company has received any written notice regarding any actual or possible material violation or breach ofor default under any Material Contract that has not since been cured, except for violations or breaches that would not result in a Material Adverse Effect. No party to any Material Contract has given any Acquired Company written notice of its intention to (1) cancel or terminate any Material Contract, or material default under(2) change the scope of rights under or fail to renew any Material Contract (other than failures to renew in the ordinary course of business), any Company except in each case of subclauses (1) and (2) as would not result in a Material ContractAdverse Effect.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Rightside Group, Ltd.)
Contracts. (a) Part 2.10(aSection 3.9(a) of the Company Disclosure Schedule identifies, as Schedules sets forth an accurate and complete list (by each applicable subsection referenced below in this Section 3.9(a)) of the date of this Agreement, each Company Contract that constitutes a Company Material Contract and which remains in effect as of the date hereof and under which a Tetraphase Company has remaining material rights or obligations. For purposes of this Agreement, each of the following Contracts to which the Company Contracts shall be deemed to constitute is a “party or by which the Company Material Contract”is otherwise bound:
(i) any Contract providing for (A) payment by any Person to the Company in effect and which has been filed excess of $[DOLLAR AMOUNT REDACTED] annually, (B) requires a single capital expenditure greater than $[DOLLAR AMOUNT REDACTED], (C) involves a non- cancellable commitment to make capital expenditures in excess of $[DOLLAR AMOUNT REDACTED] annually, or is required to be filed(D) the purchase of products or services by the Company as an exhibit pursuant to Item 601(b)(10from any Person in excess of $[DOLLAR AMOUNT REDACTED] annually, in each case that cannot be cancelled by the Company without penalty or without more than thirty (30) of Regulation S-K under the Exchange Act, or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange Actdays’ notice;
(ii) any Contract: (A) constituting a Company Employee Agreement under which annual salary or other stated annual cash compensation exceeds $200,000; (B) pursuant to which Contract establishing any joint ventures, strategic alliance, partnership, sharing of the Tetraphase Companies is or may become obligated to make any severanceprofit arrangement, termination or similar payment to any Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other and minority equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) aboveinvestments;
(iii) (A) any Contract with any labor union or any collective bargaining agreement or similar Contract for the benefit employment or service of any Company Associate(s)officer, individual Employee or individual service provider or providing for the payment of any severance, retention, or Change in Control Payment or (B) any other Person providing for (x) fixed and/or variable compensation in the aggregate in excess of $[DOLLAR AMOUNT REDACTED] annually or (y) commission based arrangements;
(iv) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software)Government Contract;
(v) each material other than with the Senior Lender, any Contract pursuant or indenture relating to which borrowed money or other Company Debt or the mortgaging, pledging or otherwise placing a Lien on any Intellectual Property Rights asset (tangible or Intellectual Property incorporated into intangible) or any Company Product are licensed by letter of credit arrangements, or any Tetraphase Companyguarantee therefor;
(vi) any material Contract with any distributor and any material contract with any other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality with the Senior Lender, any Contract or nondisclosure agreements entered into in indenture under which the ordinary course of businessCompany has (A) created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) Company Debt, (B) granted a Lien (other than a Permitted Lien) on its properties or assets, whether tangible or intangible, to secure such Company Debt or (C) extended credit to any Person (including any loan or advance);
(vii) any material Contract under which the Company is a (A) lessee of or holds or operates any personal property, owned by any other Person or (B) lessor of or permits any other Person (other than the Company) to hold or operate any purchase order entered into personal property owned or controlled by it, in the ordinary course each case with annual payments in excess of business) with sole source or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business$[DOLLAR AMOUNT REDACTED];
(viii) any collective bargaining agreement, labor peace agreement or any other Contract that provides for: (A) reimbursement of with any Company Associate forlabor union, or advancement to any Company Associate ofworks council, legal fees trade association or other expenses associated agreement or Contract with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associateemployee organization;
(ix) any Contract (A) that restricts license, royalty, indemnification, covenant not to ▇▇▇, escrow, co-existence, concurrent use, consent to use or other Contract relating to any Owned IP or Licensed IP (including any Contracts relating to the ability licensing of Intellectual Property by the Tetraphase Companies Company to compete in any business a third party or with any Person in any geographical area; by a third party to the Company) and (B) in which other Contracts affecting the Company Company’s ability to own, enforce, use, license, or disclose any Tetraphase Company has granted development rightsOwned IP or Licensed IP (clauses (A) and (B), collectively, “most favored nationIP Licenses”), provided that commercial “shrink-wrap” pricing provisions or marketing or distribution rights relating software and “shrink-wrap” software licenses (“Off-the-Shelf Software Licenses”) shall not be required to any product or product candidate; (Cbe set forth on Section 3.9(a) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conductedDisclosure Schedules;
(x) any Contract incorporating agent, sales representative, referral, marketing or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into in the ordinary course of business or that do not deviate in any material respect from the standard forms of Contracts previously Made Available by the Company to Parentdistribution agreement;
(xi) any Contract providing for that limits the ability of the Company to engage in any currency hedgingline of business or that contains a covenant not to compete applicable to the Company;
(xii) any Contract requiring that any of the Tetraphase Companies give any written notice contains “most favored nations” pricing terms or provide any information grants to any Person prior to responding to customer, supplier or prior to accepting vendor any Acquisition Proposal right of first offer or right of first refusal or exclusivity or any similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transactionrequirement;
(xiii) any Contract providing for that contains any “non-solicitation,” “no hire” or similar provisions which restrict the lease Company from soliciting, hiring, engaging, retaining or sublease of Tetraphase Leased Real Propertyemploying any other Person’s current or former employees;
(xiv) any Contract that is a Government Contractsettlement, conciliation or similar agreement entered into in the past three (3) years under which there are continuing obligations or Liabilities on the part of the Company;
(xv) any Contract, not covered by another clause Contract for the disposition of this Section 2.10(a), that: any portion of the assets or Business of the Company (A) involved the payment or delivery other than sales of cash or other consideration in an amount or having a value in excess of $200,000 products in the fiscal year ending December 31, 2019; Ordinary Course of Business) or for the acquisition by the Company of the assets or business of any other Person (B) requires by its terms the payment other than purchases of inventory or delivery of cash or other consideration in an amount or having a value in excess of $200,000 components in the fiscal year ending December 31, 2020; (C) involved the performance Ordinary Course of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020Business);
(xvi) any material Contract that has a term of more than between or among the Company, on the one year hand, and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after Parent, on the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company); andhand;
(xvii) any ContractContract between or among the Company, on the termination of which would have a Company Material Adverse Effect. The Company has delivered one hand, and any current officer, director, manager, Employee or Made Available (including by filing with the SEC) to Parent an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as service provider of the date Company (other than employment and employment-related contracts made in the Ordinary Course of this AgreementBusiness), on the other hand;
(xviii) any powers of attorney; and
(xix) any commitment or arrangement to enter into any of the foregoing.
(b) (i) Each Company Contract that constitutes a Company of the Contracts set forth or required to be set forth on Section 3.9(a) of the Disclosure Schedules and each of the Real Property Leases (collectively, the “Material Contract Contracts”) is valid and in full force and effect (except for Contracts that are expiredand constitutes a valid, terminated, and/or not renewed during binding and enforceable obligation of the Pre-Closing Period), and is enforceable in accordance with its terms, subject to: (i) laws of general application relating to bankruptcy, insolvency Company and the relief of debtors; and other parties thereto, (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”).
(c) Except as set forth in Part 2.10(c) of the Company Disclosure Schedule: (i) none is not in breach of the Tetraphase Companies has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (ii) to the knowledge of the Company, no other Person has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (iii) to the knowledge of the Company, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) would reasonably be expected to: (A) result in a violation or breach in any material respect of any Company Material Contract; (B) give any Person the right to declare a default in any material respect under any Company Material Contract; , and (Ciii) give any Person to the right to accelerate Knowledge of the Company, no counterparty is in breach of or default in any material respect the maturity or performance of under any Company Material Contract; or (D) give any Person . To the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received any written notice (or, to the knowledge Knowledge of the Company, the Company has not received notice of an intention by a counterparty to a Material Contract to terminate such Contract or amend the terms of such Contract, other than in the Ordinary Course of Business or as otherwise disclosed in Section 3.9(a) of the Disclosure Schedules. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other communicationchanges of any right or obligation or the loss of any benefit thereunder. The Company has provided, furnished or made available to Investor (x) regarding any actual a true, complete and correct copy of each written Material Contract, together with all amendments, waivers or possible material violation or breach ofother changes thereto and (y) a true, or material default under, any Company complete and correct description of the terms and conditions of each oral Material Contract.
Appears in 1 contract
Sources: Investment Agreement
Contracts. (a) Part 2.10(aExcept as (x) otherwise set forth in Section 4.21(c) of the Company Parent Disclosure Schedule identifies, or (y) included as an exhibit in any of the date of this AgreementFiled Parent SEC Documents, each Company Contract that constitutes a Company Material Contract and which remains set forth in effect as Section 4.13(a) of the date hereof and under which Parent Disclosure Schedule is a Tetraphase Company has remaining material rights or obligations. For purposes list of this Agreement, each of the following Company Contracts shall be deemed to constitute a “Company Material Contract”:
(i) any Contract in effect and which has been filed (or is required to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Act, or that would be required to be disclosed filed as an exhibit to a Registration Statement on Form S-1 under Item 404 of Regulation Sthe Securities Act or an Annual Report on Form 10-K under the Exchange Act;
Act if such registration statement or report was filed by Parent with the SEC on the date hereof, (ii) Contract that purports to limit, curtail or restrict the ability of Parent or any Contract: of its existing or future Affiliates to compete in any geographic area or line of business, (iii) partnership or joint venture agreement, (iv) Contract for the acquisition, sale or lease of material properties or assets (by merger, purchase or sale of stock or assets or otherwise) entered into since January 1, 2002, (v) Contract with any (A) constituting a Company Employee Agreement under which annual salary or other stated annual cash compensation exceeds $200,000; (B) pursuant to which any of the Tetraphase Companies is or may become obligated to make any severance, termination or similar payment to any Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) above;
(iii) any Contract with any labor union or any collective bargaining agreement or similar Contract for the benefit of any Company Associate(s);
(iv) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software);
(v) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Company;
(vi) any material Contract with any distributor and any material contract with any other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(vii) any material Contract (other than any purchase order entered into in the ordinary course of business) with sole source or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viii) any Contract that provides for: (A) reimbursement of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; Governmental Authority or (B) indemnification director, officer or other Affiliate of Parent, (vi) loan or credit agreement, mortgage, indenture, note or other Contract or instrument evidencing indebtedness for borrowed money by Parent or any Company Associate;
of its Subsidiaries or any Contract or instrument pursuant to which indebtedness for borrowed money may be incurred or is guaranteed by Parent or any of its Subsidiaries, in each case, in excess of $5,000,000, (vii) voting agreement or registration rights agreement, (viii) collective bargaining agreement, (ix) “standstill” or similar agreement, (x) any other Contract (A) that restricts to the ability of extent material to the Tetraphase Companies to compete in any business or with any Person in any geographical area; (B) in which the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity financial condition of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially Parent and adversely affect the conduct of the business of the Tetraphase Companiesits Subsidiaries, taken as a whole, as currently conducted;
and (xxi) commitment or agreement to enter into any Contract incorporating or providing for of the foregoing (the Contracts and other documents required to be listed in Section 4.13(a) of the Parent Disclosure Schedule, together with any material guaranty, warranty, sharing and all other Contracts of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts such type entered into in the ordinary course of business or that do not deviate in any material respect from the standard forms of Contracts previously Made Available by accordance with Section 5.2(b), each a “Parent Material Contract“). Parent has heretofore made available to the Company to Parent;
(xi) any Contract providing for any currency hedging;
(xii) any Contract requiring that any of the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2019; (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company); and
(xvii) any Contract, the termination of which would have a Company Material Adverse Effect. The Company has delivered or Made Available (including by filing with the SEC) to Parent an accurate correct and complete copy copies of each Company Contract that constitutes a Company Parent Material Contract in existence as of the date of this Agreementhereof, together with any and all amendments and supplements thereto and material “side letters” and similar documentation relating thereto.
(b) Each Company Contract that constitutes a Company of the Parent Material Contract Contracts is valid valid, binding and in full force and effect (except for Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period), and is enforceable in accordance with its termsterms by Parent and its Subsidiaries party thereto, subject to: (i) laws of general application relating to bankruptcy, insolvency the Bankruptcy and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”).
(c) Equity Exception. Except as set forth separately identified in Part 2.10(cSection 4.13(b) of the Company Parent Disclosure Schedule: (i) none , no approval, consent or waiver of any Person is needed in order that any Parent Material Contract continue in full force and effect following the consummation of the Tetraphase Companies has violated Transactions. Neither Parent nor any of its Subsidiaries is in default under any Parent Material Contract or breached in other Contract to which Parent or any material respectof its Subsidiaries is a party (collectively, or committed the “Parent Contracts“), nor does any default in any material respect undercondition exist that, any Company Material Contract; (ii) to the knowledge of the Company, no other Person has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (iii) to the knowledge of the Company, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) time or both, would constitute a default thereunder by Parent and its Subsidiaries party thereto, except for such defaults as, individually or in the aggregate, have not had and could not reasonably be expected to: (A) result to have a Parent Material Adverse Effect. To the Knowledge of Parent, no other party to any Parent Contract is in a violation default thereunder, nor does any condition exist that with notice or breach in any material respect lapse of any Company Material Contract; (B) give any Person the right to declare time or both would constitute a default by any such other party thereunder, except for such defaults as, individually or in any material respect under any Company the aggregate, have not had and could not reasonably be expected to have a Parent Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received any written notice (or, to the knowledge of the Company, any other communication) regarding any actual or possible material violation or breach of, or material default under, any Company Material ContractAdverse Effect.
Appears in 1 contract
Contracts. (a) Part 2.10(aExcept as set forth on Schedule 2.16(a) of the Company Disclosure Schedule identifiesSchedules, as of neither the date of this AgreementCompany nor any Subsidiary has, each Company Contract that constitutes is a Company Material Contract and which remains in effect as of the date hereof and under which a Tetraphase Company has remaining material rights party to or obligations. For purposes of this Agreement, each of the following Company Contracts shall be deemed to constitute a “Company Material Contract”is bound by:
(i) any Contract in effect and which has been filed (or is required to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Act, or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange Actcollective bargaining agreements;
(ii) any Contract: (A) constituting a Company Employee Agreement under which annual salary employment or other stated annual cash compensation exceeds $200,000; (B) pursuant to which consulting agreement, contract or commitment with any officer, director, employee or member of the Tetraphase Companies is or may become obligated to make any severance, termination or similar payment to any Company Associate Company's or any spouse, heir Subsidiary's Board of Directors that is not immediately terminable at will by the Company without payment or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) abovepenalty;
(iii) any Contract with any labor union bonus, deferred compensation, pension, profit sharing or retirement plans, or any collective bargaining agreement other employee benefit plans or similar Contract for the benefit of any Company Associate(s)arrangements;
(iv) each material Contract pursuant any employment or consulting agreement with an employee or individual consultant or salesperson or consulting or sales agreement, under which a firm or other organization provides services to which the Company or any Intellectual Property Rights or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software)Subsidiary;
(v) each material Contract pursuant to any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any Intellectual Property Rights of the transactions contemplated by this Agreement or Intellectual Property incorporated into the value of any Company Product are licensed of the benefits of which will be calculated on the basis of any of the transactions contemplated by any Tetraphase Companythis Agreement;
(vi) any material Contract with fidelity or surety bond or completion bond;
(vii) any distributor and lease of personal property having a value individually in excess of $10,000 per annum or which is not cancelable by the Company or a Subsidiary without penalty within ninety (90) days;
(viii) any material contract with any other reseller agreement of indemnification or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, guaranty other than confidentiality or nondisclosure customer agreements entered into in the ordinary course of business;
(viiix) any material Contract agreement containing any covenant limiting the freedom of the Company or any Subsidiary to engage in any line of business or to compete with any Person;
(other than x) any purchase order entered into agreement relating to capital expenditures and involving future payments in excess of $10,000;
(xi) any agreement relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's or any Subsidiary's business;
(xii) with sole source any mortgages, indentures, loans or single source suppliers credit agreements, security agreements or other agreements or instruments relating to any Tetraphase Company the borrowing of products money or servicesextension of credit, including guaranties referred to in clause (viii) hereof, other than confidentiality or nondisclosure extensions of trade credit on customary terms in customer agreements entered into in the ordinary course of business;
(viiixiii) any Contract that provides for: (A) reimbursement of any Company Associate for, purchase order or advancement to any Company Associate of, legal fees contract involving $10,000 or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associatemore;
(ixxiv) any Contract construction contracts;
(Axv) that restricts the ability of the Tetraphase Companies any dealer, distribution, joint marketing (including any pilot program), development, content provider, destination site or sales representative agreement;
(xvi) any agreement pursuant to compete in any business or with any Person in any geographical area; (B) in which the Company or any Tetraphase Company Subsidiary has granted development rightsor may be obligated to grant in the future, “most favored nation” pricing provisions or marketing or distribution rights relating to any product party a source-code license or product candidate; option or other right to use or acquire source-code, including any agreements which provide for source code escrow arrangements;
(Cxvii) in any original equipment manufacturer, value added, remarketer or other agreement for distribution of the Company's or any Subsidiary's products or services, or the products or services of any other Person;
(xviii) any agreement pursuant to which the Company or any Tetraphase Company Subsidiary has agreed to purchase a minimum quantity of goods relating advanced or loaned any amount to any product or product candidate; or (D) which provides for “exclusivity” stockholder of the Company or any similar requirement in favor of Subsidiary or any third partydirector, in each case which restriction would officer, employee, or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;
(x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, consultant other than Contracts entered into business travel advances in the ordinary course of business consistent with past practice;
(xix) any client service agreements or customer support agreements; or
(xx) any other agreement that do involves $10,000 or more and is not deviate in any material respect from the standard forms of Contracts previously Made Available cancelable by the Company to Parent;
or a Subsidiary without penalty within ninety (xi90) days and any Contract providing for any currency hedging;
(xii) any Contract requiring that any of the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract other agreement that is not cancelable by the Company or a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2019; (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company (Subsidiary without penalty in excess of $75,000within one (1) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company); and
(xvii) any Contract, the termination of which would have a Company Material Adverse Effect. The Company has delivered or Made Available (including by filing with the SEC) to Parent an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as of the date of this Agreementyear.
(b) Except for such alleged breaches, violations and defaults, and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, as are all set forth in Schedule 2.16(b) of the Company Schedules, or breaches, violations and defaults which would not have a Material Adverse Effect on the Company, neither the Company nor any Subsidiary has breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the material terms or conditions of any agreement, contract or commitment required to be set forth on Schedule 2.16(a) of the Company Schedules, Schedule 2.14(b) of the Company Schedules or Schedule 2.14(c) of the Company Schedules (any such agreement, contract or commitment, a "Contract"). Each Company Contract that constitutes a Company Material Contract is valid and in full force and effect (and, except for Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period), and is enforceable as otherwise disclosed in accordance with its terms, subject to: (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”).
(c) Except as set forth in Part 2.10(cSchedule 2.16(b) of the Company Disclosure Schedule: (i) none of the Tetraphase Companies has violated or breached in any material respectSchedules, or committed is not subject to any default in thereunder of which the Company has knowledge by any material respect under, any Company Material Contract; (ii) party obligated to the knowledge of the Company, no other Person has violated Company or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (iii) to the knowledge of the Company, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) would reasonably be expected to: (A) result in a violation or breach in any material respect of any Company Material Contract; (B) give any Person the right to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received any written notice (or, to the knowledge of the Company, any other communication) regarding any actual or possible material violation or breach of, or material default under, any Company Material ContractSubsidiary pursuant thereto.
Appears in 1 contract
Contracts. (a) Part 2.10(a) of the Company Disclosure Schedule identifies, as of the date of this Agreement, each Company Contract that constitutes a Company Material Contract and which remains in effect as of the date hereof and under which a Tetraphase Company has remaining material rights or obligations. For purposes of this Agreement, each of the following Company Contracts shall be deemed to constitute a “"Company Material Contract”" which Company Material Contracts are listed on Schedule 2.7 and copies of which have been made available to Parent:
(i) any Acquired Corporation Contract in effect and which has been filed (or that is required by the rules and regulations of the SEC to be filed) by the Company filed as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Act, or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange ActCompany SEC Documents;
(ii) any Contract: (A) constituting a Company Employee Agreement under which annual salary or other stated annual cash compensation exceeds $200,000; (B) Acquired Corporation Contract relating to the employment of any employee, and any Contract pursuant to which any of the Tetraphase Companies Acquired Corporations is or may become obligated to make any severance, termination termination, bonus or similar relocation payment to any Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar other payment (other than payments constituting bonuses in respect of salary) in excess of $20,000, to any current or commissions paid in the ordinary course of business); former employee or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) abovedirector;
(iii) any Acquired Corporation Contract with any labor union relating to the acquisition, transfer, development, sharing or any collective bargaining agreement or similar Contract for the benefit license of any Company Associate(smaterial Proprietary Asset (except for any Acquired Corporation Contract pursuant to which (A) any material Proprietary Asset is licensed to the Acquired Corporations under any third party software license generally available for sale to the public, or (B) any material Proprietary Asset is licensed by any of the Acquired Corporations to any Person on a non-exclusive basis);
(iv) each material any Acquired Corporation Contract pursuant to which provides for indemnification of any Intellectual Property Rights current or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software)former officer, director or employee;
(v) each material any Acquired Corporation Contract pursuant creating or relating to which any Intellectual Property Rights partnership or Intellectual Property incorporated into joint venture or any Company Product are licensed by any Tetraphase Companysharing of revenues, profits, losses, costs or liabilities;
(vi) any material Acquired Corporation Contract with any distributor and any material contract with any other reseller that involves the payment or sales representative, expenditure of in each case excess of $50,000 that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in may not be terminated by the ordinary course applicable Acquired Corporation (without penalty) within sixty (60) days after the delivery of businessa termination notice by the applicable Acquired Corporation;
(vii) any material Acquired Corporation Contract (other than any purchase order entered into in the ordinary course of business) with sole source contemplating or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viii) any Contract that provides for: involving (A) reimbursement of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate;
(ix) any Contract (A) that restricts the ability of the Tetraphase Companies to compete in any business or with any Person in any geographical area; (B) in which the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;
(x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into in the ordinary course of business or that do not deviate in any material respect from the standard forms of Contracts previously Made Available by the Company to Parent;
(xi) any Contract providing for any currency hedging;
(xii) any Contract requiring that any of the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 100,000 in the fiscal year ending December 31aggregate, 2019or (B) the performance of services having a value in excess of $100,000 in the aggregate;
(viii) any Government Contract (A) creating or relating to the creation of any Encumbrance with respect to any asset owned or used by any Acquired Corporation having a value in excess of $50,000; (B) requires involving or incorporating any liability, obligation, guaranty, pledge, performance or completion bond, indemnity (other than customary intellectual property indemnities for hardware and software sold by its terms any Acquired Corporation), right of contribution or surety arrangement, any of which obligations involve or may reasonably be expected to involve an Acquired Corporation obligation in excess of $50,000 per year; or (C) contemplating or involving (1) the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 50,000 in the fiscal year ending December 31aggregate, 2020; or (C2) involved the performance of services having a value in excess of $200,000 50,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company)aggregate; and
(xviiix) any Acquired Corporation Contract imposing any restriction on the right or ability of any Acquired Corporation to (A) compete with any other Person, (B) acquire any material product or other material asset or any services from any other Person, sell any material product or other material asset to or perform any services for any other Person or transact business or deal in any other manner with any other Person, or (C) develop or distribute any material technology.
(x) any other Acquired Corporation Contract, if a breach of such Acquired Corporation Contract would have a Material Adverse Effect on the termination of Acquired Corporations by itself, and specifically excluding any Acquired Corporation Contract which would have a Company Material Adverse Effect. The Company has delivered been disclosed under (ii) or Made Available (including by filing with vi)-(viii) above, but for the SEC) to Parent an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as of the date of this Agreementthresholds set forth in such subsections.
(bi) Each Company Contract that constitutes a As against the Company, each Company Material Contract is valid and in full force and effect (except for Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period)effect, and is enforceable in accordance with its terms, terms subject to: to (iA) laws Legal Requirements of general application relating to bankruptcy, insolvency and the relief of debtors; , and (iiB) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”).
(c) Except as set forth in Part 2.10(c) of the Company Disclosure Schedule: (i) none of the Tetraphase Companies has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contractremedies; and (ii) to the knowledge of Company, as against the other parties thereto, each Company Material Contract is valid and in full force and effect, and enforceable in accordance with its terms subject to (A) Legal Requirements of general application relating to bankruptcy, insolvency and the relief of debtors, and (B) rules of law governing specific performance, injunctive relief and other equitable remedies.
(c) None of the Acquired Corporations has materially violated or breached, or committed any material default under, any Company Material Contract. To the Company's knowledge, no other Person has violated or breached in any material respectbreached, or committed any default in any material respect under, any Company Material Contract; .
(iiid) to the knowledge of To the Company's knowledge, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) would could reasonably be expected to: to (Ai) result in a material violation or material breach in of any material respect provision of any Company Material ContractContract by any of the Acquired Corporations; (Bii) give any Person the right to declare a default in or exercise any material respect remedy under any Company Material Contract; (Ciii) give any Person the right to receive or require a rebate, chargeback, penalty or change in delivery schedule under any Company Material Contract; (iv) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (Dv) give any Person the right to cancelcancel or terminate, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received any written notice (or, to the knowledge of the Company, any other communication) regarding any actual or possible material violation or breach of, or material default underrespect, any Company Material Contract.
(e) To the knowledge of the Acquired Corporations, with respect to Government Contracts, there is, as of the date hereof, no (i) civil fraud or criminal investigation by any Governmental Body, (ii) Acquired Corporation, or current officers, employees or affiliates thereof, currently suspended or debarred, or suspension of debarment proceeding (or equivalent proceeding) against any of the Acquired Corporations, their current officers, employees or affiliates, (iii) request by any Governmental Body for a contract price adjustment based on a claimed disallowance by any Governmental Body or at the direction of any Governmental Body or written notice of defective pricing other than as reserved for on the Company Financial Statements in accordance with GAAP, (iv) claim or equitable adjustment by the Acquired Corporations against the U.S. Government or any third party in excess of $50,000 in the aggregate, (v) written notice challenging, questioning or disallowing any cost(s) in excess of $50,000 in the aggregate, (vi) notice of contract termination, cure notice or show cause notice, or (vii) violation of any statutory, regulatory or contractual provision that could result in any fine or penalty of a criminal, civil or administrative nature.
Appears in 1 contract
Sources: Merger Agreement (Cylink Corp /Ca/)
Contracts. (a) Part 2.10(a) 2.9 of the Company Disclosure Schedule identifies, as of the date of this Agreement, identifies each Company Contract that constitutes a Company Material Contract and which remains Significant Contract, disclosed in effect as of subsections corresponding to the date hereof and under which a Tetraphase Company has remaining material rights or obligationslist set forth below. For purposes of this Agreement, each of the following Company Contracts shall be deemed to constitute a “Company Material Significant Contract”:
(i) any Contract in effect and which has been filed (or is required to be filed) by the constituting a Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Act, or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange ActEmployee Agreement;
(ii) any Contract: (A) constituting a Company Employee Agreement under which annual salary with any works council, labor union or other stated annual cash compensation exceeds $200,000similar organization or body; (B) pursuant to which any of the Tetraphase Companies Acquired Corporations is or may become obligated to make any severance, termination or similar payment to any Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies Acquired Corporations is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses base salary or commissions paid in the ordinary course of business)) in excess of $10,000 to any Company Associate; or (D) pursuant to which any of the Tetraphase Companies Acquired Corporations is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) aboveAcquired Corporations;
(iii) any Contract with any labor union identified or any collective bargaining agreement or similar Contract for required to be identified in Part 2.8 of the benefit of any Company Associate(s)Disclosure Schedule;
(iv) each material any Contract relating to the acquisition, transfer, use, development, sharing or license of any technology or any Intellectual Property or Intellectual Property Right, other than: (A) Contracts pursuant to which any Intellectual Property Rights or Intellectual Property the Company obtains a license from a third party only to general-purpose, non-customized business application software that has been is not incorporated into any Company Product and is licensed generally available to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software);
(v) each material Contract the public pursuant to which any Intellectual Property Rights a shrink-wrap, click-wrap or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Company;
other similar mass-market license agreement; (viB) any material Contract with any distributor standard forms of the type described in Section 2.8(b); and any material contract with any other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements (C) Contracts entered into in the ordinary course of businessbusiness with customers for the sale of Company Products;
(viiv) any material Contract (other than any purchase order entered into in the ordinary course of business) with sole source creating or single source suppliers relating to any Tetraphase Company of products partnership or services, joint venture or requiring any Acquired Corporation to share any revenues with any other than confidentiality or nondisclosure agreements entered into in the ordinary course of businessPerson;
(viiivi) any Contract that provides for: (A) reimbursement of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate;
(vii) any Contract imposing any restriction on the right or ability of any Acquired Corporation: (A) to compete with any other Person; (B) to acquire any product or other asset or any services from any other Person; (C) to solicit, hire or retain any Person as a director, an officer or other employee, or as a consultant or an independent contractor; (D) to develop, sell, supply, distribute, offer, support or service any product or any technology or other asset to or for any other Person; (E) to perform services for any other Person; or (F) to transact business or deal in any other manner with any other Person;
(viii) any Contract with annual payments of $30,000 or more pursuant to which any Acquired Corporation grants or receives marketing, distribution, system integration, OEM or any other similar rights for any product or service;
(ix) any Contract (A) that restricts the ability of the Tetraphase Companies to compete in any business creating a joint development, cooperative development, collaborative research or other similar arrangement with any Person in any geographical area; (B) in which the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conductedPerson;
(x) any Contract (other than Contracts evidencing Company Options): (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any securities; (B) providing any Person with any preemptive right, right of participation, right of maintenance or similar right with respect to any securities; or (C) providing any of the Acquired Corporations with any right of first refusal with respect to, or right to repurchase or redeem, any securities;
(xi) any Contract with annual payments of $50,000 or more incorporating or providing for relating to any material guaranty, any warranty, any sharing of liabilities or any indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into in the ordinary course of business or that do not deviate in any material respect from the standard forms of Contracts previously Made Available by the Company contracts referred to Parent;
(xi) any Contract providing for any currency hedgingin Section 2.8(b);
(xii) any Contract with sole-source or single-source suppliers of products or services with annual payments of $10,000 or more;
(xiii) any Contract relating to the lease or sublease by any of the Acquired Corporations of any real property;
(xiv) any Contract (including Contracts relating to the sale, lease, license, installation, evaluation, testing, maintenance, repair or support of any Company Product) that contemplates or involves the payment or delivery of cash or other consideration in an amount or having a value in excess of $1,000,000 in the aggregate, or contemplates or involves the performance of services having a value in excess of $1,000,000 in the aggregate;
(xv) any Contract that has a term of more than one year with annual payments of $50,000 or more and that may not be terminated by an Acquired Corporation (without penalty in excess of $50,000) within 60 days after the delivery of a termination notice by such Acquired Corporation (other than confidentiality or nondisclosure agreements entered into by any Acquired Corporation in the ordinary course of business);
(xvi) any Contract relating to the acquisition, development, sale or disposition of any business unit or product line of any of the Acquired Corporations or of any Company IP;
(xvii) any Contract relating to the acquisition of a material portion of the assets of, or a material equity or other interest in, any other Entity or any business conducted by any other Entity;
(xviii) any Contract: (A) requiring that any of the Tetraphase Companies Acquired Corporations give any written notice or provide any information to any Person prior to responding to considering or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition TransactionTransaction or similar transaction; or (B) that would reasonably be expected to have a material effect on the ability of the Company to perform any of its obligations under this Agreement, or to consummate any of the Contemplated Transactions;
(xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xivxix) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved requires the payment or delivery by any Acquired Corporation of cash or other consideration in an amount or having a value any sum in excess of $200,000 in the fiscal year ending December 31, 2019; 100,000 (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) including any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000100,000) within 120 days after in the delivery event of a nonperformance by any Acquired Corporation or termination notice by such Tetraphase Company (any party other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company)Acquired Corporation; and
(xviixx) any Contract, Contract relating to any real property which contemplates execution of a deed of conveyance conveying absolute title in such real property in favor of the termination of which would have a Company Material Adverse EffectAcquired Corporations. The Company has delivered or Made Available (including by filing with the SEC) to Parent an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as of the date of this AgreementSignificant Contract.
(b) Each Company Contract that constitutes a Company Material Significant Contract is valid and in full force and effect (except for Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period)effect, and is enforceable in accordance with its terms, subject to: (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”)remedies.
(c) Except as set forth in Part 2.10(c) of the Company Disclosure Schedule: (i) none None of the Tetraphase Companies Acquired Corporations has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (ii) to the knowledge Knowledge of the Company, no other Person has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (iii) to the knowledge Knowledge of the Company, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) would reasonably be expected to: (A) result in a violation or breach in any material respect of any of the provisions of any Company Material Contract; (B) give any Person the right to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to receive or require a rebate, chargeback, penalty or change in delivery schedule under any Company Contract; (D) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract that constitutes a Significant Contract; or (DE) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract that constitutes a Significant Contract; and (iv) between December 31since January 1, 2018 and the date of this Agreement2003, none of the Tetraphase Companies Acquired Corporations has received any written notice (or, to the knowledge of the Company, any other communication) regarding any actual or possible material violation or breach of, or material default under, any Company Material Contract that constitutes a Significant Contract.
Appears in 1 contract
Contracts. Except for contracts, commitments, plans, agreements and licenses listed on SCHEDULE 5.9 or SCHEDULE 5.10, as of the date of this Agreement the Seller (insofar as it relates primarily to the Pressure Sensitive Business) is not a party to or otherwise bound by:
(a) Part 2.10(aexcept for purchase orders accepted in the ordinary course of business, any contract or purchase order to sell products or provide services to any customer (i) providing for payments in excess of $25,000 or (ii) having a term greater than one calendar year;
(b) except for any contract or agreement that will not constitute an Assumed Obligation, any written contract or agreement with any director, officer or employee of the Company Disclosure Schedule identifiesPressure Sensitive Business;
(c) any contract for the lease or sublease as lessee, lessor, sublessee or sublessor of real or personal property of the Pressure Sensitive Business, or any license of computer software used primarily in the Pressure Sensitive Business, requiring payments in excess of $25,000 per year;
(d) except for purchase orders issued in the ordinary course of business, any contract requiring payments in excess of $25,000 for the purchase or sale of any personal property used primarily in the Pressure Sensitive Business;
(e) any contract or agreement containing non-competition covenants limiting the freedom of the Seller to operate the Pressure Sensitive Business;
(f) any contract or agreement for guaranty, indemnity or suretyship of Indebtedness of the Pressure Sensitive Business in excess of $50,000; or
(g) except for any purchase commitments made in the ordinary course of business and in amounts less than $25,000 each, any outstanding purchase commitments or take or pay agreements binding upon the Seller which relate to the Pressure Sensitive Business. Neither the Seller nor, to the knowledge of the Seller, any other party to any contract, agreement, lease or instrument listed on SCHEDULE 5.9 (collectively, the "CONTRACTS") is, as of the date of this Agreement, each Company Contract that constitutes a Company Material Contract and which remains in effect as of the date hereof and under which a Tetraphase Company has remaining material rights or obligations. For purposes of this Agreementdefault in complying with any provisions thereof, each of the following Company Contracts shall be deemed to constitute a “Company Material Contract”:
(i) except for any Contract in effect and which has been filed (or is required to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Act, or such default that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange Act;
(ii) any Contract: (A) constituting a Company Employee Agreement under which annual salary or other stated annual cash compensation exceeds $200,000; (B) pursuant to which any of the Tetraphase Companies is or may become obligated to make any severance, termination or similar payment to any Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) above;
(iii) any Contract with any labor union or any collective bargaining agreement or similar Contract for the benefit of any Company Associate(s);
(iv) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software);
(v) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Company;
(vi) any material Contract with any distributor and any material contract with any other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(vii) any material Contract (other than any purchase order entered into in the ordinary course of business) with sole source or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viii) any Contract that provides for: (A) reimbursement of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate;
(ix) any Contract (A) that restricts the ability of the Tetraphase Companies to compete in any business or with any Person in any geographical area; (B) in which the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;
(x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into in the ordinary course of business or that do not deviate in any material respect from the standard forms of Contracts previously Made Available by the Company to Parent;
(xi) any Contract providing for any currency hedging;
(xii) any Contract requiring that any of the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2019; (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company); and
(xvii) any Contract, the termination of which would have a Company Material Adverse Effect. The Company has delivered or Made Available (including by filing with the SEC) to Parent an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as As of the date of this Agreement.
(b) Each Company Contract that constitutes , except where the same would not, individually or in the aggregate, have a Company Material Contract is valid and in full force and effect (except for Contracts that are expiredAdverse Effect, terminated, and/or the Seller has not renewed during the Pre-Closing Period), and is enforceable in accordance with its terms, subject to: (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”).
(c) Except as set forth in Part 2.10(c) of the Company Disclosure Schedule: (i) none of the Tetraphase Companies has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (ii) to the knowledge of the Company, no other Person has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (iii) to the knowledge of the Company, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) would reasonably be expected to: (A) result in a violation or breach in any material respect of any Company Material Contract; (B) give any Person the right to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received any written notice (or, to the knowledge of the Companyintention of any party to terminate any Contract, any other communication) regarding any actual whether as a termination for convenience or possible material violation or breach of, or material for default under, any Company Material Contractof the Seller thereunder.
Appears in 1 contract
Sources: Asset Purchase Agreement (Spinnaker Industries Inc)
Contracts. (a) Part 2.10(a) of Except as set forth on Schedule 4.14(a), neither the Company Disclosure Schedule identifies, as nor any of the date of this Agreement, each Company Contract that constitutes its Subsidiaries is a Company Material Contract and which remains in effect as of the date hereof and under which a Tetraphase Company has remaining material rights party to or obligations. For purposes of this Agreement, each of the following Company Contracts shall be deemed to constitute a “Company Material Contract”bound by any:
(i) any Contract in effect and which has been filed (that requires future payments by or is required to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) or any of Regulation S-K under its Subsidiaries of more than $1 million in any year or more than $5 million over the Exchange Act, or that would be required to be disclosed under Item 404 term of Regulation S-K under the Exchange ActContract;
(ii) any Contract: (A) constituting a Company Employee Agreement under which annual salary loan agreement, letter of credit, mortgage, note, guarantee of Indebtedness in excess of $1 million or other stated annual cash compensation exceeds $200,000; (B) pursuant to which any instrument evidencing Indebtedness of the Tetraphase Companies is Company or may become obligated to make any severance, termination or similar payment to any Company Associate or any spouse, heir or Representative its Subsidiaries in excess of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) above$1 million;
(iii) any Contract with any labor union real property lease of the Company or any collective bargaining agreement or similar Contract for the benefit of any Company Associate(sits Subsidiaries involving annual payments in excess of $1 million (a “Real Property Lease”);
(iv) each material Contract pursuant that limits or purports to which limit the ability of the Company or any Intellectual Property Rights of its Affiliates to compete in any way in any line of business, with any particular Person or Intellectual Property that has been incorporated into in any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software)jurisdiction;
(v) each material Contract pursuant entered into which purports to which limit the ability of the Company or any Intellectual Property Rights of its Affiliates to hire or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Companysolicit Persons for employment;
(vi) Contract that grants any material Contract with any distributor and any material contract with any other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in the ordinary course form of business;
(vii) any material Contract Encumbrance (other than any purchase order entered into in the ordinary course Permitted Encumbrances) over a material asset of business) with sole source or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viii) any Contract that provides for: (A) reimbursement of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate;
(ix) any Contract (A) that restricts the ability of the Tetraphase Companies to compete in any business or with any Person in any geographical area; (B) in which the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidate; of its Subsidiaries (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;
(x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into those granted in the ordinary course of business consistent with past practice);
(vii) Contract that restricts the Company or any of its Subsidiaries’ right to terminate the employment of any employee without cause or without a specified notice period, or that do obligates the Company or any of its Subsidiaries to pay severance to any employee of the Company or any of the Company Subsidiaries upon termination of such employee’s employment with the Company or any of the Company Subsidiaries;
(viii) employment agreement, severance agreement or agreement that requires payments upon a “change in control” or similar payments or Contract covering any employee or former employee of the Company or any of its Subsidiaries that, individually or collectively, could reasonably be expected to give rise to the payment of any amount that would not deviate in any material respect from the standard forms of Contracts previously Made Available be deductible by the Company to Parentor such Subsidiary by reason of, or constitute an “excess parachute payment” under Section 280G of the Code;
(ix) collective bargaining agreement or other Contract with a labor union, labor organization, workers council or other similar body;
(x) Contract in excess of $1 million under which the Company has guaranteed the Liabilities of, or indemnified, any Person;
(xi) Contract that relates in whole or in part to any Contract providing for any currency hedgingmaterial Company Intellectual Property;
(xii) any Contract requiring that between the Company or any of its Subsidiaries on one hand, and SCL or any of its Subsidiaries (other than the Tetraphase Companies give any written notice Company or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposalits Subsidiaries), or prior to entering into any discussions, agreement, arrangement Existing SCL Controlling Shareholder or understanding relating to any Acquisition TransactionAffiliates of any Existing SCL Controlling Shareholder (other than the Company and its Subsidiaries) on the other;
(xiii) any Contract providing for which SCL (or one of its Subsidiaries) and the lease Company (or sublease one of Tetraphase Leased Real Propertyits Subsidiaries) have jointly entered into with a third party;
(xiv) any Contract in excess of $1 million that is a Government Contractan inter-company agreement related to services provided by or to the Company or any of its Subsidiaries;
(xv) Contract that is a ship management agreement, charter (whether bareboat, time or voyage) or commitment to charter or any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration in an amount or having a value agreement in excess of $200,000 in 1 million that is related to the fiscal year ending December 31, 2019; (B) requires by its terms the payment Vessels including any service or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020maintenance agreements;
(xvi) any material Contract that has is a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty partnership, joint venture, co-development or cooperation agreement in excess of $75,0001 million;
(xvii) within 120 days after Contract that is an acquisition or divestiture agreement except any Contract for the delivery sale of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company)inventory to customers in the ordinary course of business which is consistent with past practice; and
(xviixviii) any Contractother Contract required to be included as an exhibit to Form 20-F pursuant to Item 19 thereof (the Contracts described in clauses (i)-(xviii), together with all amendments, exhibits and schedules to such Contracts, being the termination of which would have a Company “Material Adverse Effect. The Company has delivered or Made Available Contracts”).
(including by filing with the SECb) to Parent an accurate A true and complete copy of each Company Contract that constitutes a Company Material Contract as of has previously been delivered or made available to the Investor and/or its Representatives prior to the date of this Agreement.
(b) hereof. Each Company Contract that constitutes a Company Material Contract is a legal, valid and binding agreement of the Company or its applicable Subsidiary, as the case may be (assuming that such Material Contract shall constitute a legal, valid obligation of such other Persons party thereto (other than the Company or any of its Subsidiaries or any of their Affiliates)), and is in full force and effect (except for Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period), and is enforceable in all material respects in accordance with its terms, subject to: to general equitable principles and bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Applicable Laws (iand judicial application thereof) laws of general application relating to bankruptcy, insolvency or affecting creditor’s rights and subject to the relief effect of debtors; and (ii) rules judicial applications of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”).
(c) foreign laws or foreign governmental actions affecting creditor’s rights. Except as set forth in Part 2.10(c) of the Company Disclosure Schedule: on Schedule 4.14(b), with respect to each Material Contract, (i) none the Company and each of the Tetraphase Companies has violated or breached in any material respectapplicable Subsidiaries of the Company, or committed any default in any material respect under, any Company Material Contract; and (ii) to the knowledge Knowledge of the Company, each other party to such Material Contract, is not in material breach or in material default under (and no other Person event has violated occurred which with notice or breached in any material respectthe passage of time, or committed any both, would constitute a material breach or material default in any material respect under, any Company ) such Material Contract; (iii) to . To the knowledge Knowledge of the Company, there exists no condition, event has occurredor act which constitutes, and no circumstance or condition existswhich, that (with or without notice or after notice, lapse of time) time or both, would reasonably be expected to: (A) result in constitute, a violation or breach in material default under any material respect of any Company Material Contract; (B) give any Person . To the right to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received any written notice (or, to the knowledge Knowledge of the Company, neither the Company nor any other communication) regarding of its Subsidiaries has received written notice of the intention of any actual or possible material violation or breach of, or material default under, Person to terminate any Company Material Contract. Neither the Company nor any of its Subsidiaries has assigned, mortgaged, pledged or otherwise Encumbered any of its right, title or interest under any Material Contract, other than Permitted Encumbrances.
Appears in 1 contract
Contracts. (a) Part 2.10(a) of the Company Disclosure Schedule identifies, as of the date of this Agreement, each Company Contract that constitutes a Company Material Contract and which remains in effect as of the date hereof and under which a Tetraphase Company has remaining material rights or obligations. For purposes of this Agreement, each of the following Company Contracts shall be deemed to constitute a “Company Material Contract”:
: (i) any Contract in effect and which has been filed (or is required to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Act, or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange Act;
; (ii) any Contract: (A) constituting a Company Employee Agreement under which annual salary or other stated annual cash compensation exceeds $200,000; (B) pursuant to which any of the Tetraphase Companies is or may become obligated to make any severance, termination or similar payment to any Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) above;
; (iii) any Contract with any labor union or any collective bargaining agreement or similar Contract for the benefit of any Company Associate(s);
; (iv) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software);
; (v) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Company;
; (vi) any material Contract with any distributor and any material contract with any other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
; (vii) any material Contract (other than any purchase order entered into in the ordinary course of business) with sole source or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viii) any Contract that provides for: (A) reimbursement of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate;
(ix) any Contract (A) that restricts the ability of the Tetraphase Companies to compete in any business or with any Person in any geographical area; (B) in which the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;
(x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into in the ordinary course of business or that do not deviate in any material respect from the standard forms of Contracts previously Made Available by the Company to Parent;
(xi) any Contract providing for any currency hedging;
(xii) any Contract requiring that any of the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2019; (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company); and
(xvii) any Contract, the termination of which would have a Company Material Adverse Effect. The Company has delivered or Made Available (including by filing with the SEC) to Parent an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as of the date of this Agreement.
(b) Each Company Contract that constitutes a Company Material Contract is valid and in full force and effect (except for Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period), and is enforceable in accordance with its terms, subject to: (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”).
(c) Except as set forth in Part 2.10(c) of the Company Disclosure Schedule: (i) none of the Tetraphase Companies has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (ii) to the knowledge of the Company, no other Person has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (iii) to the knowledge of the Company, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) would reasonably be expected to: (A) result in a violation or breach in any material respect of any Company Material Contract; (B) give any Person the right to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received any written notice (or, to the knowledge of the Company, any other communication) regarding any actual or possible material violation or breach of, or material default under, any Company Material Contract.20
Appears in 1 contract
Contracts. (a) Part 2.10(a2.9(a) of the Company Disclosure Schedule identifies, identifies each Company Contract that constitutes a Material Contract as of the date of this Agreement, each Company Contract that constitutes a Company Material Contract and which remains in effect as of the date hereof and under which a Tetraphase Company has remaining material rights or obligations. For purposes of this Agreement, each of the following Company Contracts shall be deemed to constitute a “Company Material Contract”:
(i) any Company Contract constituting a Company Employee Agreement pursuant to which any of the Acquired Corporations is or may become obligated to (A) make any severance, termination, tax gross-up or similar payment to any Company Associate or any spouse or heir of any Company Associate, (B) make any bonus, deferred compensation or similar payment to any Company Associate (other than payments constituting base salary or commissions paid in the ordinary course of business not to exceed $50,000 in the aggregate) or (C) grant or accelerate the vesting of, or otherwise modify, any Company Equity Award other than accelerated vesting provided in Company Equity Plans;
(ii) any Company Contract (A) limiting the freedom or right of any Acquired Corporation to engage in any line of business, to make use of any material Company IP or to compete with any other Person in any location or line of business, or (B) containing any “most favored nations” terms and conditions (including with respect to pricing) granted by any of the Acquired Corporations or exclusivity obligations or restrictions or otherwise limiting the freedom or right of any Acquired Corporation to sell, distribute or manufacture any products or service or any technology or other assets to or for any other Person;
(iii) (A) any Company Contract that requires by its terms the payment or delivery of cash or other consideration to the Acquired Corporations in an amount having an expected value in excess of $100,000 in the fiscal year ending June 30, 2014 or in any fiscal year thereafter; and (B) any Company Contract that requires by its terms the payment or delivery of cash or other consideration by the Acquired Corporations in an amount having an expected value in excess of $55,000 in the fiscal year ending June 30, 2014 or in any fiscal year thereafter;
(iv) any Company Contract relating to Indebtedness (whether incurred, assumed, guaranteed or secured by any asset) of the Company or an Acquired Corporation entered into outside the ordinary course of business, other than any Indebtedness between or among the Company and any of its Subsidiaries;
(v) any Company Contract or arrangement with any Person constituting a joint venture, partnership, collaboration or limited liability corporation;
(vi) any Company Contract that requires or permits an Acquired Corporation, or any successor, to, or acquirer of an Acquired Corporation, to make any payment to another person as a result of a change of control of such Acquired Corporation (a “Change of Control Payment”) or gives another Person a right to receive or elect to receive a Change of Control Payment;
(vii) any Company Contract that prohibits the payment of dividends or distributions in respect of the capital stock of the Company or any of its Subsidiaries, prohibits the pledging of the capital stock or other equity interests of the Company or any of its Subsidiaries or prohibits the issuance of any guaranty by the Company or any of its Subsidiaries;
(viii) any license agreements that are material to the business of the Company and its Subsidiaries, taken as a whole, pursuant to which the Company or any of its Subsidiaries licenses in any Intellectual Property Right or licenses out any Intellectual Property Right owned by the Company or its Subsidiaries (other than license agreements for commercially available software on standard terms and non-exclusive distribution, reseller and end-user customer and other non-exclusive agreements entered into in the ordinary course of business);
(ix) any Company Contract containing any “non-solicitation”, “no-hire” or similar provision which materially restricts any of the Acquired Corporations from soliciting, hiring, engaging, retaining or employing any Person’s current or former employees in any material respect;
(x) any Company Contract that relates to the acquisition or disposition of any businesses, assets or properties (whether by merger, sale of stock, sale of assets or otherwise) that was entered into on or after January 1, 2012 and (y) pursuant to which any earn-out or deferred or contingent payment obligations remain outstanding or (z) pursuant to which a claim for indemnification may still be made against any of the Acquired Corporations (excluding claims based on willful misconduct, intentional misrepresentation or fraud); and
(xi) any other Company Contract that is currently in effect and which has been filed (or is required to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Act, Securities Act or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange Securities Act;.
(iib) any Contract: (A) constituting a Company Employee Agreement under which annual salary or other stated annual cash compensation exceeds $200,000; (B) pursuant to which any As of the Tetraphase Companies is or may become obligated to make any severancedate of this Agreement, termination or similar payment to any the Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, has either delivered or otherwise modify, any stock option, restricted stock, stock appreciation right made available to Buyer or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) above;
(iii) any Contract with any labor union or any collective bargaining agreement or similar Contract for the benefit of any Company Associate(s);
(iv) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software);
(v) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Company;
(vi) any material Contract with any distributor and any material contract with any other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(vii) any material Contract (other than any purchase order entered into in the ordinary course of business) with sole source or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viii) any Contract that provides for: (A) reimbursement of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate;
(ix) any Contract (A) that restricts the ability of the Tetraphase Companies to compete in any business or with any Person in any geographical area; (B) in which the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;
(x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into in the ordinary course of business or that do not deviate in any material respect from the standard forms of Contracts previously Made Available by the Company to Parent;
(xi) any Contract providing for any currency hedging;
(xii) any Contract requiring that any of the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2019; (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company); and
(xvii) any Contract, the termination of which would have a Company Material Adverse Effect. The Company has delivered or Made Available (including by filing with the SEC) to Parent Buyer’s Representatives an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as or has publicly made available such Material Contract in the Electronic Data Gathering, Analysis and Retrieval (E▇▇▇▇) database of the date SEC. Except as set forth on Part 2.9(b) of this Agreement.
(b) Each the Company Contract that constitutes a Company Disclosure Schedule, neither the Acquired Corporations nor, to the knowledge of the Company, the other party is in material breach of or material default under any Material Contract is and, neither the Acquired Corporations, or to the knowledge of the Company, the other party has taken or failed to take any action that with or without notice, lapse of time or both, and to the knowledge of the Company, no event or condition exists that, would constitute a material breach of or material default under any Material Contract. Each Material Contract is, with respect to the Acquired Corporations and, to the knowledge of the Company, the other party, a valid agreement, binding, and in full force and effect (except for Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period), and effect. Each Material Contract is enforceable against the other party or parties thereto by the applicable Acquired Corporation in accordance with its terms, subject to: to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; , and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”).
(c) remedies. Except as set forth in on Part 2.10(c2.9(b) of the Company Disclosure Schedule: (i) none of , no Acquired Corporation has received any written notice regarding any violation or breach or default under any Material Contract that has not since been cured, except for violations or breaches that are not, individually or in the Tetraphase Companies has violated or breached aggregate, reasonably likely to have a Material Adverse Effect. The Acquired Corporations have not waived in writing any material respect, or committed rights under any default in any material respect under, any Company Material Contract; (ii) to , the waiver of which would have, either individually or in the aggregate, a Material Adverse Effect. To the knowledge of the Company, no other Person has violated or breached in any material respectbetween September 30, or committed any default in any material respect under, any Company Material Contract; (iii) to the knowledge of the Company, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) would reasonably be expected to: (A) result in a violation or breach in any material respect of any Company Material Contract; (B) give any Person the right to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 2014 and the date of this Agreement, none the Company has not received any notice in writing from any Person that such Person intends to terminate, or not renew, any Material Contract. Since September 30, 2014 through the date of this Agreement, there has not been any material adverse change in the business relationships of the Tetraphase Companies Company or any of its Subsidiaries with any with any customer that accounted for greater than $100,000 in consolidated revenue for the Company’s fiscal year ended June 30, 2014 (a “Material Customer”), supplier or distributor, and neither the Company nor any of its Subsidiaries has received any written notice that there would be an adverse change in its relations with any Material Customer, supplier or distributor, including (ori) that any such Material Customer would cease to order products or services from the Company or any of its Subsidiaries, would reduce the quantity of products or services it orders, or would seek a reduction in the prices of the products sold or services rendered, (ii) any change in the terms and conditions on which any material supplier or any distributor would supply or distribute products, merchandise, licenses, raw materials or other goods or services to the knowledge Company or any of the Company, any other communication) regarding any actual or possible material violation or breach of, or material default under, any Company Material Contractits Subsidiaries.
Appears in 1 contract
Sources: Merger Agreement (Lyris, Inc.)
Contracts. (a) Part 2.10(a2.9(a) of the Company Disclosure Schedule identifies, identifies each Company Contract that constitutes a Material Contract as of the date of this Agreement, each Company Contract that constitutes a Company Material Contract and which remains in effect as of the date hereof and under which a Tetraphase Company has remaining material rights or obligations. For purposes of this Agreement, each of the following Company Contracts Contracts, along with the In-Bound Licenses and the Out-bound Licenses (but not any Standard Contracts), shall be deemed to constitute a “Company Material Contract”:
(i) any Company Contract (A) with any current or former Company Associate pursuant to which the Company is or may become obligated to make any cash payments for severance, termination, tax gross-up or similar payment to such Company Associate or any spouse or heir of any Company Associate, except for severance, termination, or similar payments required by applicable Legal Requirements or that do not exceed $300,000 per beneficiary or (B) pursuant to which the Company is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any Company Equity Award other than accelerated vesting provided in Company Equity Plans or any grants or accelerated vesting that do not exceed $300,000 per beneficiary;
(ii) any Company Contract that provides for severance, retention or stay bonus, advance notice of termination of three (3) months or more, change in control bonus, accelerated vesting, or any other amount of benefit that will be payable or due solely as a result of the Transaction without any further action by any of the Acquired Corporations, Parent, or any of their respective Affiliates;
(iii) any Company Contract (A) containing any exclusivity obligations or otherwise limiting the freedom or right of an Acquired Corporation, in any material respect, to engage in any line of business, to make use of any material Company IP or to compete with any other Person in any location or line of business, or (B) containing any “most favored nations” terms and conditions (including with respect to pricing) or similar restrictions with respect to pricing granted by an Acquired Corporation, in each case, which restrictions are material to the Acquired Corporations, taken as a whole;
(iv) any Company Contract that requires by its terms the payment or delivery of cash or other consideration by or to an Acquired Corporation in an amount having an expected value in excess of $1,000,000 in the fiscal year ending December 31, 2021 or with respect to which the Company expects to result in payment or delivery of cash or other consideration by or to an Acquired Corporation during the 12-month period ending on June 30, 2022 with value in excess of $1,000,000, excluding Standard Contracts;
(v) any Company Contract relating to Indebtedness in excess of $1,000,000 (whether incurred, assumed, guaranteed or secured by any asset) of the Company or any Acquired Corporation;
(vi) any Company Contract constituting a joint venture, partnership, or limited liability corporation for the sharing of profits and losses;
(vii) any Company Contract that requires or permits any Acquired Corporation, or any successor, to, or acquirer of the Company or any other Acquired Corporation, to make any payment to another Person as a result of a change of control of the Company (a “Change of Control Payment”) or gives another Person a right to receive or elect to receive a Change of Control Payment;
(viii) any Company Contract that prohibits the payment of dividends or distributions in respect of the capital stock of the Company or any Acquired Corporation, the pledging of the capital stock or other equity interests of the Company or any Acquired Corporation or prohibits the issuance of any guaranty by the Company or any Acquired Corporation;
(ix) any Company Contract that is currently in effect and which has been filed (or is required to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Act, Securities Act or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange Securities Act;
(iix) any Contract: Company Contract with any Affiliate, director, executive officer (as such term is defined in the Exchange Act), holder of 5% or more of Company Common Stock or, to the knowledge of the Company, any of their Affiliates (other than the Company) or immediate family members with annual payments in excess of $120,000 (other than, (A) constituting a Company Employee Agreement under which annual salary offer letters that can be terminated at will without severance, payment or other stated annual cash compensation exceeds $200,000; obligations and (B) pursuant to which Company Contracts representing Company Equity Awards);
(xi) any Company Contract for the lease or sublease of any real property with annual payments in excess of $500,000;
(xii) any Company Contract that provides for the acquisition or disposition of any business, or a material amount of stock or assets of any Person, in each case, for consideration in excess of $20,000,000 or that contains any outstanding earn-out or other contingent payment obligations of the Tetraphase Companies is Acquired Corporations, in each case, in excess of $1,000,000, which has not been fully performed (whether by merger, sale of stock, sale of assets or may become obligated otherwise) but excluding any non-exclusive software licenses granted to make any severancecustomers, termination or similar payment to any Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid resellers and original equipment manufacturers in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or and other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) above;
(iii) any Contract with any labor union or any collective bargaining agreement or similar Contract for the benefit of any Company Associate(s);
(iv) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software);
(v) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Company;
(vi) any material Contract with any distributor and any material contract with any other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(vii) any material Contract (other than any purchase order entered into in the ordinary course of business) with sole source or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viii) any Contract that provides for: (A) reimbursement of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate;
(ix) any Contract (A) that restricts the ability of the Tetraphase Companies to compete in any business or with any Person in any geographical area; (B) in which the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;
(x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into in the ordinary course of business or that do not deviate in any material respect from the standard forms of Contracts previously Made Available by the Company to Parent;
(xi) any Contract providing for any currency hedging;
(xii) any Contract requiring that any of the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition TransactionStandard Contracts;
(xiii) any Company Contract providing for with any Governmental Body under which payments in excess of $1,000,000 were received by the lease or sublease of Tetraphase Leased Real PropertyAcquired Corporations in the most recently completed fiscal year;
(xiv) any Company Contract which constitutes a settlement agreement (A) pursuant to which any Acquired Corporation is obligated after the date of this Agreement to pay consideration in excess of $1,000,000 or (B) that is a Government Contract;would otherwise materially limit or adversely affect the operation of the business conducted by any Acquired Corporation in any material respect after the date of this Agreement; and
(xv) any hedging, swap, derivative or similar Company Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2019; (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;.
(xvib) any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company); and
(xvii) any Contract, the termination of which would have a Company Material Adverse Effect. The Company has delivered or Made Available (including by filing with the SEC) to Parent an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as As of the date of this Agreement.
(b) Each , the Company has either delivered or made available to Parent or Parent’s Representatives a copy of each Material Contract or has publicly made available such Material Contract in the ▇▇▇▇▇ database. Neither the applicable Acquired Corporation nor, to the knowledge of the Company, the other party is in material breach of or material default under any Material Contract and, neither the applicable Acquired Corporation, nor, to the knowledge of the Company, the other party has taken or failed to take any action that constitutes with or without notice, lapse of time or both would constitute a Company material breach of or material default under any Material Contract. To the knowledge of the Company, each Material Contract is valid and in full force and effect (except for Contracts that are expired, terminated, and/or not renewed during enforceable by the Pre-Closing Period), and is enforceable applicable Acquired Corporation in accordance with its terms, subject to: to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; debtors and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (remedies. Since January 1, 2019, the “Enforceability Exceptions”).
(c) Except as set forth in Part 2.10(c) of the Company Disclosure Schedule: (i) none of the Tetraphase Companies has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (ii) to the knowledge of the Company, no other Person has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (iii) to the knowledge of the Company, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) would reasonably be expected to: (A) result in a violation or breach in any material respect of any Company Material Contract; (B) give any Person the right to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has Acquired Corporations have not received any written notice (or, to the knowledge of the Company, any other communication) regarding any actual or possible material violation or breach of, or material default under, or any Company intent to terminate, or not renew, any Material Contract that has not since been cured, except for violations or breaches that are not reasonably likely to have, individually or in the aggregate, a Material Adverse Effect. No Acquired Corporation has waived in writing any rights under any Material Contract, the waiver of which would have, either individually or in the aggregate, a Material Adverse Effect.
Appears in 1 contract
Contracts. (a) Part 2.10(a) of the Company Disclosure Schedule identifies, as As of the date of this Agreement, each Company Contract that constitutes neither GeoEye nor any GeoEye Subsidiary is a Company Material Contract and which remains in effect as of the date hereof and under which a Tetraphase Company has remaining material rights or obligations. For purposes of this Agreement, each of the following Company Contracts shall be deemed party to constitute a “Company Material Contract”:
(i) any Contract in effect and which has been filed (or is required to be filed) filed by the Company GeoEye as an exhibit a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Exchange ActSecurities Act (a “Filed GeoEye Contract”) that has not been so filed, and as of the date hereof, no such Contract has been amended or modified since the date filed, other than pursuant to an amendment or modification filed, or that would be which is not required to be disclosed under filed, pursuant to Item 404 601(b)(10) of Regulation S-K under the Exchange Securities Act;.
(iib) any Contract: (ASection 4.14(b) constituting a Company Employee Agreement under which annual salary or other stated annual cash compensation exceeds $200,000; (B) pursuant to which any of the Tetraphase Companies is or may become obligated to make any severanceGeoEye Disclosure Letter sets forth, termination or similar payment to any Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) above;
(iii) any Contract with any labor union or any collective bargaining agreement or similar Contract for the benefit of any Company Associate(s);
(iv) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software);
(v) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Company;
(vi) any material Contract with any distributor and any material contract with any other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(vii) any material Contract (other than any purchase order entered into in the ordinary course of business) with sole source or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viii) any Contract that provides for: (A) reimbursement of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate;
(ix) any Contract (A) that restricts the ability of the Tetraphase Companies to compete in any business or with any Person in any geographical area; (B) in which the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;
(x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into in the ordinary course of business or that do not deviate in any material respect from the standard forms of Contracts previously Made Available by the Company to Parent;
(xi) any Contract providing for any currency hedging;
(xii) any Contract requiring that any of the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2019; (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company); and
(xvii) any Contract, the termination of which would have a Company Material Adverse Effect. The Company has delivered or Made Available (including by filing with the SEC) to Parent an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as of the date of this Agreement.
(b) Each Company Contract that constitutes , a Company Material Contract is valid true and in full force and effect (except for Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period), and is enforceable in accordance with its terms, subject to: complete list of (i) laws each non-competition Contract or any other Contract containing terms that expressly (A) limit or otherwise restrict GeoEye or the GeoEye Subsidiaries or (B) to the Knowledge of general application relating GeoEye, would, after the Effective Time, by its terms expressly limit or otherwise restrict the Combined Company from, in the case of either (A) or (B), engaging or competing in any line of business or in any geographic area, in a manner that would be reasonably likely to bankruptcybe material, insolvency in the case of (A), to GeoEye and the relief GeoEye Subsidiaries, taken as a whole, or in the case of debtors; and (B), to the Combined Company, taken as a whole, (ii) rules each loan and credit agreement, note, debenture, bond, indenture or other similar agreement pursuant to which any Indebtedness of law governing specific performanceGeoEye or any of the GeoEye Subsidiaries is outstanding or may be incurred, injunctive relief other than any such agreement between or among GeoEye and the wholly owned GeoEye Subsidiaries, (iii) each partnership, joint venture or similar agreement or understanding to which GeoEye or any of the GeoEye Subsidiaries is a party relating to the formation, creation, operation, management or control of any partnership or joint venture material to GeoEye and the GeoEye Subsidiaries, taken as a whole, (iv) Contracts pursuant to which GeoEye or a GeoEye Subsidiary pays or is paid $5,000,000 or more in any 12-month period and (iv) Contracts pursuant to which GeoEye or a GeoEye Subsidiary (A) is granted or obtains or agrees to obtain any right to use any material Intellectual Property (other equitable remedies than rights to use readily commercially available Software), (B) permits or agrees to permit any other Person, to use, enforce, or register any material Intellectual Property, or (C) following the Closing, would be required to license, assign, or make available to any other Person material Intellectual Property owned by DigitalGlobe or its Affiliates immediately prior to the Closing, except in the case of (B) or (C), with respect to satellite-generated images sold as part of GeoEye’s database in the ordinary course of business. Each agreement, understanding or undertaking of the type described in this Section 4.14(b) and each Filed GeoEye Contract is referred to herein as a “Enforceability ExceptionsGeoEye Material Contract”).
(c) Except as set forth for matters which, individually or in Part 2.10(c) the aggregate, have not had and would not reasonably be expected to have a GeoEye Material Adverse Effect and except for terminations or expirations at the end of the Company Disclosure Schedule: stated term after the date hereof, (i) none each GeoEye Material Contract (including, for purposes of this Section 4.14(c), any Contract entered into after the date of this Agreement that would have been a GeoEye Material Contract if such Contract existed on the date of this Agreement) is a valid, binding and legally enforceable obligation of GeoEye or a GeoEye Subsidiary, as the case may be, and, to the Knowledge of GeoEye, of the Tetraphase Companies has violated other parties thereto, except, in each case, as enforcement may be limited by bankruptcy, insolvency, reorganization or breached in any material respectsimilar Laws affecting creditors’ rights generally and by general principles of equity, or committed any default in any material respect under, any Company Material Contract; (ii) to the knowledge of the Company, no other Person has violated or breached each such GeoEye Material Contract is in any material respect, or committed any default in any material respect under, any Company Material Contract; full force and effect and (iii) to the knowledge none of GeoEye or any of the Company, no event has occurred, and no circumstance or condition exists, that GeoEye Subsidiaries is (with or without notice or lapse of time, or both) would reasonably be expected to: (A) result in a violation breach or breach in any material respect of any Company Material Contract; (B) give any Person the right to declare a default in any material respect under any Company such GeoEye Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received any written notice (orContract and, to the knowledge Knowledge of the CompanyGeoEye, no other party to any other communication) regarding any actual such GeoEye Material Contract is (with or possible material violation without notice or breach oflapse of time, or material both) in breach or default under, any Company Material Contractthereunder.
Appears in 1 contract
Sources: Merger Agreement (GeoEye, Inc.)
Contracts. (a) Part 2.10(a) of the Company The TenTV Disclosure Schedule identifies, as of the date of this Agreement, each Company Contract that constitutes a Company Material Contract and which remains in effect as of the date hereof and under which a Tetraphase Company has remaining material rights or obligations. For purposes of this Agreement, each of lists the following Company Contracts shall be deemed agreements (written or, to constitute the Knowledge of TenTV, oral) to which TenTV is a “Company Material Contract”party:
(i) any Contract in effect and which has been filed agreement (or is required group of related agreements) for the lease of personal property from or to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Act, or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange Actthird parties providing for lease payments;
(ii) any Contract: agreement (Aor group of related agreements) constituting a Company Employee Agreement under which annual salary or other stated annual cash compensation exceeds $200,000; (B) pursuant to which any of the Tetraphase Companies is or may become obligated to make any severance, termination or similar payment to any Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) above;
(iii) any Contract with any labor union or any collective bargaining agreement or similar Contract for the benefit of any Company Associate(s);
(iv) each material Contract pursuant to which any Intellectual Property Rights purchase or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software);
(v) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Company;
(vi) any material Contract with any distributor and any material contract with any other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(vii) any material Contract (other than any purchase order entered into in the ordinary course of business) with sole source or single source suppliers to any Tetraphase Company sale of products or services, other than confidentiality for the furnishing or nondisclosure agreements entered into in the ordinary course receipt of business;
(viii) any Contract that provides for: (A) reimbursement of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate;
(ix) any Contract services (A) that restricts the ability calls for performance over a period of the Tetraphase Companies to compete in any business more than ninety (90) days, or with any Person in any geographical area; (B) in which the Company TenTV has granted reseller, cosale, referral or any Tetraphase Company has granted development similar rights, “manufacturing rights, "most favored nation” " pricing provisions or marketing or distribution rights relating to any product products or product candidate; (C) in which the Company territory or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating or services or has agreed to any product purchase goods or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third services exclusively from a certain party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;
(xiii) any Contract incorporating agreement establishing a partnership or providing joint venture;
(iv) any agreement (or group of related agreements) under which it has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness for any material guaranty, warranty, sharing of liabilities or indemnity borrowed money (including any indemnity with respect to Intellectual Property or Intellectual Property Rightscapitalized lease obligations) or similar obligationunder which it has imposed (or may impose) a TenTV Security Interest on any of its assets, tangible or intangible;
(v) any agreement concerning confidentiality or noncompetition, other than Contracts customary nondisclosure agreements entered into in the ordinary course Ordinary Course of business or that do not deviate in any material respect from the standard forms Business of Contracts previously Made Available by the Company to ParentTenTV;
(xivi) any Contract providing for any currency hedgingemployment or consulting agreement;
(xiivii) any Contract requiring that agreement involving any officer, director or stockholder of TenTV or any other affiliate (an "Affiliate"), as defined in Rule 12b-2 under the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposalSecurities Exchange Act of 1934, or prior to entering into any discussionsas amended (the "Exchange Act"), agreement, arrangement or understanding relating to any Acquisition Transactionof TenTV;
(xiiiviii) any Contract providing agreement that contains any provisions requiring TenTV to indemnify any other party thereto (excluding indemnities contained in agreements for the lease purchase, sale or sublease license of Tetraphase Leased Real Property;
(xiv) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 products entered into in the fiscal year ending December 31, 2019; (B) requires by its terms the payment or delivery Ordinary Course of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase CompanyBusiness); and
(xviiix) any Contractother agreement (or group of related agreements) not entered into in the Ordinary Course of Business of TenTV and that cannot be terminated within 30 days, the which termination of which would have a Company Material Adverse Effect. The Company has delivered or Made Available (including by filing with the SEC) cause TenTV to Parent an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as of the date of this Agreement.be obligated to pay any monetary damages;
(b) Each Company Contract TenTV has delivered to Loudeye, or provided Loudeye access to, a complete and accurate copy of each agreement listed in Sections 2.12 and 2.13 of the TenTV Disclosure Schedule. With respect to each agreement so listed that constitutes a Company Material Contract is valid material to the current operation of TenTV's business: (i) the agreement is legal, valid, binding, and, to the Knowledge of TenTV, enforceable, and in full force and effect (except for Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period), and is enforceable in accordance with its terms, subject to: (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”).
(c) Except as set forth in Part 2.10(c) of the Company Disclosure Schedule: (i) none of the Tetraphase Companies has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contracteffect; (ii) the Merger and/or the transactions contemplated hereby will not cause the agreement to be illegal, invalid, non-binding and/or unenforceable immediately following the Closing on the same terms thereof as in effect immediately prior to the knowledge Closing; and (iii) neither TenTV nor, to the Knowledge of the CompanyTenTV, no any other Person has violated party is in material breach or breached in any material respectviolation of, or committed any default in any material respect under, any Company Material Contract; (iii) to the knowledge of the Companysuch agreement, and no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) would reasonably be expected to: (A) result in a violation or breach in any material respect of any Company Material Contract; (B) give any Person the right to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received any written notice (is pending or, to the knowledge Knowledge of TenTV, is threatened, that, after the Companygiving of notice, with lapse of time, or otherwise, would constitute a material breach or default by TenTV or, to the Knowledge of TenTV, any other communication) regarding any actual or possible material violation or breach of, or material default under, any Company Material Contractparty under such contract.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Loudeye Technologies Inc)
Contracts. (a) Part 2.10(a) Section 3.16 of the Company Purchaser Disclosure Schedule identifies, lists all material agreements required to be disclosed under the Exchange Act or the Securities Act to which the Purchaser or any of its Purchaser Subsidiaries is a party as of the date of this Agreement, each Company Contract that constitutes a Company Material Contract and which remains in effect as of the date hereof and under which a Tetraphase Company has remaining material rights or obligations. For purposes of this Agreement, each of the following Company Contracts shall be deemed to constitute a “Company Material Contract”including:
(i) any Contract in effect and which has been filed agreement (or is required group of related agreements) for the lease of personal property from or to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Act, or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange Actthird parties;
(ii) any Contract: (A) constituting agreement establishing a Company Employee Agreement under which annual salary partnership or other stated annual cash compensation exceeds $200,000; (B) pursuant to which any of the Tetraphase Companies is or may become obligated to make any severance, termination or similar payment to any Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) abovejoint venture;
(iii) any Contract with agreement (or group of related agreements) under which it has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) or under which it has imposed (or may impose) a Security Interest on any labor union of its assets, tangible or any collective bargaining agreement or similar Contract for the benefit of any Company Associate(s)intangible;
(iv) each any agreement that purports to limit in any material Contract pursuant respect the right of the Purchaser to which engage in any Intellectual Property Rights line of business, or Intellectual Property that has been incorporated into to compete with any Company Product and is licensed to person or operate in any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software)geographical location;
(v) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Companyemployment agreement with executive officers;
(vi) any material Contract with any distributor and any material contract with any other reseller agreement under which the consequences of a default or sales representative, in each case that provides exclusivity rights termination would reasonably be expected to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in the ordinary course of businesshave a Purchaser Material Adverse Effect;
(vii) any material Contract agreement which contains any provisions requiring the Purchaser or any of its Purchaser Subsidiaries to indemnify any other party thereto (other than any purchase order excluding indemnities contained in agreements for the purchase, sale or license of products entered into in the ordinary course Ordinary Course of business) with sole source or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;Business); and
(viii) any Contract that provides for: (A) reimbursement of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate;
(ix) any Contract (A) that restricts the ability of the Tetraphase Companies to compete in any business or with any Person in any geographical area; (B) in which the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;
(x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligationagreement, other than Contracts entered into in as contemplated by this Agreement and the ordinary course Transaction Documents, relating to the sales of business securities of the Purchaser or that do not deviate in any material respect from the standard forms of Contracts previously Made Available by the Company to Parent;
(xi) any Contract providing for any currency hedging;
(xii) any Contract requiring that any of its Purchaser Subsidiaries to which the Tetraphase Companies give any written notice Purchaser or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract that such Subsidiary is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2019; (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company); and
(xvii) any Contract, the termination of which would have a Company Material Adverse Effect. The Company has delivered or Made Available (including by filing with the SEC) to Parent an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as of the date of this Agreementparty.
(b) Each Company Contract that constitutes a Company Material Contract With respect to each agreement listed in the Purchaser SEC Reports: (i) the agreement is valid legal, valid, binding and enforceable and in full force and effect; (ii) the agreement will continue to be legal, valid, binding and enforceable and in full force and effect (except for Contracts that are expired, terminated, and/or not renewed during immediately following the Pre-Closing Period), and is enforceable in accordance with its terms, subject to: (i) laws of general application relating the terms thereof as in effect immediately prior to bankruptcy, insolvency and the relief of debtorsClosing; and (iiiii) rules neither the Purchaser nor any of law governing specific performanceits Purchaser Subsidiaries nor, injunctive relief and other equitable remedies (the “Enforceability Exceptions”).
(c) Except as set forth in Part 2.10(c) of the Company Disclosure Schedule: (i) none of the Tetraphase Companies has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (ii) to the knowledge of the CompanyPurchaser, no any other Person has violated party, is in breach or breached in any material respectviolation of, or committed any default in any material respect under, any Company Material Contract; (iii) to the knowledge of the Companysuch agreement, and no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) would reasonably be expected to: (A) result in a violation or breach in any material respect of any Company Material Contract; (B) give any Person the right to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received any written notice (is pending or, to the knowledge of the CompanyPurchaser, is threatened, which, after the giving of notice, with lapse of time or otherwise, would constitute a breach or default by the Purchaser or any of its Purchaser Subsidiaries or, to the knowledge of the Purchaser, any other communication) regarding any actual or possible material violation or breach of, or material default under, any Company Material Contractparty under such contract.
Appears in 1 contract
Sources: Stock Purchase Agreement (Ds Healthcare Group, Inc.)
Contracts. SCHEDULE 2.9 lists any of the following:
(a) Part 2.10(aEach contract or commitment which creates an obligation, on the part of Acquired Corp in excess of obligations created in the normal and usual course of business and not described in clauses (b) through (k) below;
(b) Each written debt instrument, including, without limitation, any loan agreement, line of credit, promissory note, security agreement or other evidence of indebtedness, where Acquired Corp is a lender, borrower or guarantor, in a principal amount in excess of $15,000;
(c) Each written contract or commitment restricting Acquired Corp from engaging in any line of business;
(d) Each written contract to which Acquired Corp is a party which contains a provision relating to a change in control of Acquired Corp that (i) permits the Company Disclosure Schedule identifiesother party thereto to modify in any material respect or to terminate such contract or (ii) requires notice to such other party of such change in control of Acquired Corp;
(e) Each written contract or commitment in excess of $20,000 to which Acquired Corp is a party for any charitable contribution;
(f) Each written joint venture or partnership agreement to which Acquired Corp is a party;
(g) Each written distributorship, as sales agency, sales representative, reseller or marketing, value added reseller, original equipment manufacturing, technology transfer, source code license or other license or other agreement containing the right to sublicense software and/or technology, in each case, to which Acquired Corp is a party;
(h) Each written agreement in excess of the date $20,000 to which Acquired Corp is a party with respect to any assignment, discounting or reduction of this Agreement, each Company Contract that constitutes a Company Material Contract and which remains in effect as any receivables of the date hereof and under which a Tetraphase Company has remaining material rights or obligations. For purposes of this Agreement, each of the following Company Contracts shall be deemed to constitute a “Company Material Contract”:Acquired Corp;
(i) any Contract in effect and which has been filed (Each agreement, option or is required to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Actcommitment or right with, or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange Act;
(ii) any Contract: (A) constituting a Company Employee Agreement under which annual salary or other stated annual cash compensation exceeds $200,000; (B) pursuant to which any of the Tetraphase Companies is or may become obligated to make any severance, termination or similar payment to any Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modifyheld by, any stock optionthird party to acquire any assets or properties of Acquired Corp having a value in excess of $20,000, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) above;
(iii) any Contract with any labor union or any collective bargaining agreement or similar Contract except for contracts for the benefit sale of any Company Associate(s);
(iv) each material Contract pursuant to which any Intellectual Property Rights inventory, machinery or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software);
(v) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Company;
(vi) any material Contract with any distributor and any material contract with any other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into equipment in the ordinary course of business;
(viij) any material Contract (other than any purchase order Each written employment or consulting contract entered into by Acquired Corp which iscurrently in the ordinary course of business) with sole source or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;effect; and
(viiik) any Contract that provides for: Each supply agreement to which Acquired Corp is a party, which Acquired Corp could not readily replace without a material impact on Acquired Corp. Except as set forth in Schedule 2.9, (Ai) reimbursement to the Best Knowledge of any Company Associate forAcquired Corp, there are no oral contracts or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate;
(ix) any Contract (A) that restricts the ability commitments of the Tetraphase Companies to compete types described in any business or with any Person in any geographical area; (B) in which the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;
(x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into in the ordinary course of business or that do not deviate in any material respect from the standard forms of Contracts previously Made Available by the Company to Parent;
(xi) any Contract providing for any currency hedging;
(xii) any Contract requiring that any of the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved 2.9 which create an obligation on the payment or delivery part of cash or other consideration in an amount or having a value Acquired Corp which are individually in excess of $200,000 20,000 or in the fiscal year ending December 31, 2019; (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value aggregate in excess of $200,000 50,000, (ii) there are no contracts or commitments between Acquired Corp and any Affiliate or between Acquired Corp and any Affiliate that is not listed on any other schedule, (iii) there are no contracts, commitments or arrangements between Acquired Corp and any employee or between Acquired Corp and any employee which require the payment of any compensation upon the occurrence of change in control of Acquired Corp, (iv) there are no contracts or arrangements to which Acquired Corp is a party, except this Agreement, which require notice to, the consent of, or other than with respect to services provided in connection with the Merger, any payment of any compensation (whether as a penalty, liquidated damages or otherwise) to any party with respect to the Merger or any of the transactions contemplated hereby or in the fiscal year ending December 31event of the termination of such contract or arrangement on or following the Effective Time, 2020; (Cv) involved the performance there are no contracts to which Acquired Corp is a party which would create rights in any Person against Parent or any of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company Affiliates (other than confidentiality or nondisclosure agreements entered rights against Acquired Corp and as in effect on the Closing Date) and (vi) Acquired Corp has been duly authorized to enter into by any Tetraphase Company); and
(xvii) any Contract, the termination of which would have a Company Material Adverse Effect. The Company has delivered or Made Available (including by filing with the SEC) to Parent an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as of the date contracts listed in 2.9 and each of this Agreement.
(b) Each Company Contract that constitutes a Company Material Contract the contracts listed in Section 2.9 is valid binding and in full force and effect (except for Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period), and is enforceable in accordance with its terms, subject to: (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”).
(c) Except as set forth in Part 2.10(c) of the Company Disclosure Schedule: (i) none of the Tetraphase Companies has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (ii) to the knowledge of the Company, no other Person has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (iii) to the knowledge of the Company, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) would reasonably be expected to: (A) result in a violation or breach in any material respect of any Company Material Contract; (B) give any Person the right to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received any written notice (or, to the knowledge of the Company, any other communication) regarding any actual or possible material violation or breach of, or material default under, any Company Material Contract.
Appears in 1 contract
Sources: Merger Agreement (Biogentech Corp)
Contracts. (a) Part 2.10(aExcept as set forth on Schedule 2.10 and other than (w) of this Agreement, (x) the Company Disclosure Schedule identifiesOriginal Operating Agreement, (y) the Leases and (z) the Benefit Plans, as of the date of this Agreement, each Agreement neither the Company Contract that constitutes nor any of its Subsidiaries is a Company Material Contract and which remains in effect as of the date hereof and under which a Tetraphase Company has remaining material rights or obligations. For purposes of this Agreement, each of the following Company Contracts shall be deemed party to constitute a “Company Material Contract”any:
(i) Contract relating to any Contract in effect and which has been filed (or is required to be filed) acquisition by the Company as an exhibit or such Subsidiary of any business (whether by asset or stock purchase or otherwise) or any merger, consolidation or similar business combination transaction, in each case, pursuant to Item 601(b)(10) which the Company or such Subsidiary has an outstanding obligation to make any payment in excess of Regulation S-K under the Exchange Act, or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange Act$50,000,000 thereunder;
(ii) Contract relating to any Contract: disposition by the Company or such Subsidiary of any business (Awhether by asset or stock purchase or otherwise) constituting a Company Employee Agreement under which annual salary or other stated annual cash compensation exceeds $200,000; (B) any merger, consolidation or similar business combination transaction, in each case, pursuant to which the Company or such Subsidiary has any outstanding or contingent liabilities in excess of the Tetraphase Companies is or may become obligated to make any severance, termination or similar payment to any Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) above$50,000,000 thereunder;
(iii) Contract that requires the Company or such Subsidiary to post any Contract with any labor union fidelity or any collective bargaining agreement surety bond, completion bond, guarantee, letter of credit or similar Contract other collateral or credit support obligation, in each case for the benefit an amount in excess of any Company Associate(s)$25,000,000;
(iv) each material Contract pursuant to under which the Company or such Subsidiary has borrowed any Intellectual Property Rights money or Intellectual Property that has been incorporated into issued any Company Product and is licensed to any Tetraphase Company note, indenture or other evidence of Indebtedness or guaranteed Indebtedness or Liabilities of others (other than non-exclusive licenses to unmodified commercially available third party software(A) intercompany Indebtedness solely among the Company and its Subsidiaries, (B) intercompany guarantees of Indebtedness of the Company or any of its Subsidiaries or (C) purchases of equipment or materials made under conditional sales Contracts entered into in the Ordinary Course of Business), in each case, having an outstanding principal amount in excess of $50,000,000;
(v) each material Contract pursuant that by its express terms would limit or restrict or otherwise adversely affect the ability of the Company or its Subsidiaries to which any Intellectual Property Rights pay dividends or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Companydistributions;
(vi) any material Contract with any distributor and any material contract with any other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(vii) any material Contract (other than any purchase order entered into in the ordinary course of business) with sole source or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viii) any Contract that provides for: contains a non-compete, right of first refusal, right of first offer or most favored nations obligation or restriction binding on the Company or such Subsidiary or that would be binding on Investor, except for (A) reimbursement any such Contract that can be terminated without material penalty by the Company or such Subsidiary upon notice of any Company Associate for90 days or less, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or and (B) indemnification of any Company Associate;
(ix) any Contract (A) such restrictions that restricts the ability of the Tetraphase Companies to compete in any business or with any Person in any geographical area; (B) in which the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase constitute only a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect de minimis restraint on the conduct of the business of the Tetraphase CompaniesCompany and its Subsidiaries;
(vii) interest rate or currency swap, taken as exchange, option or hedging Contract which has (A) a wholenotional amount on or after the date hereof in excess of $50,000,000 or (B) a term extending for a period of longer than one year after the date hereof;
(viii) Contract relating to any partnership, as currently conductedjoint venture or other similar arrangement in which the Company or such Subsidiary holds equity interests;
(ix) Contract involving the resolution or settlement of any actual or threatened actions, suits or proceedings against or by the Company or such Subsidiary in an amount 11 greater than $25,000,000 in the aggregate that has not been fully performed by the Company or such Subsidiary or otherwise imposes continuing conduct obligations on the Company or such Subsidiary;
(x) Contract to which any Contract incorporating or Governmental Body is a party providing for payments by or to the Company or any of its Subsidiaries in excess of $10,000,000 per year or that otherwise impose material guarantyobligations on the Company or any of its Subsidiaries (excluding any (A) rights-of-ways, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) easements or similar obligation, other than Contracts entered into in the ordinary course Ordinary Course of business Business, and (B) Contracts relating to purchase or sale of services in the Ordinary Course of Business and that do not deviate in any material respect from the standard forms of Contracts previously Made Available by are immaterial to the Company to Parentand its Subsidiaries, taken as whole);
(xi) Contract relating to any Contract providing outstanding commitment for capital expenditures in excess of either (A) $50,000,000 in the aggregate in the current (or any currency hedgingfuture) fiscal year, or (B) $100,000,000 over the remaining life of such Contract;
(xii) Contract not addressed in clauses (i) through (xi) of this Section 2.10(a) providing for payments by or to the Company or such Subsidiary (A) in excess of $100,000,000 in the aggregate during the term thereof or (B) in excess of $50,000,000 in any fiscal year, except for any such Contract requiring that any can be terminated without material penalty by the Company or such Subsidiary upon notice of the Tetraphase Companies give any written notice 90 days or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;less; or
(xiii) Contract to enter into any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2019; (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company); and
(xvii) any Contract, the termination of which would have a Company Material Adverse Effect. The Company has delivered or Made Available (including by filing with the SEC) to Parent an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as of the date of this Agreementforegoing.
(b) Each Company of the Contracts listed or required to be listed on Schedule 2.10 (a “Material Contract”) and each Interim Period Contract that constitutes a Company Material Contract (if any) is valid and binding on the Company or one of its Subsidiaries to the extent the Company or such Subsidiary is a party thereto, as applicable, and to the knowledge of the Company, on each other party thereto, and is in full force and effect and enforceable in accordance with its terms (subject to the Bankruptcy and Equity Exception), except where such failure to be valid, binding, enforceable and in full force and effect (except for Contracts that are expired, terminated, and/or would not renewed during the Pre-Closing Period), and is enforceable in accordance with its terms, subject to: (i) laws of general application relating reasonably be expected to bankruptcy, insolvency and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”).
(c) Except as set forth in Part 2.10(c) of be material to the Company Disclosure Schedule: and its Subsidiaries, taken as a whole. True and complete copies of each Material Contract has been made available to Investor in the Data Room. Neither the Company nor any of its Subsidiaries is in breach or violation of (ior, with notice or lapse of time or both, would become in violation of) none of the Tetraphase Companies has violated any Material Contract or breached in any material respectInterim Period Contract and, or committed any default in any material respect under, any Company Material Contract; (ii) to the knowledge of the Company, no other Person has violated third party to any such Contract is in breach or breached violation of any such Contract, except in either case for any material respect, such breaches or committed any default in any material respect under, any Company Material Contract; (iii) to the knowledge of the Company, no event has occurred, and no circumstance or condition exists, violations that (with or without notice or lapse of time) would not reasonably be expected to: (A) result in to be material to the Company and its Subsidiaries, taken as a violation or breach in any material respect whole. As of any Company Material Contract; (B) give any Person the right to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreementhereof, none of the Tetraphase Companies Company or its Subsidiaries or Affiliates (as applicable) has received any a written notice from the counterparty to any Material Contract of its intention to (ori) terminate such Contract, (ii) modify such Contract in a manner adverse to the knowledge Company or any of the Company, any other communication) regarding any actual or possible material violation or breach ofits Subsidiaries, or (iii) make a claim of force majeure (except for (x) in each such case, such notices as have been withdrawn or otherwise resolved prior to the date hereof, and (y) in the case of clauses (ii) and (iii), as would not be material default underto the Company and its Subsidiaries, any Company Material Contracttaken as a whole).
Appears in 1 contract
Contracts. (a) Part 2.10(aSection 5.18(a) of the Company Disclosure Schedule identifiesLetter sets forth a list of each contract to which the Company or any of the Company Subsidiaries is a party or by which it is bound which:
(i) is a “material contract” (as such term is defined in Section 601(b)(10) of Regulation S-K of the Exchange Act);
(ii) contains outstanding obligations in excess of One Million Dollars ($1,000,000) in any twelve (12)-month period or is otherwise material to the business of the Company, as of the date hereof, and the Company Subsidiaries taken as a whole that cannot be terminated without penalty upon sixty (60) days’ prior notice, except for insurance brokerage, agency, program administration and intermediary contracts entered into in the ordinary course of this Agreementbusiness consistent with past practice, each including those containing contingent commission arrangements;
(iii) any non-competition agreement or any other agreement or arrangement that limits or otherwise restricts the Company Contract or any Company Subsidiaries or purports to restrict Affiliates thereof that constitutes a are not controlled by the Company Material Contract and which remains from engaging or competing in effect any line of business or in any geographic area in any material respect;
(iv) is an employment, severance, retention or indemnification contract applicable to (A) any “named executive officer” (as such term is defined in Item 402 of Regulation S-K of the date hereof and Exchange Act) or director of the Company, (B) any regional chief executive officer of the Company or (C) any employee of the Company or any Company Subsidiary currently entitled to at least one (1)-year’s severance pay, in each case, that cannot be canceled by the Company (or the applicable Company Subsidiary) upon sixty (60) days’ notice without liability, penalty or premium;
(v) joint venture, partnership or limited liability company agreements or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any joint venture, partnership or limited liability company under which the Company or any Company Subsidiary must share revenues, has or may have any liability to provide additional equity or debt capital or has any liability for the obligations of another Person (other than a Tetraphase Company has remaining material rights wholly owned subsidiary), other than in connection with any co-brokerage agreement or obligationsarrangement that generated no more than $5,000,000 in revenues in 2006 and the “USI Affinity” relationships, in each case, entered into in the ordinary course of business consistent with past practice;
(vi) leases for real or personal property involving annual expense in excess of Five Hundred Thousand Dollars ($500,000). For purposes of this Agreement, (each contract of the following Company Contracts shall be deemed to constitute a type described in clauses (i) through (vi), the “Company Material ContractContracts.”)
(b) Except as set forth in Section 5.18(b) of the Company Disclosure Letter:
(i) each Company Contract is (assuming due power and authority of, and due execution and delivery by, the other party or parties thereto) valid and binding upon the Company or the Company Subsidiary party thereto and, to the Knowledge of the Company, each other party thereto, except as may be limited by bankruptcy, insolvency, moratorium, or other similar laws effecting or relating to enforcement of creditors’ rights generally, or by general principles of equity, and is in full force and effect; and
(ii) there is no material default or claim of material default under any Company Contract in effect and which by the Company or the Company Subsidiary party thereto, or to the Knowledge of the Company, by any other party thereto, and, to the Knowledge of the Company, no event has been filed occurred which, with the passage of time or the giving of notice (or is both), would constitute a material default thereunder by the Company or the Company Subsidiary party thereto or by any other party thereto, would permit material modification, acceleration or termination thereof or would result in the payment by the Company of a material penalty.
(c) Except as set forth in Section 5.18(c) of the Company Disclosure Letter, the Company has filed each contract required to be filed) filed by the Company as an exhibit a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Act, Securities Act or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange Act;
(ii) any Contract: (A) constituting a Company Employee Agreement under which annual salary or other stated annual cash compensation exceeds $200,000; (B) pursuant to which any of the Tetraphase Companies is or may become obligated to make any severance, termination or similar payment to any Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) above;
(iii) any Contract with any labor union or any collective bargaining agreement or similar Contract for the benefit of any Company Associate(s);
(iv) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software);
(v) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Company;
(vi) any material Contract with any distributor and any material contract with any other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(vii) any material Contract (other than any purchase order entered into in the ordinary course of business) with sole source or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viii) any Contract that provides for: (A) reimbursement of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate;
(ix) any Contract (A) that restricts the ability of the Tetraphase Companies to compete in any business or with any Person in any geographical area; (B) in which the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;
(x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into in the ordinary course of business or that do not deviate in any material respect from the standard forms of Contracts previously Made Available by the Company to Parent;on a Current Report on Form 8-K.
(xi) any Contract providing for any currency hedging;
(xii) any Contract requiring that any of the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2019; (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company); and
(xvii) any Contract, the termination of which would have a Company Material Adverse Effect. The Company has delivered or Made Available (including by filing with the SEC) to Parent an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as of the date of this Agreement.
(b) Each Company Contract that constitutes a Company Material Contract is valid and in full force and effect (except for Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period), and is enforceable in accordance with its terms, subject to: (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”).
(cd) Except as set forth in Part 2.10(cSection 5.18(d) of the Company Disclosure Schedule: (i) none Letter, to the Knowledge of the Tetraphase Companies has violated Company, there is no contract to which any Company Joint Venture is a party which imposes any restriction on the Company or breached any Company Subsidiary or any of their respective Affiliates from engaging or competing in any line of business or in any geographic area in any material respect, or committed any default in any material respect under, any Company Material Contract; (ii) to the knowledge of the Company, no other Person has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (iii) to the knowledge of the Company, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) would reasonably be expected to: (A) result in a violation or breach in any material respect of any Company Material Contract; (B) give any Person the right to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received any written notice (or, to the knowledge of the Company, any other communication) regarding any actual or possible material violation or breach of, or material default under, any Company Material Contract.
Appears in 1 contract
Sources: Merger Agreement (Usi Holdings Corp)
Contracts. (a) Part 2.10(aExcept as included or described in the iExalt Schedules, there are no material contracts, agreements, franchises, license agreements, or other commitments to which iExalt is a party or by which it or any of its assets, products, technology, or properties are bound;
(b) of the Company Disclosure Schedule identifiesAll contracts, as of the date of this Agreementagreements, each Company Contract that constitutes franchises, license agreements, and other commitments to which iExalt is a Company Material Contract party or by which its properties are bound and which remains are material to the operations of iExalt taken as a whole are valid and enforceable by iExalt in effect all respects, except as limited by bankruptcy and insolvency laws and by other laws affecting the rights of creditors generally;
(c) iExalt is not a party to or bound by, and the date hereof properties of iExalt are not subject to, any contract, agreement, other commitment or instrument; any charter or other corporate restriction; or any judgment, order, writ, injunction, decree, or award which materially and under which adversely affects, or in the future may (as far as iExalt can now foresee) materially and adversely affect, the business, operations, properties, assets, or condition of iExalt; and
(d) Except as included or described in the iExalt Schedules or reflected in the most recent iExalt balance sheet, iExalt is not a Tetraphase Company has remaining material rights party to any oral or obligations. For purposes of this Agreement, each of the following Company Contracts shall be deemed to constitute a “Company Material Contract”:
written (i) contract for the employment of any Contract in effect and officer or employee which has been filed (is not terminable on 30 days or is required to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Act, or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange Act;
less notice; (ii) any Contract: (A) constituting a Company Employee Agreement under which annual salary or other stated annual cash compensation exceeds $200,000; (B) pursuant to which any of the Tetraphase Companies is or may become obligated to make any severanceprofit sharing, termination or similar payment to any Company Associate or any spousebonus, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting ofdeferred compensation, or otherwise modify, any stock option, restricted stockseverance pay, stock appreciation right pension benefit or other equity interest in any retirement plan, agreement, or arrangement covered by Title IV of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) above;
Employee Retirement Income Security Act, as amended; (iii) any Contract with any labor union agreement, contract, or any collective bargaining agreement or similar Contract for indenture relating to the benefit borrowing of any Company Associate(s);
money; (iv) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software);
(v) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Company;
(vi) any material Contract with any distributor and any material contract with any other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(vii) any material Contract (other than any purchase order entered into in the ordinary course of business) with sole source or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viii) any Contract that provides for: (A) reimbursement guaranty of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate;
(ix) any Contract (A) that restricts the ability of the Tetraphase Companies to compete in any business or with any Person in any geographical area; (B) in which the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;
(x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into one on which iExalt is a primary obligor, for the borrowing of money or otherwise, excluding endorsements made for collection and other guaranties of obligations, which, in the ordinary course of business or that aggregate do not deviate in any material respect from the standard forms of Contracts previously Made Available by the Company to Parent;
(xi) any Contract exceed more than one year or providing for any currency hedging;
(xii) any Contract requiring that any of the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration in an amount or having a value payments in excess of $200,000 5,000 in the fiscal year ending December 31, 2019aggregate; (Bvi) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020collective bargaining agreement; (Cvii) involved the performance agreement with any present or former officer or director of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019iExalt; or (Dviii) requires contract, agreement, or other commitment involving payments by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) any material Contract that has a term it of more than one year and which may not be terminated by a Tetraphase Company (without penalty $5,000 in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company); and
(xvii) any Contract, the termination of which would have a Company Material Adverse Effect. The Company has delivered or Made Available (including by filing with the SEC) to Parent an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as of the date of this Agreementaggregate.
(b) Each Company Contract that constitutes a Company Material Contract is valid and in full force and effect (except for Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period), and is enforceable in accordance with its terms, subject to: (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”).
(c) Except as set forth in Part 2.10(c) of the Company Disclosure Schedule: (i) none of the Tetraphase Companies has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (ii) to the knowledge of the Company, no other Person has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (iii) to the knowledge of the Company, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) would reasonably be expected to: (A) result in a violation or breach in any material respect of any Company Material Contract; (B) give any Person the right to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received any written notice (or, to the knowledge of the Company, any other communication) regarding any actual or possible material violation or breach of, or material default under, any Company Material Contract.
Appears in 1 contract
Contracts. (a) Part 2.10(aSchedule 3.16(a) of the Company Disclosure Schedule identifiessets forth a list of all of the following Contracts to which the Company or any of its Subsidiaries is a party or by which the Company, any of its Subsidiaries or any of their respective properties or assets is bound as of the date of this Agreement, each Agreement (other than Company Contract that constitutes a Company Plans) (the "Material Contract and which remains in effect as of the date hereof and under which a Tetraphase Company has remaining material rights or obligations. For purposes of this Agreement, each of the following Company Contracts shall be deemed to constitute a “Company Material Contract”:Contracts"):
(i) any Contract in effect and which has been filed (Contracts that are or is would be required to be filed) filed by the Company as an exhibit a "material contract" pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Act, Securities Act or that would be required to be disclosed under Item 404 of Regulation Sby the Company on a Current Report on Form 8-K under the Exchange ActK;
(ii) any Contract: (A) constituting Contracts with respect to a Company Employee Agreement under which annual salary joint venture, partnership, limited liability or other stated annual cash compensation exceeds $200,000; (B) pursuant similar agreement or arrangement, relate to which the formation, creation, operation, management or control of any partnership or joint venture that is material to the business of the Tetraphase Companies is or may become obligated to make any severanceCompany and its Subsidiaries, termination or similar payment to any Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) abovetaken as a whole;
(iii) any Contract with any labor union or any collective bargaining agreement or similar Contract for the benefit Contracts related to Indebtedness and having an outstanding principal amount in excess of any Company Associate(s)$1,000,000 individually;
(iv) each material Contract pursuant Contracts related to which an acquisition, divestiture, merger or similar transaction containing representations, covenants, indemnities or other obligations, including any Intellectual Property Rights "earnout" or Intellectual Property other deferred or contingent consideration, that has been incorporated into are still in effect and, individually, could reasonably be expected to result in payments to or by the Company or any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software)of its Subsidiaries in excess of $1,000,000;
(v) each material Contract pursuant Contracts related to which any Intellectual Property Rights guarantee or Intellectual Property incorporated into assumption of other obligations of any Company Product are licensed by third party or reimbursement of any Tetraphase Company;
(vi) any material Contract with any distributor and any material contract with any other reseller or sales representativemaker of a letter of credit, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure except for agreements entered into in the ordinary course of business consistent with past practice which agreements relate to obligations which do not individually exceed $500,000;
(vi) Material licenses or other material agreements that relate to Intellectual Property or pursuant to which the Company or any of its Subsidiaries is a named party and licenses in Intellectual Property or licenses out Intellectual Property owned by the Company or its Subsidiaries (including source code escrow agreements and license agreements for software that distributed to third parties and contains or is derived from "open source" or similar software, but excluding (i) non-exclusive licenses to commercially available software with aggregate fees of less than $1,000,000 or (ii) agreements with domain name registrars and non-exclusive licenses to Company software customers or website users in the ordinary course of business);
(vii) Contracts prohibiting the payment of dividends or distributions in respect of the capital stock of the Company or any material Contract of its wholly owned Subsidiaries, prohibiting the pledging of the capital stock of the Company or any wholly owned Subsidiary of the Company or prohibiting the issuance of guarantees by any wholly owned Subsidiary of the Company;
(viii) Contracts containing any rights of exclusivity in favor of the other parties thereto or provisions that prohibit the Company or any of its Subsidiaries from competing in any line of business or in any geographic area;
(ix) Contracts accounting for aggregate revenue to or payments by the Company or any of its Subsidiaries of more than $2,500,000 during the Company's 2009 fiscal year;
(x) settlement agreements, other than (A) releases immaterial in nature or amount entered into with former employees or current or former independent contractors of the Company in the ordinary course of business, (B) settlement agreements for cash only (which has been paid) and does not exceed $1,000,000 as to such settlement or (C) settlement agreements entered into more than two (2) years prior to the date of this Agreement under which none of the Company or its Subsidiaries has any continuing obligations, liabilities or rights (excluding releases);
(xi) leases or subleases under which the Company or its Subsidiaries lease or occupy Leased Real Property;
(xii) Contracts relating to any single or series of related capital expenditures by the Company pursuant to which the Company or any of its Subsidiaries has future financial obligations in excess of $2,000,000; or
(xiii) Contracts that relate to any hedging, derivatives or similar contracts or arrangements (other than any purchase order currency ▇▇▇▇▇▇ or derivatives entered into in the ordinary course of business) with sole source or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viii) any Contract that provides for: (A) reimbursement of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate;
(ix) any Contract (A) that restricts the ability of the Tetraphase Companies to compete in any business or with any Person in any geographical area; (B) in which the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;
(x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into in the ordinary course of business or that do not deviate in any material respect from the standard forms of Contracts previously Made Available by the Company to Parent;
(xi) any Contract providing for any currency hedging;
(xii) any Contract requiring that any of the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2019; (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company); and
(xvii) any Contract, the termination of which would have a Company Material Adverse Effect. The Company has delivered or Made Available (including by filing with the SEC) to Parent an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as of the date of this Agreement.
(bi) Each Company Contract that constitutes a Company Material Contract is valid and binding on the Company and any of its Subsidiaries to the extent such Subsidiary is a party thereto, as applicable, and to the Knowledge of the Company, each other party thereto, and is in full force and effect (except for Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period), and is enforceable in accordance with its terms, subject to: (i) laws of general application relating except where the failure to bankruptcybe valid, insolvency binding, enforceable and in full force and effect would not have, individually or in the relief of debtors; and aggregate, a Company Material Adverse Effect, (ii) rules the Company and each of law governing specific performanceits Subsidiaries, injunctive relief and, to the Knowledge of the Company, any other party thereto, has performed all obligations required to be performed by it under each Material Contract, except where such noncompliance would not have, individually or in the aggregate, a Company Material Adverse Effect and other equitable remedies (the “Enforceability Exceptions”).
(ciii) Except except as set forth in Part 2.10(con Schedule 3.16(b)(iii) of the Company Disclosure Schedule: (i) none , neither the Company nor any of its Subsidiaries has received written notice of the Tetraphase Companies has violated or breached in existence of any material respect, or committed any default in any material respect under, any Company Material Contract; (ii) to the knowledge of the Company, no other Person has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (iii) to the knowledge of the Company, no event has occurred, and no circumstance or condition existswhich constitutes, that (with or without or, after notice or lapse of time) time or both, will constitute, a default on the part of the Company or any of its Subsidiaries under any such Material Contract, except where such default would reasonably be expected to: (A) result not have, individually or in the aggregate, a violation or breach in any material respect of any Company Material Contract; (B) give any Person Adverse Effect. A true, correct and complete copy of each Material Contract has been made available by the right Company to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received any written notice (or, to the knowledge of the Company, any other communication) regarding any actual or possible material violation or breach of, or material default under, any Company Material ContractParent.
Appears in 1 contract
Contracts. (i) Unless otherwise disclosed in Schedule (l)(i) of the eCobalt Disclosure Statement, Schedule (l)(i) of the eCobalt Disclosure Statement lists all material Contracts to which eCobalt and its Subsidiaries are party including those Contracts which fall within any of the following categories: (a) Part 2.10(a) of the Company Disclosure Schedule identifies, as of the date of this Agreement, each Company Contract that constitutes a Company Material Contract and which remains in effect as of the date hereof and under which a Tetraphase Company has remaining material rights or obligations. For purposes of this Agreement, each of the following Company Contracts shall be deemed to constitute a “Company Material Contract”:
(i) any Contract in effect and which has been filed (or is required to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Act, or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange Act;
(ii) any Contract: (A) constituting a Company Employee Agreement under which annual salary or other stated annual cash compensation exceeds $200,000; (B) pursuant to which any of the Tetraphase Companies is or may become obligated to make any severance, termination or similar payment to any Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) above;
(iii) any Contract with any labor union or any collective bargaining agreement or similar Contract for the benefit of any Company Associate(s);
(iv) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software);
(v) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Company;
(vi) any material Contract with any distributor and any material contract with any other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(vii) any material Contract (other than any purchase order entered into in the ordinary course of business) with sole source or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viii) any Contract that provides for: (A) reimbursement of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate;
(ix) any Contract (A) that restricts the ability of the Tetraphase Companies to compete in any business or with any Person in any geographical area; (B) in which the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;
(x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts not entered into in the ordinary course of business or that do not deviate of eCobalt and its Subsidiaries; (b) royalty, joint venture, partnership and similar agreements; (c) Contracts containing covenants purporting to limit the freedom of eCobalt and its Subsidiaries to compete in any material respect line of business in any geographic area, to hire any individual or group of individuals or to acquire any business, entity or the assets thereof; (d) Contracts which after the Effective Time of the Transactions would have the effect of limiting the freedom of Jervois or its Subsidiaries (other than eCobalt or its Subsidiaries) to compete in any line of business in any geographic area, to hire any individual or group of individuals or to acquire any business, entity or the assets thereof; (e) Contracts which contain minimum purchase conditions or requirements or other terms that restrict or limit the purchasing relationships of eCobalt and its Subsidiaries other than in the ordinary course of business; (f) Contracts involving annual revenues or expenditures to the business of eCobalt and its Subsidiaries in excess of $50,000; (g) Contracts containing any rights on the part of any party, including joint venture partners or other entities, to acquire royalty, mining or other property rights from eCobalt and its Subsidiaries; (i) Contracts that require eCobalt or its Subsidiaries to provide indemnification to any other person; and (j) Contracts that require eCobalt to pay a fee, remunerate, or issue equity to a finder, financier, advisor or other equivalent person in connection with any agreement or potential agreement providing eCobalt with debt, equity investors, or a business transaction, including any such Contracts that may be terminated but eCobalt has surviving financial liability or a tailing obligation to the standard forms of Contracts previously Made Available by the Company to Parent;person.
(xiii) All such Contracts disclosed in Schedule (l)(i) of the eCobalt Disclosure Statement are valid and binding obligations of eCobalt or any Contract providing of its Subsidiaries and, to the knowledge of eCobalt, the valid and binding obligation of each other party thereto and are enforceable by eCobalt or its applicable Subsidiary in accordance with their respective terms, and eCobalt or its applicable Subsidiary is entitled to all rights and benefits ascribed to such person thereunder, except for any currency hedging;such Contracts which if not so valid and binding would not, individually or in the aggregate, have a Materially Adverse effect on eCobalt and its Subsidiaries, taken as a whole.
(xiiiii) Neither eCobalt nor, to the knowledge of eCobalt, any other party thereto is in violation of or in default in respect of, nor has there occurred an event or condition which with the passage of time or giving of notice (or both) would constitute a default under or entitle any party to terminate, accelerate, modify or call a default under, or trigger any pre-emptive rights or rights of first refusal under, any such Contract requiring that any disclosed in Schedule (l)(i) of the Tetraphase Companies give eCobalt Disclosure 38970304_4|NATDOCS Statement except such violations or defaults under such Contracts, which, individually or in the aggregate, would not have a Materially Adverse effect on eCobalt and its Subsidiaries, taken as a whole.
(iv) eCobalt is in compliance with all of its obligations to each other party to the eCobalt Financing agreement, and eCobalt is not in violation or default in respect of, nor has there occurred an event or condition which with the passage of time or giving of notice (or both) would constitute a default under or entitle any written notice party to terminate, accelerate, modify or provide call a default under, or trigger any information to any Person prior to responding to pre-emptive rights or rights of first refusal under the eCobalt Financing.
(v) All of the Contracts set out in Schedule (l)(v) of the eCobalt Disclosure Statement, which include, without limitation, all of the Contracts described in Schedule (l)(i)(j), have been terminated on or prior to accepting any Acquisition Proposal the date of this Agreement and are of no force or similar proposaleffect, and the termination of these Contracts did not, or will not, cause a Material Adverse effect. eCobalt delivered termination notices in accordance with such contracts prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2019; (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company); and
(xvii) any Contract, Agreement. In connection with the termination of which would have a Company Material Adverse Effectthe Maxit Agreement, eCobalt obtained the written agreement of Maxit Capital that the 12 month survival or “tail” is of no force and effect, and neither eCobalt or Jervois, or any related party, will be liable to Maxit Capital for any further payments pursuant to the Maxit Agreement. The Company has delivered or Made Available (including by filing with the SEC) to Parent an accurate As and complete copy of each Company Contract that constitutes a Company Material Contract as from of the date of this Agreement, eCobalt has no obligation to any party under these Contracts. eCobalt has not incurred any fee, expense, penalty or similar payment as a result of such termination nor has such termination had a Materially Adverse effect on eCobalt.
(b) Each Company Contract that constitutes a Company Material Contract is valid and in full force and effect (except for Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period), and is enforceable in accordance with its terms, subject to: (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”).
(c) Except as set forth in Part 2.10(c) of the Company Disclosure Schedule: (i) none of the Tetraphase Companies has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (ii) to the knowledge of the Company, no other Person has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (iii) to the knowledge of the Company, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) would reasonably be expected to: (A) result in a violation or breach in any material respect of any Company Material Contract; (B) give any Person the right to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received any written notice (or, to the knowledge of the Company, any other communication) regarding any actual or possible material violation or breach of, or material default under, any Company Material Contract.
Appears in 1 contract
Sources: Arrangement Agreement
Contracts. (a) Part 2.10(a) of the Company Disclosure Schedule identifies, as of the date of Except for this Agreement, each any Company Contract that constitutes a Benefit Plan or Company Material Contract Benefit Agreement and which remains in effect as of except for the date hereof and under which a Tetraphase Company has remaining material rights or obligations. For purposes of this Agreement, each of the following Company Contracts shall be deemed to constitute a “Company Material Contract”:
(i) any Contract in effect and which has been filed (or is required to be filed) by the Company as an exhibit “material contract” exhibits to the Filed Company SEC Documents pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Securities Act, Section 3.13(a) of the Company Disclosure Letter sets forth a true and complete list, as of the date of this Agreement, and the Company has made available to Parent true and complete copies, of:
(i) each Contract that would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(ii) each Contract to which the Company or any Company Subsidiary is a party that (A) restricts in any material respect the ability of the Company or any Company Subsidiary to compete in any business or with any Person in any geographical area, (B) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” or other preferential basis, in each case with respect to pricing, with any third party or (C) provides for “exclusivity” or any similar requirement in favor of any third party;
(iii) each Contract under which the Company or any Company Subsidiary licenses or sublicenses Intellectual Property from or to any third party (other than off-the-shelf, commercially available and/or “shrink-wrap” agreements entered into in the ordinary course of business), except for non-exclusive licenses from third parties or to customers in the ordinary course of business;
(iv) each Contract to which the Company or any Company Subsidiary is a party that provides for annual payments or receipts in excess of $5,000,000;
(v) each Contract to which the Company or any Company Subsidiary is a party relating to indebtedness for borrowed money or any financial guaranty, in each case with respect to a principal amount in excess of $1,000,000;
(vi) each Contract with or binding upon the Company or any of the Company Subsidiaries or any of their respective properties or assets that is of the type that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange Securities Act;
(ii) any Contract: (A) constituting a Company Employee Agreement under which annual salary or other stated annual cash compensation exceeds $200,000; (B) pursuant to which any of the Tetraphase Companies is or may become obligated to make any severance, termination or similar payment to any Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) above;
(iii) any Contract with any labor union or any collective bargaining agreement or similar Contract for the benefit of any Company Associate(s);
(iv) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software);
(v) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Company;
(vi) any material Contract with any distributor and any material contract with any other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(vii) each partnership or joint venture agreement to which the Company or any Company Subsidiary is a party that relates to the formation, creation, operation, management or control of any partnership or joint venture;
(viii) each Contract that grants any right of first refusal, right of first offer or similar right with respect to any material assets, rights or properties of the Company or the Company Subsidiaries;
(ix) each Contract that provides for the acquisition or disposition of any assets (other than any purchase order entered into acquisitions or dispositions of assets in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) and with sole source any material outstanding purchase price adjustment, “earn-out”, indemnification, payment or single source suppliers to similar obligations on the part of the Company or any Tetraphase Company Subsidiary as of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course date of businessthis Agreement;
(viiix) any each Contract that provides for: (A) reimbursement of any Company Associate for, expressly limiting or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate;
(ix) any Contract (A) that restricts restricting the ability of the Tetraphase Companies Company or any of the Company Subsidiaries (A) to compete make distributions or declare or pay dividends in any business respect of their capital stock, partnership interests, membership interests or with any Person in any geographical area; other equity interests, as the case may be, (B) in to make loans to the Company or any of the Company Subsidiaries or (C) to grant Liens on the property of the Company or any of the Company Subsidiaries;
(xi) each material settlement agreement to which the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase Subsidiary is a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;
(x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts releases immaterial in nature or amount entered into in the ordinary course of business or that do not deviate in any material respect from with the standard forms former employees of Contracts previously Made Available by the Company to Parent;
(xi) any Contract providing for any currency hedgingor the Company Subsidiaries or independent contractors in connection with the routine cessation of such employee’s or independent contractor’s employment;
(xii) each material Government Contract that has an associated DD-Form 254, DOE Form 470.1 or any Contract requiring that any of the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;other U.S. government contract security classification specification; and
(xiii) any each Contract providing for which, upon the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment execution or delivery of cash this Agreement or the consummation of the Transactions may result in any payment (whether of severance pay or otherwise) becoming due from the Company, Parent or any of their respective Subsidiaries to any officer or employee thereof. Each such Contract described in clauses (i) through (xiii) above is referred to herein as a “Specified Contract”.
(b) Each of the Specified Contracts is valid, binding and enforceable on the Company or a Company Subsidiary, as the case may be, and, to the knowledge of the Company, each other consideration party thereto, and is in an amount full force and effect, except for such failures to be valid, binding or having a value enforceable or to be in excess of $200,000 full force and effect as would not reasonably be expected to, individually or in the fiscal year ending December 31aggregate, 2019; (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company); and
(xvii) any Contract, the termination of which would have a Company Material Adverse Effect. The Company has delivered or Made Available (including There is no default under any Specified Contract by filing with the SEC) to Parent an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as of the date of this Agreement.
(b) Each Company Contract that constitutes a Company Material Contract is valid and in full force and effect (except for Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period), and is enforceable in accordance with its terms, subject to: (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”).
(c) Except as set forth in Part 2.10(c) of the Company Disclosure Schedule: (i) none of the Tetraphase Companies has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (ii) to the knowledge of the Company, no other Person has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (iii) to the knowledge of the Company, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) would reasonably be expected to: (A) result in a violation or breach in any material respect of any Company Material Contract; (B) give any Person the right to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received any written notice (Subsidiary or, to the knowledge of the Company, any other communication) regarding party thereto, and no event has occurred that with the lapse of time or the giving of notice or both would constitute a default thereunder by the Company or any actual or possible material violation or breach ofCompany Subsidiary or, or material default underto the knowledge of the Company, any other party thereto, in each case except as would not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect. There are no disputes pending or, to the Company’s knowledge, threatened with respect to any of the Specified Contracts and neither the Company nor any of the Company Subsidiaries has received any written notice of the intention of any other party to any Specified Contract to terminate for default, convenience or otherwise any Specified Contract, nor, to the Company’s knowledge, is any such party threatening to do so, in each case except as would not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect.
Appears in 1 contract
Sources: Merger Agreement (Sapient Corp)
Contracts. (a) Part 2.10(a) of the Company Disclosure Schedule identifies, as of the date of this Agreement, each Company Contract that constitutes a Company Material Contract and which remains in effect as of the date hereof and under which a Tetraphase Company has remaining material rights or obligations. For purposes of this Agreement, each of the following Company Contracts shall be deemed to constitute a “Company Material Contract”” which Company Material Contracts are listed on Schedule 2.7 and copies of which have been made available to Parent:
(i) any Acquired Corporation Contract in effect and which has been filed (or that is required by the rules and regulations of the SEC to be filed) by the Company filed as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Act, or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange ActCompany SEC Documents;
(ii) any Contract: (A) constituting a Company Employee Agreement under which annual salary or other stated annual cash compensation exceeds $200,000; (B) Acquired Corporation Contract relating to the employment of any employee, and any Contract pursuant to which any of the Tetraphase Companies Acquired Corporations is or may become obligated to make any severance, termination termination, bonus or similar relocation payment to any Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar other payment (other than payments constituting bonuses in respect of salary) in excess of $20,000, to any current or commissions paid in the ordinary course of business); former employee or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) abovedirector;
(iii) any Acquired Corporation Contract with any labor union relating to the acquisition, transfer, development, sharing or any collective bargaining agreement or similar Contract for the benefit license of any Company Associate(smaterial Proprietary Asset (except for any Acquired Corporation Contract pursuant to which (A) any material Proprietary Asset is licensed to the Acquired Corporations under any third party software license generally available for sale to the public, or (B) any material Proprietary Asset is licensed by any of the Acquired Corporations to any Person on a non-exclusive basis);
(iv) each material any Acquired Corporation Contract pursuant to which provides for indemnification of any Intellectual Property Rights current or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software)former officer, director or employee;
(v) each material any Acquired Corporation Contract pursuant creating or relating to which any Intellectual Property Rights partnership or Intellectual Property incorporated into joint venture or any Company Product are licensed by any Tetraphase Companysharing of revenues, profits, losses, costs or liabilities;
(vi) any material Acquired Corporation Contract with any distributor and any material contract with any other reseller that involves the payment or sales representative, expenditure of in each case excess of $50,000 that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in may not be terminated by the ordinary course applicable Acquired Corporation (without penalty) within sixty (60) days after the delivery of businessa termination notice by the applicable Acquired Corporation;
(vii) any material Acquired Corporation Contract (other than any purchase order entered into in the ordinary course of business) with sole source contemplating or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viii) any Contract that provides for: involving (A) reimbursement of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate;
(ix) any Contract (A) that restricts the ability of the Tetraphase Companies to compete in any business or with any Person in any geographical area; (B) in which the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;
(x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into in the ordinary course of business or that do not deviate in any material respect from the standard forms of Contracts previously Made Available by the Company to Parent;
(xi) any Contract providing for any currency hedging;
(xii) any Contract requiring that any of the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 100,000 in the fiscal year ending December 31aggregate, 2019or (B) the performance of services having a value in excess of $100,000 in the aggregate;
(viii) any Government Contract (A) creating or relating to the creation of any Encumbrance with respect to any asset owned or used by any Acquired Corporation having a value in excess of $50,000; (B) requires involving or incorporating any liability, obligation, guaranty, pledge, performance or completion bond, indemnity (other than customary intellectual property indemnities for hardware and software sold by its terms any Acquired Corporation), right of contribution or surety arrangement, any of which obligations involve or may reasonably be expected to involve an Acquired Corporation obligation in excess of $50,000 per year; or (C) contemplating or involving (1) the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 50,000 in the fiscal year ending December 31aggregate, 2020; or (C2) involved the performance of services having a value in excess of $200,000 50,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company)aggregate; and
(xviiix) any Acquired Corporation Contract imposing any restriction on the right or ability of any Acquired Corporation to (A) compete with any other Person, (B) acquire any material product or other material asset or any services from any other Person, sell any material product or other material asset to or perform any services for any other Person or transact business or deal in any other manner with any other Person, or (C) develop or distribute any material technology.
(x) any other Acquired Corporation Contract, if a breach of such Acquired Corporation Contract would have a Material Adverse Effect on the termination of Acquired Corporations by itself, and specifically excluding any Acquired Corporation Contract which would have a Company Material Adverse Effect. The Company has delivered been disclosed under (ii) or Made Available (including by filing with vi)-(viii) above, but for the SEC) to Parent an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as of the date of this Agreementthresholds set forth in such subsections.
(bi) Each Company Contract that constitutes a As against the Company, each Company Material Contract is valid and in full force and effect (except for Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period)effect, and is enforceable in accordance with its terms, terms subject to: to (iA) laws Legal Requirements of general application relating to bankruptcy, insolvency and the relief of debtors; , and (iiB) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”).
(c) Except as set forth in Part 2.10(c) of the Company Disclosure Schedule: (i) none of the Tetraphase Companies has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contractremedies; and (ii) to the knowledge of Company, as against the other parties thereto, each Company Material Contract is valid and in full force and effect, and enforceable in accordance with its terms subject to (A) Legal Requirements of general application relating to bankruptcy, insolvency and the relief of debtors, and (B) rules of law governing specific performance, injunctive relief and other equitable remedies.
(c) None of the Acquired Corporations has materially violated or breached, or committed any material default under, any Company Material Contract. To the Company’s knowledge, no other Person has violated or breached in any material respectbreached, or committed any default in any material respect under, any Company Material Contract; .
(iiid) to the knowledge of To the Company’s knowledge, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) would could reasonably be expected to: to (Ai) result in a material violation or material breach in of any material respect provision of any Company Material ContractContract by any of the Acquired Corporations; (Bii) give any Person the right to declare a default in or exercise any material respect remedy under any Company Material Contract; (Ciii) give any Person the right to receive or require a rebate, chargeback, penalty or change in delivery schedule under any Company Material Contract; (iv) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (Dv) give any Person the right to cancelcancel or terminate, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received any written notice (or, to the knowledge of the Company, any other communication) regarding any actual or possible material violation or breach of, or material default underrespect, any Company Material Contract.
(e) To the knowledge of the Acquired Corporations, with respect to Government Contracts, there is, as of the date hereof, no (i) civil fraud or criminal investigation by any Governmental Body, (ii) Acquired Corporation, or current officers, employees or affiliates thereof, currently suspended or debarred, or suspension of debarment proceeding (or equivalent proceeding) against any of the Acquired Corporations, their current officers, employees or affiliates, (iii) request by any Governmental Body for a contract price adjustment based on a claimed disallowance by any Governmental Body or at the direction of any Governmental Body or written notice of defective pricing other than as reserved for on the Company Financial Statements in accordance with GAAP, (iv) claim or equitable adjustment by the Acquired Corporations against the U.S. Government or any third party in excess of $50,000 in the aggregate, (v) written notice challenging, questioning or disallowing any cost(s) in excess of $50,000 in the aggregate, (vi) notice of contract termination, cure notice or show cause notice, or (vii) violation of any statutory, regulatory or contractual provision that could result in any fine or penalty of a criminal, civil or administrative nature.
Appears in 1 contract
Sources: Merger Agreement (Safenet Inc)
Contracts. (a) Part 2.10(aSet forth in Section 3.13(a) of the Company Disclosure Schedule identifiesis a list of each Contract that would be required to be filed as an exhibit to a Registration Statement on Form S-1 under the Securities Act or an Annual Report on Form 10-K under the Exchange Act if such registration statement or report was filed by the Company with the SEC on the date of this Agreement and which has not previously been filed as an exhibit to the Filed Company SEC Documents. Also set forth in Section 3.13(a) of the Company Disclosure Schedule is a list of each of the following to which the Company or any of its Subsidiaries is a party which has not previously been filed as an exhibit to the Filed Company SEC Documents any:
(i) Contract that contains a provision capable of being invoked that (A) is not terminable for convenience upon reasonable notice at no charge that purports to materially limit, curtail, restrict the ability of the Company or any of its existing or future Subsidiaries or Affiliates to compete in any geographic area or line of business or restrict the Persons with whom it and existing or future Subsidiaries or Affiliates can compete or to whom it or its existing or future Subsidiaries or Affiliates can sell products or deliver services, (B) is not terminable for convenience upon reasonable notice at no charge that purports to grant any exclusivity, right of first refusal, right of first negotiation, most favored nation status or similar rights that materially restrict the Company or any of its Subsidiaries, or (C) imposes any liquidated damages or penalty clauses on the Company or any of its Subsidiaries, offsets from, or credits to, any other Person (other than service level credits provided pursuant to agreements with customers entered into in the ordinary course of business consistent with past practice);
(ii) Contract with any director, officer or other Affiliate of the Company other than Contracts under which the Company and its Subsidiaries have no further liabilities or obligations and no continuing rights;
(iii) loan or credit agreement, mortgage, indenture, note or other Contract or instrument evidencing indebtedness for borrowed money by the Company or any of its Subsidiaries or any Contract or instrument pursuant to which indebtedness for borrowed money may be incurred or is guaranteed by the Company or any of its Subsidiaries or by which they may be obligated for the liabilities of another person;
(iv) financial derivatives master agreement or confirmation or other agreement evidencing financial hedging or similar trading activities, other than Contracts relating to currency ▇▇▇▇▇▇ or derivatives entered into in the ordinary course of business consistent with past practice;
(v) voting agreement;
(vi) except for Contracts listed in clauses (iii) and (iv) of Section 3.3(c) of the Company Disclosure Schedule, mortgage, pledge, security agreement, deed of trust or other Contract granting a Lien on any material property or assets of the Company or any of its Subsidiaries;
(vii) Contract with a supplier or provider of products or services that has required payments by the Company or any of its Subsidiaries of consideration (whether or not measured in cash) in the fiscal year 2008 or that is reasonably likely, based on the Company’s past experience, to require such payment of consideration in fiscal year 2009 (whether or not measured in cash) of greater than $500,000 but excluding any Contract that requires payment by the Company or any of its Subsidiaries on a time and materials basis;
(viii) Contract with a top thirty (30) customers of the Company measured by operating revenue received by the Company and its Subsidiaries during the eighteen (18) month period prior to the date hereof, including Contracts with any such customer involving software license, maintenance and/or services;
(ix) Contract which makes up the top ten (10) services agreement (excluding any fixed price services agreement) of the Company measured by operating revenue received by the Company and its Subsidiaries during the nine (9) month period ended as of the Balance Sheet Date;
(x) Contract which makes up the top ten (10) fixed price services agreement (excluding any services agreement required to be listed pursuant to Section 3.13(a)(ix)) of the Company and its Subsidiaries) of the Company measured by operating revenue received by the Company and its Subsidiaries during the nine (9) month period ended as of the Balance Sheet Date;
(xi) Contract which makes up the top eighty-five percent (85%) of all active subscription agreements for the Company’s Freight Matrix products measured by revenue received by the Company and its Subsidiaries during the twenty-one (21) month period ended as of the Balance Sheet Date;
(xii) “standstill” or similar agreement restricting the Company;
(xiii) agreement containing a provision capable of being invoked which relates to (A) the granting to the Company or any of its Subsidiaries of any license in or to any Intellectual Property owned by a third party that is used in any current standard or other product of the Company made generally available by the Company or is otherwise material to the Company, or (B) the granting by the Company or any of its Subsidiaries of any license to a third party in or to any Intellectual Property that are material to the Company, (except, in the case of each of clause (A) and clause (B), for any (1) licenses for commercial off-the-shelf software, (2) licenses with terms of use or service posted on a web site, (3) licenses for third party software generally available to the public, and (4) non-negotiated licenses of third party Intellectual Property that is embedded in equipment or fixtures and are used by the Company or any of its Subsidiaries for internal purposes only; and, in the case of clause (B), non-exclusive licenses to customers of the Company and its Subsidiaries in the normal and ordinary course of the day-to-day business of the Company and its Subsidiaries consistent with past practice);
(xiv) any agreement granting by the Company or any of its Subsidiaries any license to a third party to use any source code that is part of the Company Intellectual Property (except source code escrow arrangements for the benefit of customers and related agreements with customers of the Company and its Subsidiaries in the normal and ordinary course of the day-to-day business of the Company and its Subsidiaries consistent with past practice;
(xv) any reseller, distribution, alliance, collaboration, joint marketing or similar agreements that are material to the Company and its Subsidiaries;
(xvi) Contract (1) providing for (or imposing any material ongoing indemnification or other obligations of the Company or any of its Subsidiaries in connection with) the disposition or acquisition by the Company or any of its Subsidiaries of (A) any corporation, partnership or other entity or business or (B) any material amount of assets or rights outside the ordinary course of business consistent with past practice or (2) pursuant to which the Company or any of its Subsidiaries has any material ownership interest in any other person or other business enterprise, other than contracts or agreements under which the Company and its Subsidiaries have no further liabilities or obligations and no continuing rights;
(xvii) settlement agreement, other than (A) releases immaterial in nature or amount entered into with former employees or independent contractors of the Company in the ordinary course of business consistent with past practice in connection with the routine cessation of such employee’s or independent contractor’s employment with the Company, (B) settlement agreements for cash only (which has been paid) and does not exceed $100,000 as to such settlement or (C) settlement agreements entered into more than three years prior to the date of this Agreement under which none of the Company or its Subsidiaries have any continuing obligations, liabilities, or rights (excluding releases); or
(xviii) commitment or agreement to enter into any of the foregoing (the Contracts and other documents required to be listed on Section 3.13(a) of the Company Disclosure Schedule, together with any and all other Contracts of such type entered into in accordance with Section 5.2(a) and the Contracts filed as exhibits to the Filed Company SEC Documents, each a “Company Material Contract”). The Company has heretofore made available to Parent complete and correct copies of each Company Material Contract in existence as of the date of this Agreement, each Company Contract that constitutes a Company Material Contract and which remains in effect as of the date hereof and under which a Tetraphase Company has remaining material rights or obligations. For purposes of this Agreement, each of the following Company Contracts shall be deemed to constitute a “Company Material Contract”:
(i) any Contract in effect and which has been filed (or is required to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Act, or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange Act;
(ii) any Contract: (A) constituting a Company Employee Agreement under which annual salary or other stated annual cash compensation exceeds $200,000; (B) pursuant to which any of the Tetraphase Companies is or may become obligated to make any severance, termination or similar payment to any Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) above;
(iii) any Contract together with any labor union or any collective bargaining agreement or and all amendments and supplements thereto and material “side letters” and similar Contract for the benefit of any Company Associate(s);
(iv) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software);
(v) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Company;
(vi) any material Contract with any distributor and any material contract with any other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(vii) any material Contract (other than any purchase order entered into in the ordinary course of business) with sole source or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viii) any Contract that provides for: (A) reimbursement of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate;
(ix) any Contract (A) that restricts the ability of the Tetraphase Companies to compete in any business or with any Person in any geographical area; (B) in which the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights documentation relating to any product or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;
(x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into in the ordinary course of business or that do not deviate in any material respect from the standard forms of Contracts previously Made Available by the Company to Parent;
(xi) any Contract providing for any currency hedging;
(xii) any Contract requiring that any of the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2019; (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company); and
(xvii) any Contract, the termination of which would have a Company Material Adverse Effect. The Company has delivered or Made Available (including by filing with the SEC) to Parent an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as of the date of this Agreementthereto.
(b) Each Company Contract that constitutes a of the Company Material Contract Contracts is valid valid, binding and in full force and effect (except for Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period), and is enforceable in accordance with its termsterms by the Company and its Subsidiaries party thereto, subject to: (i) laws of general application relating to bankruptcy, insolvency the Bankruptcy and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”).
(c) Except as set forth in Part 2.10(c) of Equity Exception. Neither the Company Disclosure Schedule: (i) none nor any of the Tetraphase Companies has violated or breached its Subsidiaries is in any material respect, or committed any default in any material respect under, under any Company Material Contract; (ii) to , nor does any condition exist that, with notice or lapse of time or both, would constitute a material default thereunder by the knowledge Company or its Subsidiaries party thereto. To the Knowledge of the Company, no other Person has violated or breached in any material respect, or committed any default in any material respect under, party to any Company Material Contract; (iii) to the knowledge of the CompanyContract is in material default thereunder, no event has occurred, and no circumstance or nor does any condition exists, exist that (with or without notice or lapse of time) time or both would reasonably be expected to: (A) result in constitute a violation or breach in material default by any material respect such other party thereunder. Neither the Company nor any of any Company Material Contract; (B) give any Person the right to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies its Subsidiaries has received any written notice (or, to the knowledge of the Company, any other communication) regarding any actual termination or possible material violation or breach of, or material default under, cancellation under any Company Material ContractContract or received any notice of breach or default under any Company Material Contract which breach has not been cured.
Appears in 1 contract
Contracts. (a) Part 2.10(a) of the Except for this Agreement and Company Disclosure Schedule identifiesBenefit Plans, as of the date of this Agreement, each neither the Company Contract that constitutes nor any Company Subsidiary is a Company Material Contract and which remains in effect as party to (all contracts of the date hereof and under which type described in this Section 3.15(a), excluding any Company Benefit Plan, being referred to herein as a Tetraphase Company has remaining material rights or obligations. For purposes of this Agreement, each of the following Company Contracts shall be deemed to constitute a “"Company Material Contract”:"):
(i) any Contract in effect and which has been filed (or is required to be filed) filed by the Company as an exhibit a "material contract" pursuant to Item 601(b)(10) of Regulation S-K under the Exchange ActSecurities Act that has not been so filed;
(ii) any Contract that contains any covenant restricting or limiting, in a respect or to a degree that is material to the Company and the Company Subsidiaries, taken as a whole, the ability of the Company or any of the Company Subsidiaries to engage in any line of business or compete with any Person, in each case, in any geographic area;
(iii) any material Contract with a customer that obligates the Company or its Subsidiaries (or following the Closing, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or that contains "most favored nation" or similar covenants;
(iv) any indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage or other Contract providing for or securing indebtedness for borrowed money (other than trade payables in the ordinary course) or any financial guaranty, in each case with respect to a principal amount in excess of $10,000,000;
(v) any joint venture, partnership or limited liability company agreement or other similar Contract relating to the formation, creation, operation, management or control of any joint venture, partnership or limited liability company, other than any such Contract solely between the Company and its wholly-owned Subsidiaries or among the Company's wholly-owned Subsidiaries;
(vi) any material Contract pursuant to which the Company or the Company Subsidiaries are appointed as an authorized distributor of any third party OEM's equipment;
(vii) any Contract with an affiliate or other Person that would be required to be disclosed under Item 404 404(a) of Regulation S-K promulgated under the Exchange Act;
(ii) any Contract: (A) constituting a Company Employee Agreement under which annual salary or other stated annual cash compensation exceeds $200,000; (B) pursuant to which any of the Tetraphase Companies is or may become obligated to make any severance, termination or similar payment to any Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) above;
(iii) any Contract with any labor union or any collective bargaining agreement or similar Contract for the benefit of any Company Associate(s);
(iv) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property that Act and has not been incorporated into any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software);
(v) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Company;
(vi) any material Contract with any distributor and any material contract with any other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(vii) any material Contract (other than any purchase order entered into in the ordinary course of business) with sole source or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of businessso disclosed;
(viii) any Contract that provides for: settlement, conciliation or similar agreement (A) reimbursement of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; Governmental Entity or (B) indemnification that would require the Company or any of any the Company AssociateSubsidiaries, taken as a whole, to pay consideration of more than $1,000,000 after the date of this Agreement;
(ix) any Contract (A) providing for indemnification, contribution or any guaranty in an amount that restricts the ability of the Tetraphase Companies is material to compete in any business or with any Person in any geographical area; (B) in which the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidate; (C) in which and the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase CompaniesSubsidiaries, taken as a whole, as currently conducted;
(x) any employment or consulting Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity in each case with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into in the ordinary course of business or that do not deviate in any material respect from the standard forms of Contracts previously Made Available by which the Company to Parenthas continuing obligations as of the date hereof) with a term of more than one year or involving compensation (including equity compensation) of more than $100,000 per year with any current or former officer or director of the Company;
(xi) any Contract providing for relating to the disposition or acquisition, directly or indirectly (by merger or otherwise), by Company or any currency hedging;of its Subsidiaries after the date hereof of assets with a fair market value in excess of $5,000,000, other than Contracts relating to the sale of trade products in the ordinary course of business; or
(xii) any Contract requiring that contains any provision that requires the purchase of all of Company's or any of the Tetraphase Companies give any written notice Company Subsidiaries' requirements for a given product or provide any information service from a given third party, which product or service is material to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposalthe Company and its Subsidiaries, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract that is taken as a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2019; (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company); and
(xvii) any Contract, the termination of which would have a Company Material Adverse Effect. The Company has delivered or Made Available (including by filing with the SEC) to Parent an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as of the date of this Agreementwhole.
(b) Each Except as would not be or would not reasonably be expected to be, individually or in the aggregate, material to the revenues or operations of the Company Contract that constitutes and the Company Subsidiaries on a consolidated basis, (i) each Company Material Contract is valid a valid, binding and legally enforceable obligation of the Company or one of the Company Subsidiaries, as the case may be, and, to the Knowledge of the Company, of the other parties thereto, subject in all respects to the Bankruptcy and Equity Exceptions, (ii) each such Company Material Contract is in full force and effect (except for Contracts other than any such failures to be in full force and effect that are expiredresult from the applicable Company Material Contract failing to be a valid, terminated, and/or not renewed during binding and legally enforceable obligation of a party thereto other than the Pre-Closing Period), and is enforceable in accordance with its terms, subject to: (iCompany or a Company Subsidiary) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (iiiii) rules as of law governing specific performancethe date hereof, injunctive relief and other equitable remedies (the “Enforceability Exceptions”).
(c) Except as set forth in Part 2.10(c) none of the Company Disclosure Schedule: (i) none of the Tetraphase Companies has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (ii) to the knowledge of the Company, no other Person has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (iii) to the knowledge of the Company, no event has occurred, and no circumstance or condition exists, that Subsidiary is (with or without notice or lapse of time, or both) would reasonably be expected to: (A) result in a violation breach or breach in default under any material respect of any such Company Material Contract; (B) give any Person the right to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received any written notice (orContract and, to the knowledge Knowledge of the Company, no other party to any other communication) regarding any actual such Company Material Contract is (with or possible material violation without notice or breach oflapse of time, or material both) in breach or default under, thereunder.
(c) Neither the Company nor any of the Company Subsidiaries is party to any Contract which includes: (i) a buy-back obligation in a Contract for equipment with a buy-back purchase price in excess of $5,000,000 or with a buy-back exposure in excess of 10% of the value of the Contract to which it relates; (ii) a performance guarantee lasting longer than 18 months from the date of the Contract or a delivery guarantee and with aggregate liquidated damages (including delivery penalties) in excess of 10% of the value of the Contract to which they relate; or (iii) a consignment obligation on the Company or any Company Material ContractSubsidiary in an amount in excess of $5,000,000 as to any mine site, unless none of the consigned parts are obsolete, unusable, unmarketable for the purpose for which they were intended or carried at more than their estimated salable value if they are not purchased by the customer to which they are consigned after taking into account reserves existing at April 29, 2016.
Appears in 1 contract
Sources: Merger Agreement (Joy Global Inc)
Contracts. (a) Part 2.10(aSection 2.9(a) of the Company Disclosure Schedule identifies, Letter identifies each Company Contract that constitutes a Material Contract as of the date of this AgreementAgreement (other than those Company Contracts which are business purchase orders entered into in the ordinary course and which, each Company Contract that constitutes a Company Material Contract to the extent they contain substantive terms and which remains conditions, do not deviate in effect as any material respect from those used in past practice of the date hereof and under which a Tetraphase Company has remaining material rights Acquired Companies or obligationsfrom such terms set forth in the Acquired Companies’ standard forms (the “Specified Purchase Orders”)). For purposes of this Agreement, each of the following Company Contracts, along with each In-bound License, Out-bound License, each Specified Purchase Order and other Contracts required to be disclosed in Section 2.8(c) of the Company Disclosure Letter, shall be deemed to constitute a “Company Material Contract”:
(i) any Company Contract in effect and which has been filed (or is required to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Act, or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange Act;
(ii) any Contract: (A) constituting a with any current or former Company Employee Agreement under Associate pursuant to which annual salary any Acquired Company is or other stated annual cash compensation exceeds $200,000; may become obligated to make or provide any severance, termination, retention, change in control, tax gross-up or similar payment or benefits to such Company Associate, except for severance, termination, or similar payments or benefits required by applicable Legal Requirements or (B) pursuant to which any of the Tetraphase Companies is or may become obligated to make any severance, termination or similar payment to any Acquired Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any Company Equity Award, or stock option, restricted stock, stock appreciation right or bonus other equity interest than accelerated vesting provided in any Company Equity Plan or any applicable award agreement under the Company Equity Plans;
(ii) any Company Contract containing (A) any exclusivity obligations or otherwise limiting the freedom or right of the Tetraphase Companies an Acquired Company, in any material respect, to engage in any line of business, to make use of any material Company IP or to compete with any other than pursuant Person in any location or line of business or (B) any “most favored nations” terms and conditions (including with respect to agreements on forms described in Section 2.10(a)(ipricing) aboveor similar restrictions with respect to pricing granted by an Acquired Company;
(iii) any Contract with any labor union or any collective bargaining agreement or similar Contract for the benefit of any Company Associate(s);
(iv) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software);
(v) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Company;
(vi) any material Contract with any distributor and any material contract with any other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(vii) any material Contract (other than any purchase order entered into in the ordinary course of business) with sole source or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viii) any Contract that provides for: requires by its terms (A) reimbursement of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate;
(ix) any Contract (A) that restricts the ability of the Tetraphase Companies to compete in any business or with any Person in any geographical area; (B) in which the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;
(x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into in the ordinary course of business or that do not deviate in any material respect from the standard forms of Contracts previously Made Available by the Company to Parent;
(xi) any Contract providing for any currency hedging;
(xii) any Contract requiring that any of the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration by Acquired Company in an amount or having a an expected value in excess of $200,000 2,100,000 in the fiscal year ending December 31, 2019; 2024, and (B) requires by its terms the payment or delivery of cash or other consideration to an Acquired Company in an amount or having a an expected value in excess of $200,000 3,840,000 in the fiscal year ending December 31, 2020; 2024, in each case excluding Standard Licenses;
(Civ) involved the performance of services having a value any Company Contract relating to Indebtedness in excess of $200,000 1,000,000 (whether incurred, assumed, guaranteed or secured by any asset) of the Company or any Acquired Company;
(v) any Company Contract constituting a joint venture, partnership, or limited liability corporation for the sharing of profits and losses;
(vi) any Company Contract that prohibits the payment of dividends or distributions in respect of the fiscal year ended December 31capital stock of the Company or any Acquired Company, 2019; the pledging of the capital stock or other equity interests of the Company or any Acquired Company or prohibits the issuance of any guaranty by the Company or any Acquired Company;
(Dvii) requires any Company Lease;
(viii) any Contract relating to any disposition or acquisition by its terms an Acquired Company of any Entity (or equity interests therein) or business (including assets constituting a material business or business lines) that has material obligations remaining to be performed or material liabilities continuing after the performance date of services having a value this Agreement;
(ix) any Company Contract with any Governmental Body under which payments in excess of $200,000 3,840,000 were received by the Acquired Companies in the most recently completed fiscal year ending December 31year;
(x) any Contracts (A) with any record or, 2020to the knowledge of the Company, beneficial owner as of the date hereof of five percent (5%) or more of the voting securities of the Company, or (B) of the type that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act;
(xi) any hedging, swap, derivative or similar Company Contracts;
(xii) any Company Contract that requires any Acquired Company, or any successor to, or acquirer of, the Company or any other Acquired Company, to make any payment to another Person solely as a result of a change of control of any Acquired Company;
(xiii) any Company Contract that contains a put, call or similar right pursuant to which any Acquired Company could be required, upon the exercise of such right, to purchase or sell, as applicable, any equity interests or assets of any Person that are material to such Acquired Company;
(xiv) any Company Contract which constitutes a settlement or conciliation agreement (A) pursuant to which any Acquired Company is obligated after the date of this Agreement to pay consideration in an amount in excess of $500,000 or (B) that imposes any material obligation on any Acquired Company after the date of this Agreement;
(xv) any Labor Agreement; and
(xvi) any other Company Contract not otherwise described in any other subsection of this Section 2.9(a) that would constitute a “material Contract that has a contract” (as such term is defined in Item 601(b)(10) of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess Regulation S-K of $75,000the SEC) within 120 days after with respect to the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company); and.
(xviib) any Contract, the termination of which would have a Company Material Adverse Effect. The Company has either delivered or Made Available made available to Parent or Parent’s Representatives or has publicly made available in the Electronic Data Gathering, Analysis and Retrieval (including by filing with ▇▇▇▇▇) database of the SEC) to Parent an accurate , a true and complete copy of each Material Contract, including all amendments, waivers and changes thereto. Neither the applicable Acquired Company Contract that constitutes a Company nor, to the knowledge of the Company, any other party thereto is in material breach of or material default under any Material Contract as and, neither the applicable Acquired Company, nor, to the knowledge of the date Company, any other party thereto has taken or failed to take any action that with or without notice, lapse of this Agreement.
(b) time or both would constitute a material breach of or material default under any Material Contract, except as would not have and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. Each Company Contract that constitutes a Company Material Contract is with respect to the Acquired Company party thereto and the other parties thereto a valid agreement, binding and in full force and effect (except for Contracts that are expiredeffect. Each Material Contract is an enforceable obligation of the applicable Acquired Company and, terminatedto the knowledge of the Company, and/or not renewed during the Pre-Closing Period)each other party thereto, and is enforceable in accordance with its terms, subject to: to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; debtors and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (collectively, the “Enforceability ExceptionsLimitations”).
(c) Except as set forth in Part 2.10(c) of . Since January 1, 2022, the Company Disclosure Schedule: (i) none of the Tetraphase Acquired Companies has violated have not received any written notice regarding any violation or breached in any material respectbreach or default under, or committed any default in any material respect underintent to terminate or not renew, any Material Contract that has not since been cured, except for violations, breaches, defaults or nonrenewals that would not have and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. No Acquired Company has waived any rights under any Material Contract; (ii) to , the knowledge waiver of the Company, no other Person has violated or breached in any material respectwhich would have, or committed any default in any material respect under, any Company Material Contract; (iii) to the knowledge of the Company, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) would reasonably be expected to: (A) result to have, individually or in the aggregate, a violation or breach in any material respect of any Company Material Contract; (B) give any Person the right to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received any written notice (or, to the knowledge of the Company, any other communication) regarding any actual or possible material violation or breach of, or material default under, any Company Material ContractAdverse Effect.
Appears in 1 contract
Sources: Merger Agreement (PlayAGS, Inc.)
Contracts. (a) Part 2.10(a) of the Except as disclosed on Schedule 3.16, no Company Disclosure Schedule identifies, as of the date of this Agreement, each Company Contract that constitutes is bound by or a Company Material Contract and which remains in effect as of the date hereof and under which a Tetraphase Company has remaining material rights or obligations. For purposes of this Agreement, each of the following Company Contracts shall be deemed to constitute a “Company Material Contract”party to:
(i) any Contract in effect and which has been filed Contractual Obligation (or is required to be filedgroup of related Contractual Obligations) by for the Company as an exhibit pursuant to Item 601(b)(10) purchase, sale, construction, repair or maintenance of Regulation S-K under the Exchange Actinventory, raw materials, commodities, supplies, goods, products, equipment or other property, or that for the furnishing or receipt of services, in each case, the performance of which will extend over a period of more than one year or which provides for (or would be required reasonably expected to be disclosed under Item 404 involve) annual payments to or by a Company in excess of Regulation S-K under the Exchange Act$150,000 or aggregate payments to or by a Company in excess of $250,000;
(ii) any Contract: Contractual Obligation relating to the acquisition or disposition by any Company of (A) constituting a Company Employee Agreement under which annual salary any business (whether by merger, consolidation or other stated annual cash compensation exceeds $200,000; business combination, sale of securities, sale of assets or otherwise) or (B) pursuant to which any of the Tetraphase Companies is or may become obligated to make any severance, termination or similar payment to any Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment material Asset (other than payments constituting bonuses or commissions paid sales of inventory in the ordinary course Ordinary Course of businessBusiness); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) above;
(iii) any Contract with any labor union Contractual Obligation concerning or any collective bargaining agreement consisting of a partnership, limited liability company, joint venture or similar Contract for the benefit of any Company Associate(s)agreement;
(iv) each material Contract pursuant any Contractual Obligation under which a Company has permitted any Asset to which any Intellectual Property Rights or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company become Encumbered (other than non-exclusive licenses to unmodified commercially available third party softwareby a Permitted Lien);
(v) each material Contract pursuant to any Contractual Obligation (A) under which a Company has created, incurred, assumed or guaranteed any Debt, (B) under which any Intellectual Property Rights other Person has guaranteed any Debt of a Company or Intellectual Property incorporated into (C) under which any Company Product are licensed by other Person has issued to any Tetraphase Companyof the Companies a performance bond or other guarantee to guarantee satisfactory performance of any obligation of the Companies;
(vi) any material Contract Contractual Obligation containing covenants that in any way purport to (A) restrict any business activity (including the solicitation, hiring or engagement of any Person or the solicitation of any customer) of any Company or any Affiliate thereof or (B) limit the freedom of any Company or any Affiliate thereof to engage in any line of business or compete with any distributor and any material contract with any other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in the ordinary course of businessPerson;
(vii) any material Contract (other than Contractual Obligation under which a Company is, or may become, obligated to incur any purchase order entered into in severance pay or compensation obligations that would become payable by reason of this Agreement or the ordinary course of business) with sole source or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of businessContemplated Transactions;
(viii) any Contract that provides for: (A) reimbursement of any Contractual Obligation under which a Company Associate foris, or advancement may, have any Liability to any Company Associate ofinvestment bank, legal broker, financial advisor, finder or other similar Person (including an obligation to pay any legal, accounting, brokerage, finder’s, or similar fees or other expenses associated expenses) in connection with any Legal Proceeding this Agreement or the defense thereof; or (B) indemnification of any Company AssociateContemplated Transactions;
(ix) any Contract (A) that restricts Contractual Obligation providing for the ability employment or consultancy of the Tetraphase Companies to compete in any business or with any Person in any geographical area; (B) in which the Company on a full-time, part-time, consulting or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions other basis or marketing otherwise providing compensation or distribution rights relating other benefits to any product officer, director, employee or product candidate; consultant (C) in which the other than a Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conductedPlan);
(x) any Contract incorporating material agency, dealer, distributor, sales representative, marketing or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or other similar obligation, other than Contracts entered into in the ordinary course of business or that do not deviate in any material respect from the standard forms of Contracts previously Made Available by the Company to ParentContractual Obligation;
(xi) any Contract providing for any currency hedgingoutstanding general or special powers of attorney executed by or on behalf of a Company;
(xii) any Contract requiring that any of the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposalContractual Obligation, or prior to entering into any discussions, agreement, arrangement or understanding other than Real Property Leases relating to the lease or license of any Acquisition TransactionAsset (and including all customer license and maintenance agreements);
(xiii) any Contract providing for Contractual Obligation under which a Company has advanced or loaned an amount to any of its Affiliates or employees other than in the lease or sublease Ordinary Course of Tetraphase Leased Real Property;Business; and
(xiv) any Contract that is other Contractual Obligation between a Government Contract;
Company, on the one hand, and Seller (xv) any Contract, not covered by another clause of this Section 2.10(aor Affiliate or Family Member thereof), that: (A) involved on the payment or delivery of cash or other consideration hand, that will continue in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2019; (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days effect after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company); and
(xvii) any Contract, the termination of which would have a Company Material Adverse EffectClosing. The Company Seller has delivered or Made Available (including by filing with the SEC) to Parent an Buyer accurate and complete copy copies of each Company Contract that constitutes a Company Material Contract written Contractual Obligation listed on Schedule 3.16, in each case, as of the date of this Agreement.
(b) Each Company Contract that constitutes a Company Material Contract is valid amended or otherwise modified and in full force and effect (except for Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period), and is enforceable in accordance with its terms, subject to: (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”)effect.
(c) Except as set forth in Part 2.10(c) of the Company Disclosure Schedule: (i) none of the Tetraphase Companies has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (ii) to the knowledge of the Company, no other Person has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (iii) to the knowledge of the Company, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) would reasonably be expected to: (A) result in a violation or breach in any material respect of any Company Material Contract; (B) give any Person the right to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received any written notice (or, to the knowledge of the Company, any other communication) regarding any actual or possible material violation or breach of, or material default under, any Company Material Contract.
Appears in 1 contract
Contracts. (a) Part 2.10(aExcept as described on Schedule 3.14(a) of the Company Disclosure Schedule identifiesor as specifically described on Schedules 3.12(a), (b) or (c), as of the date of this Agreement, each Company Contract that constitutes none of Seller or any Subsidiary is a Company Material Contract and which remains in effect as of the date hereof and under which a Tetraphase Company has remaining material rights party to any, written or obligations. For purposes of this Agreement, each of the following Company Contracts shall be deemed to constitute a “Company Material Contract”oral:
(i) contract or agreement containing covenants limiting the freedom of Seller or any Contract Subsidiary after the date hereof to engage in effect and which has been filed (any line of business in any geographic area or is required to be filed) by the Company as an exhibit pursuant compete with any Person, including limitations on Seller's freedom to Item 601(b)(10) of Regulation S-K under the Exchange Act, or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange Actenter into other contracts;
(ii) any Contract: contract, agreement or instrument (Aincluding take-or-pay or keep-well agreements) constituting a Company Employee Agreement under which annual salary or other stated annual cash compensation exceeds $200,000; (B1) pursuant to which any of the Tetraphase Companies is or may become obligated to make any severance, termination or similar payment to any Company Associate Seller or any spouseSubsidiary has incurred any Indebtedness, heir (2) any Person has directly or Representative indirectly guaranteed any Liabilities of Seller or a Subsidiary, or (3) Seller or a Subsidiary has directly or indirectly guaranteed any Liabilities of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) abovePerson;
(iii) mortgage, pledge, security agreement, deed of trust or other instrument creating or purporting to create a Lien (including with respect to properties acquired under conditional sales, capital leases or other title retention or security devices), other than any Contract mortgage, pledge, security agreement, deed of trust or other instrument creating or purporting to create a Lien on assets with any labor union or any collective bargaining agreement or similar Contract for the benefit of any Company Associate(s)an aggregate fair market value which does not exceed $50,000;
(iv) each material Contract pursuant to which contract, agreement or instrument providing for indemnification by Seller or a Subsidiary of any Intellectual Property Rights or Intellectual Property that has been incorporated into any Company Product and is licensed Person with respect to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software);
(v) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Company;
(vi) any material Contract with any distributor and any material contract with any other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(vii) any material Contract (Liabilities other than any purchase order entered into in the ordinary course of business) with sole source contract, agreement or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viii) any Contract that provides for: (A) reimbursement of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate;
(ix) any Contract (A) that restricts the ability of the Tetraphase Companies to compete in any business or with any Person in any geographical area; (B) in which the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;
(x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts instrument entered into in the ordinary course of business consistent with past practice;
(v) vendor allowance, merchandising, distribution or similar contract or agreement which provides for payments (or pursuant to which payments can reasonably be expected to be made) in excess of $100,000 during the term of the contract or agreement;
(vi) any partnership, joint venture, shareholders' or other similar contract or agreement with any Person;
(vii) contract, option, right of first refusal, purchase contract or other contractual right or agreement relating to the disposition or acquisition or leasing of any properties or assets (other than inventory) after the date hereof;
(viii) contract or agreement (other than this Agreement) that do not deviate (1) limits or contains restrictions on the ability of Seller or any Subsidiary to declare or pay dividends on, to make any other distribution in respect of or to issue or purchase, redeem or otherwise acquire its capital stock, to incur Indebtedness, to incur or suffer to exist any Lien, to change the lines of business in which it participates or engages or to engage in any material respect from the standard forms merger or business combination or (2) requires Seller or any Subsidiary to maintain specified financial ratios or levels of Contracts previously Made Available net worth or other indicia of financial condition;
(ix) contract or agreement which is terminable by the Company other party thereto, or gives such other party any right of amendment or acceleration or pursuant to Parentwhich Seller or any Subsidiary would lose any benefit under, upon a change of control or recapitalization of Seller or one of the Subsidiaries;
(x) power of attorney or similar instrument not made in the ordinary course of business consistent with past practice since December 31, 1994; and
(xi) any Contract providing contract or agreement which provides for any currency hedging;
payments (xiior pursuant to which payments can reasonably be expected to be made) any Contract requiring that any of after the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration in an amount or having a value date hereof in excess of $200,000 in the fiscal 100,000 during any one-year ending December 31, 2019; (B) requires by its terms the payment period or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in during the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) any material Contract that has a term of more than one year the contract or agreement and which may is not be terminated by a Tetraphase Company (without penalty in excess of $75,000otherwise listed on Schedules 3.03(c), 3.10(a), 3.12(a), 3.12(b), 3.12(c), 3.12(d), 3.14(a) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company); and
(xvii) any Contract, the termination of which would have a Company Material Adverse Effect. The Company has delivered or Made Available (including by filing with the SEC) to Parent an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as of the date of this Agreement3.19.
(b) Each Company Contract that constitutes a Company Material Contract is valid and in full force and effect (except for Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period), and is enforceable in accordance with its terms, subject to: (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”).
(c) Except as set forth in Part 2.10(c) of the Company Disclosure Schedule: on Schedule 3.14(b), neither Seller nor any Subsidiary is (i) none of the Tetraphase Companies has violated or breached in any material respectand, or committed any default in any material respect under, any Company Material Contract; (ii) to the knowledge Knowledge of the CompanySeller, no other Person has violated party is) in breach of or breached in default under any material respectcontract or agreement listed on Schedules 3.03(c), 3.10(a), 3.12(a), 3.12(b), 3.12(c), 3.12(d), 3.14(a) or committed any default in any material respect under3.19, any Company Material Contract; (iii) and, to the knowledge Knowledge of the CompanySeller, no event has occurredoccurred that, and no circumstance or condition exists, that (with or without notice or lapse of time) time or both, would result in a breach or a default thereunder, in each case except for breaches, defaults or events which, individually or in the aggregate, have not had or would not reasonably be expected to: (A) result to have a Material Adverse Effect. Seller has delivered to Buyer true and complete copies of all the written contracts or agreements described on the Schedules listed in a violation or breach in any material respect the preceding sentence and written summaries of any Company Material Contract; (B) give oral contract or agreement described on any Person the right to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received any written notice (or, to the knowledge of the Company, any other communication) regarding any actual or possible material violation or breach of, or material default under, any Company Material Contractsuch Schedule.
Appears in 1 contract
Contracts. (a) Part 2.10(aSet forth in Section 3.13(a) of the Company WPC Disclosure Schedule identifies, as is a list of the date of this Agreement, each Company Contract that constitutes a Company Material Contract and which remains in effect as of the date hereof and under which a Tetraphase Company has remaining material rights or obligations. For purposes of this Agreement, each of the following Company Contracts shall be deemed to constitute which WPC, any of its Subsidiaries or any Joint Venture is a “Company Material Contract”party:
(i) any Contract in effect and which has been filed (or is required to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Act, or that would be required to be disclosed filed as an exhibit to a Registration Statement on Form S-3 under Item 404 of Regulation Sthe Securities Act and an Annual Report on Form 10-K under the Exchange ActAct if such registration statement or report was filed by WPC with the SEC on the date hereof;
(ii) any Contract: (A) constituting a Company Employee Agreement under which annual salary Contract that purports to limit, curtail or other stated annual cash compensation exceeds $200,000; (B) pursuant to which restrict the ability of WPC, any of the Tetraphase Companies is its existing or may become obligated to make any severance, termination future Subsidiaries or similar payment to any Company Associate Affiliates or any spouseJoint Venture to compete in any geographic area or line of business or restrict the Persons to whom WPC, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is its existing or future Subsidiaries or Affiliates or any Joint Venture may become obligated to make any bonus sell products or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) abovedeliver services;
(iii) any Contract with any labor union or any collective bargaining agreement or similar Contract for the benefit of any Company Associate(s)partnership agreement, and all Joint Venture Documents;
(iv) each any Contract for the acquisition, sale or lease of material Contract pursuant to properties or assets (by merger, purchase or sale of stock or assets or otherwise) (A) entered into since August 1, 2003 or (B) currently in effect, which any Intellectual Property Rights requires ongoing performance or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software);
(v) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Company;
(vi) any material Contract with any distributor and any material contract with any other reseller or sales representativeimposes ongoing obligations, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements excluding purchase orders for inventory entered into in the ordinary course of business;
(v) any (A) material Contract with any Governmental Authority or (B) contract with any director or officer of WPC, any of its Subsidiaries or Affiliates or any Joint Venture;
(vi) any loan or credit agreement, mortgage, indenture, note or other Contract or instrument evidencing indebtedness for borrowed money by WPC, any of its Subsidiaries or any Joint Venture or any Contract or instrument pursuant to which indebtedness for borrowed money may be incurred or is guaranteed by WPC, any of its Subsidiaries or any Joint Venture;
(vii) any financial derivatives master agreement or confirmation, or futures account opening agreements and/or brokerage statements, evidencing financial hedging or similar trading activities;
(viii) any voting agreement or registration rights agreement;
(ix) any mortgage, pledge, security agreement, deed of trust or other Contract granting a Lien on any material property or assets of WPC, any of its Subsidiaries or any Joint Venture;
(x) any customer, client or supply Contract (other than any a purchase order entered into received in the ordinary course of business) with sole source or single source suppliers to any Tetraphase Company that involved consideration in fiscal year 2006 in excess of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viii) any Contract that provides for: (A) reimbursement of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate;
(ix) any Contract (A) that restricts the ability of the Tetraphase Companies to compete in any business or with any Person in any geographical area; (B) in which the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;
(x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into in the ordinary course of business $2,000,000 or that do not deviate is reasonably likely to involve consideration in any material respect from the standard forms fiscal year 2007 in excess of Contracts previously Made Available by the Company to Parent$2,000,000;
(xi) any Contract providing for any currency hedging(other than customer, client or supply Contracts or purchase orders received in the ordinary course of business) that involves consideration (whether or not measured in cash) of greater than $2,000,000;
(xii) any Contract requiring that any of the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transactioncollective bargaining agreements;
(xiii) any Contract providing for the lease agreement pursuant to which it has agreed to a “standstill” or sublease of Tetraphase Leased Real Propertysimilar obligation;
(xiv) to the extent material to the business or financial condition of WPC and its Subsidiaries, taken as a whole, any (A) lease or rental Contract, (B) product design or development Contract, (C) consulting Contract, (D) indemnification Contract, (E) license or royalty Contract, (F) merchandising, sales representative or distribution Contract that is or (G) Contract granting a Government Contract;right of first refusal or first negotiation; and
(xv) any Contractcommitment or agreement to enter into any of the foregoing; (the Contracts and other documents required to be listed on Section 3.13(a) of the WPC Disclosure Schedule, not covered by another clause together with any and all other Contracts of this such type entered into in accordance with Section 2.10(a5.2(a), that: (A) involved the payment each a “WPC Material Contract”). WPC has heretofore made available to Esmark correct and complete copies of each Material Contract or delivery of cash or other consideration in an amount or having a value in excess of $200,000 summaries in the fiscal year ending December 31, 2019; (B) requires by its terms the payment or delivery case of cash or other consideration customer Material Contracts in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company); and
(xvii) any Contract, the termination of which would have a Company Material Adverse Effect. The Company has delivered or Made Available (including by filing with the SEC) to Parent an accurate and complete copy of each Company Contract that constitutes a Company Material Contract existence as of the date of this Agreementhereof, together with any and all amendments and supplements thereto and material “side letters” and similar documentation relating thereto.
(b) Each Company Contract that constitutes a Company Except as separately identified in Section 3.13(b) of the WPC Disclosure Schedule, (i) each of the Material Contract Contracts is valid valid, binding and in full force and effect (except for Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period), and is enforceable in accordance with its termsterms by WPC, its Subsidiaries and the Joint Venture party thereto, subject to: (i) laws of general application relating to bankruptcy, insolvency the Bankruptcy and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”).
(c) Except as set forth in Part 2.10(c) of the Company Disclosure Schedule: (i) none of the Tetraphase Companies has violated or breached in any material respect, or committed any default in any material respect under, any Company Material ContractEquity Exception; (ii) to no approval, consent or waiver of any Person is needed in order that any Material Contract continue in full force and effect following the knowledge consummation of the Company, no other Person has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contracttransactions contemplated hereby; (iii) none of WPC, any of its Subsidiaries or any Joint Venture is in default under any Material Contract, nor to the knowledge Knowledge of the CompanyWPC does any condition exist that, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) time or both, would constitute a default thereunder by WPC and its Subsidiaries and the Joint Ventures party thereto, except for such defaults as, individually or in the aggregate, have not had and would not reasonably be expected to: to have a WPC Material Adverse Effect; (Aiv) result to the Knowledge of WPC, no other party to any Material Contract is in default thereunder, nor does any condition exist that with notice or lapse of time or both would constitute a violation default by any such other party thereunder, except for such defaults as, individually or breach in the aggregate, have not had and would not reasonably be expected to have a WPC Material Adverse Effect; and (v) none of WPC, any material respect of its Subsidiaries or any Company Joint Venture has received any notice of termination or cancellation under any Material Contract; (B) give , received any Person the right to declare a notice of breach or default in any material respect under any Company Material Contract; (C) give Contract which breach has not been cured, or granted to any Person the right to accelerate in third party any material respect the maturity rights, adverse or performance otherwise, that would constitute a breach of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received any written notice (or, to the knowledge of the Company, any other communication) regarding any actual or possible material violation or breach of, or material default under, any Company Material Contract.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Wheeling Pittsburgh Corp /De/)
Contracts. (a) Part 2.10(aSet forth in Section 3.13(a) of the Company Disclosure Schedule identifiesis a list of each Contract that would be required to be filed as an exhibit to a Registration Statement on Form S-1 under the Securities Act or an Annual Report on Form 10-K under the Exchange Act if such registration statement or report was filed by the Company with the SEC on the date of this Agreement and which has not previously been filed as an exhibit to the Filed Company SEC Documents. Also set forth in Section 3.13(a) of the Company Disclosure Schedule is a list of each of the following to which the Company or any of its Subsidiaries is a party which has not previously been filed as an exhibit to the Filed Company SEC Documents any:
(i) Contract that contains a provision capable of being invoked that (A) is not terminable for convenience upon reasonable notice at no charge that purports to materially limit, curtail, restrict the ability of the Company or any of its existing or future Subsidiaries or Affiliates to compete in any geographic area or line of business or restrict the Persons with whom it and existing or future Subsidiaries or Affiliates can compete or to whom it or its existing or future Subsidiaries or Affiliates can sell products or deliver services, (B) is not terminable for convenience upon reasonable notice at no charge that purports to grant any exclusivity, right of first refusal, right of first negotiation, most favored nation status or similar rights that materially restrict the Company or any of its Subsidiaries, or (C) imposes any liquidated damages or penalty clauses on the Company or any of its Subsidiaries, offsets from, or credits to, any other Person (other than service level credits provided pursuant to agreements with customers entered into in the ordinary course of business consistent with past practice);
(ii) Contract with any director, officer or other Affiliate of the Company other than Contracts under which the Company and its Subsidiaries have no further liabilities or obligations and no continuing rights;
(iii) loan or credit agreement, mortgage, indenture, note or other Contract or instrument evidencing indebtedness for borrowed money by the Company or any of its Subsidiaries or any Contract or instrument pursuant to which indebtedness for borrowed money may be incurred or is guaranteed by the Company or any of its Subsidiaries or by which they may be obligated for the liabilities of another person;
(iv) financial derivatives master agreement or confirmation or other agreement evidencing financial hedging or similar trading activities, other than Contracts relating to currency ▇▇▇▇▇▇ or derivatives entered into in the ordinary course of business consistent with past practice;
(v) voting agreement;
(vi) except for Contracts listed in clauses (iii) and (iv) of Section 3.3 of the Company Disclosure Schedule, mortgage, pledge, security agreement, deed of trust or other Contract granting a Lien on any material property or assets of the Company or any of its Subsidiaries;
(vii) Contract with a supplier or provider of products or services that has required payments by the Company or any of its Subsidiaries of consideration (whether or not measured in cash) in the fiscal year 2007 or that is reasonably likely, based on the Company’s past experience, to require such payment of consideration in fiscal year 2008 (whether or not measured in cash) of greater than $500,000 but excluding any Contract that requires payment by the Company or any of its Subsidiaries on a time and materials basis;
(viii) Contract with a top thirty (30) customer of the Company measured by operating revenue received by the Company and its Subsidiaries during the eighteen (18) month period prior to the date hereof, including Contracts with any such customer involving software license, maintenance and/or services;
(ix) Contract which makes up the top ten (10) services agreement (excluding any fixed price services agreement) of the Company measured by operating revenue received by the Company and its Subsidiaries during the eighteen (18) month period prior to the date hereof;
(x) Contract which makes up the top ten (10) fixed price services agreement (excluding any services agreement required to be listed pursuant to Section 3.13(a)(ix)) of the Company and its Subsidiaries) of the Company measured by operating revenue received by the Company and its Subsidiaries during the eighteen (18) month period prior to the date hereof;
(xi) Contract which makes up the top eighty-five percent (85%) of all active subscription agreements for the Company’s Freight Matrix products measured by revenue received by the Company and its Subsidiaries during the eighteen (18) month period prior to the date hereof;
(xii) “standstill” or similar agreement restricting the Company;
(xiii) agreement containing a provision capable of being invoked which relates to (A) the granting to the Company or any of its Subsidiaries of any license in or to any Intellectual Property owned by a third party that is used in any current standard or other product of the Company made generally available by the Company or is otherwise material to the Company, or (B) the granting by the Company or any of its Subsidiaries of any license to a third party in or to any Intellectual Property that are material to the Company, (except, in the case of each of clause (A) and clause (B), for any (1) licenses for commercial off-the-shelf software, (2) licenses with terms of use or service posted on a web site, (3) licenses for third party software generally available to the public, and (4) non-negotiated licenses of third party Intellectual Property that is embedded in equipment or fixtures and are used by the Company or any of its Subsidiaries for internal purposes only; and, in the case of clause (B), non-exclusive licenses to customers of the Company and its Subsidiaries in the normal and ordinary course of the day-to-day business of the Company and its Subsidiaries consistent with past practice);
(xiv) any agreement granting by the Company or any of its Subsidiaries any license to a third party to use any source code that is part of the Company Intellectual Property (except source code escrow arrangements for the benefit of customers and related agreements with customers of the Company and its Subsidiaries in the normal and ordinary course of the day-to-day business of the Company and its Subsidiaries consistent with past practice;
(xv) any reseller, distribution, alliance, collaboration, joint marketing or similar agreements that are material to the Company and its Subsidiaries;
(xvi) Contract (1) providing for (or imposing any material ongoing indemnification or other obligations of the Company or any of its Subsidiaries in connection with) the disposition or acquisition by the Company or any of its Subsidiaries of (A) any corporation, partnership or other entity or business or (B) any material amount of assets or rights outside the ordinary course of business consistent with past practice or (2) pursuant to which the Company or any of its Subsidiaries has any material ownership interest in any other person or other business enterprise, other than contracts or agreements under which the Company and its Subsidiaries have no further liabilities or obligations and no continuing rights;
(xvii) settlement agreement, other than (A) releases immaterial in nature or amount entered into with former employees or independent contractors of the Company in the ordinary course of business consistent with past practice in connection with the routine cessation of such employee’s or independent contractor’s employment with the Company, (B) settlement agreements for cash only (which has been paid) and does not exceed $100,000 as to such settlement or (C) settlement agreements entered into more than three years prior to the date of this Agreement under which none of the Company or its Subsidiaries have any continuing obligations, liabilities, or rights (excluding releases); or
(xviii) commitment or agreement to enter into any of the foregoing (the Contracts and other documents required to be listed on Section 3.13(a) of the Company Disclosure Schedule, together with any and all other Contracts of such type entered into in accordance with Section 5.2 and the Contracts filed as exhibits to the Filed Company SEC Documents, each a “Material Contract”). The Company has heretofore made available to Parent complete and correct copies of each Material Contract in existence as of the date of this Agreement, each Company Contract that constitutes a Company Material Contract and which remains in effect as of the date hereof and under which a Tetraphase Company has remaining material rights or obligations. For purposes of this Agreement, each of the following Company Contracts shall be deemed to constitute a “Company Material Contract”:
(i) any Contract in effect and which has been filed (or is required to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Act, or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange Act;
(ii) any Contract: (A) constituting a Company Employee Agreement under which annual salary or other stated annual cash compensation exceeds $200,000; (B) pursuant to which any of the Tetraphase Companies is or may become obligated to make any severance, termination or similar payment to any Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) above;
(iii) any Contract together with any labor union or any collective bargaining agreement or and all amendments and supplements thereto and material “side letters” and similar Contract for the benefit of any Company Associate(s);
(iv) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software);
(v) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Company;
(vi) any material Contract with any distributor and any material contract with any other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(vii) any material Contract (other than any purchase order entered into in the ordinary course of business) with sole source or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viii) any Contract that provides for: (A) reimbursement of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate;
(ix) any Contract (A) that restricts the ability of the Tetraphase Companies to compete in any business or with any Person in any geographical area; (B) in which the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights documentation relating to any product or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;
(x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into in the ordinary course of business or that do not deviate in any material respect from the standard forms of Contracts previously Made Available by the Company to Parent;
(xi) any Contract providing for any currency hedging;
(xii) any Contract requiring that any of the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2019; (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company); and
(xvii) any Contract, the termination of which would have a Company Material Adverse Effect. The Company has delivered or Made Available (including by filing with the SEC) to Parent an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as of the date of this Agreementthereto.
(b) Each Company Contract that constitutes a Company of the Material Contract Contracts is valid valid, binding and in full force and effect (except for Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period), and is enforceable in accordance with its termsterms by the Company and its Subsidiaries party thereto, subject to: (i) laws of general application relating to bankruptcy, insolvency the Bankruptcy and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”).
(c) Except as set forth in Part 2.10(c) of Equity Exception. Neither the Company Disclosure Schedule: (i) none nor any of the Tetraphase Companies has violated or breached its Subsidiaries is in material default under any material respect, or committed any default in any material respect under, any Company Material Contract; (ii) to , nor does any condition exist that, with notice or lapse of time or both, would constitute a material default thereunder by the knowledge Company or its Subsidiaries party thereto. To the Knowledge of the Company, no other Person has violated or breached party to any Material Contract is in material default thereunder, nor does any material respect, or committed any default in any material respect under, any Company Material Contract; (iii) to the knowledge of the Company, no event has occurred, and no circumstance or condition exists, exist that (with or without notice or lapse of time) time or both would reasonably be expected to: (A) result in constitute a violation or breach in material default by any material respect such other party thereunder. Neither the Company nor any of any Company Material Contract; (B) give any Person the right to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies its Subsidiaries has received any written notice (or, to the knowledge of the Company, termination or cancellation under any other communication) regarding Material Contract or received any actual notice of breach or possible material violation or default under any Material Contract which breach of, or material default under, any Company Material Contracthas not been cured.
Appears in 1 contract
Contracts. (a) Part 2.10(a) 2.8 of the Company Disclosure Schedule identifies, as by reference to the applicable sub-section below (or is otherwise reasonably apparent (without the necessity of the date of this Agreementfurther investigation) with respect to duplicative or repetitive sub-sections below), each Company Contract that constitutes a Company Material Significant Contract and which remains in effect as of the date hereof and under which a Tetraphase Company has remaining material rights or obligationsof this Agreement. For purposes of this Agreement, each of the following Company Contracts shall be deemed to constitute a “Company Material Significant Contract”:):
(i) any Contract in effect and which has been filed (or is required to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Act, or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange Act;
(ii) any Contract: (A) constituting a Company Employee Agreement under which annual salary or other stated annual cash compensation exceeds $200,000; (B) pursuant to which the Company or any of the Tetraphase Companies is or may become obligated to make any severance, termination or similar payment to any Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies its Subsidiaries is or may become obligated to make any bonus severance, termination or similar payment in excess of $25,000 to any Company Employee or consultant, including, any contract that requires the Company to make any payment to a Company Employee or consultant on account of the Merger or any transaction contemplated by this Agreement;
(other than payments constituting bonuses ii) any Contract or commissions paid in plan (including any stock option, stock purchase and/or stock bonus plan) under which the ordinary course of business); Company or (D) pursuant to which any of the Tetraphase Companies its Subsidiaries is or may become obligated to grant or accelerate the vesting of, sell or otherwise modify, issue any stock option, restricted stock, stock appreciation right shares of Company Common Stock or Company Preferred Stock or any other equity interest in securities of the Company or any of its Subsidiaries or to repurchase or redeem any such outstanding securities, except for the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) aboveCompany Option Plans, the Company Options and the Company Warrants;
(iii) any Contract with any labor union of the Company or any collective bargaining agreement or similar Contract for the benefit of any Company Associate(s);
(iv) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software);
(v) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Company;
(vi) any material Contract with any distributor and any material contract with any other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(vii) any material Contract (other than any purchase order entered into in the ordinary course of business) with sole source or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viii) any Contract its Subsidiaries that provides for: (A) reimbursement of any Company Associate Employee for, or advancement to any Company Associate Employee of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company AssociateEmployee;
(ixiv) any Contract imposing or purporting to impose any material restriction on the right or ability of the Company or any of its Subsidiaries: (A) that restricts the ability of the Tetraphase Companies to compete with any other Person or in any line of business or with any Person in any geographical areageographic area or during any period of time; (B) in which to acquire any product or other asset or any services from any other Person; (C) to develop, sell, supply, distribute, offer, support or service any product or any technology or other asset to or for any other Person; (D) to perform services for any other Person; or (E) to transact business with any other Person;
(v) any Contract of the Company or any Tetraphase Company has granted development rightsof its Subsidiaries evidencing indebtedness for money borrowed or the guarantee, “most favored nation” pricing provisions support or marketing or distribution rights relating to assumption of the indebtedness of any product or product candidate; other Person;
(Cvi) in which any Contract of the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods its Subsidiaries relating to any product the purchase of real property or product candidate; to the lease or (D) which provides for “exclusivity” sublease of Leased Real Property, other than leases or any similar requirement subleases that do not involve aggregate payments in favor excess of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect $250,000 over the conduct 12-month period commencing on the date of the business of the Tetraphase Companies, taken as a whole, as currently conductedthis Agreement;
(xvii) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into purchase orders issued in the ordinary course of business or that do not deviate in business, any material respect from the standard forms other Contract of Contracts previously Made Available by the Company or any of its Subsidiaries not listed in response to Parent;
(xi) any Contract providing for any currency hedging;
(xii) any Contract requiring that any of the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause clauses of this Section 2.10(a), that: (A2.8(a) involved that involves the payment or delivery receipt of cash or other consideration in an amount or having a value in excess of $200,000 the past fiscal year, or aggregate payments in the current fiscal year ending December 31through the date of this Agreement, 2019; (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 250,000.
(viii) any Contract of the Company or any of its Subsidiaries with any investment banker, broker, advisor or similar party, or any accountant, legal counsel or other Person retained by the Company, in connection with this Agreement and the transactions contemplated hereby;
(ix) any Contract relating to the disposition or acquisition by the Company or any of its Subsidiaries of a material amount of assets or any material ownership interest in any other Person or business unit or enterprise;
(x) any Contract between the Company or any of its Subsidiaries and any customer, reseller or distributor who, in the six (6) fiscal year ending December 31quarters ended September 30, 2020; 2008, was one of the twenty-five (C25) involved largest sources of revenues for the performance Company and its Subsidiaries, based on amounts paid or payable;
(xi) any Contract between the Company or any of services having a value in excess of $200,000 its Subsidiaries and any supplier who, in the six (6) fiscal year quarters ended December 31September 30, 2019; 2008, was one of the fifteen (15) largest suppliers of products and/or services to the Company and its Subsidiaries, based on amounts paid or payable;
(Dxii) requires (A) any Contract between the Company or any of its Subsidiaries and (1) any Significant Customer (2) any Significant Supplier, and (B) any Contract with any dealer, distributor, OEM (original equipment manufacturer), reseller, sales representative, or developer under which the Company or any of its Subsidiaries have continuing material obligations to jointly market any product, technology or service, or any material agreement pursuant to which the Company or any of its Subsidiaries have continuing material obligations to jointly develop any Intellectual Property or Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its terms Subsidiaries;
(xiii) any Contract of the performance Company or any of services having a value in excess its Subsidiaries of $200,000 indemnification or warranty (other than under customer, reseller, vendor, supply, license, referral or service provider Contracts entered into by the Company or any of its Subsidiaries in the fiscal year ending December 31ordinary course of business);
(xiv) any broker, 2020exclusive dealing or exclusivity, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing, consulting and advertising Contract or other agreement to which the Company or any Subsidiary is a party;
(xv) all Contracts of the Company or any of its Subsidiaries to manufacture for, supply to or distribute to any other Person any products, services or components (other than under customer or reseller Contracts entered into by the Company or any of its Subsidiaries in the ordinary course of business);
(xvi) all Contracts of the Company or any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess its Subsidiaries related to or regarding the performance of $75,000) within 120 days after the delivery consulting, advisory or other services or work of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into any type by any Tetraphase Company); andother Person that resulted or were expected to result in the creation of any Company Used IP;
(xvii) any Contract, Contract filed or required to be filed as an exhibit to the Company’s Annual Report on Form 10-K or disclosed or required to be disclosed by the Company in a Current Report on Form 8-K (provided that Part 2.8 of the Company Disclosure Schedule shall not be required to include a listing of such filed Contracts);
(xviii) any Contract of the Company or any of its Subsidiaries with any Governmental Body; and
(xix) any other Contract of the Company or any of its Subsidiaries the termination or breach of which which, would be reasonably expected to have a Company Material Adverse Effect. Effect and is not disclosed pursuant to any other sub-section of this Section 2.8(a).
(b) The Company has delivered or Made Available (including by filing with the SEC) made available to Parent an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as of the date of this AgreementSignificant Contract.
(bc) Each Company Contract that constitutes a Company Material Significant Contract is valid and in full force and effect effect, except, in each case, as would not reasonably be expected to have a Company Material Adverse Effect.
(except for Contracts that are expiredd) As of the date of this Agreement, terminatedexcept, and/or in each case, as would not renewed during the Pre-Closing Period), and is enforceable in accordance with its terms, subject toreasonably be expected to have a Company Material Adverse Effect: (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”).
(c) Except as set forth in Part 2.10(c) of neither the Company Disclosure Schedule: (i) none nor any of the Tetraphase Companies its Subsidiaries has violated or breached in any material respectbreached, or committed any default in any material respect under, any Company Material Significant Contract; (ii) to the knowledge Knowledge of the Company, no other Person has violated or breached in any material respectbreached, or committed any default in any material respect under, any Company Material Significant Contract; (iii) to the knowledge Knowledge of the Company, no event has occurredoccurred and is continuing, and no circumstance or condition exists, that (with or without notice or lapse of time) would reasonably be expected to: (A) result in a violation or breach in of any material respect of the provisions of any Company Material Significant Contract; (B) give any Person the right to declare a default in any material respect under any Company Material Significant Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Significant Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Significant Contract; and (iv) between December 31since January 1, 2018 and 2008, neither the date Company nor any of this Agreement, none of the Tetraphase Companies its Subsidiaries has received any written notice (or, to the knowledge of the Company, any other communication) regarding any actual or possible material violation or breach of, or material default under, any Company Material Significant Contract.
Appears in 1 contract
Sources: Merger Agreement (Transmeta Corp)
Contracts. (a) Part 2.10(a) 2.9 of the Company Disclosure Schedule identifies, Letter identifies each Acquired Company Contract in effect as of the date of this Agreement, each Company Contract Agreement that constitutes a Company "Material Contract and which remains in effect as of the date hereof and under which a Tetraphase Company has remaining material rights or obligations. Contract." For purposes of this Agreement, each of the following Company Contracts shall be deemed to constitute a “Company Material Contract”"MATERIAL CONTRACT":
(i) any Contract in effect and which has been filed (or is required to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Act, or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange Act;
(ii) any Contract: (A) constituting a Company Employee Agreement under which annual salary any Contract or outstanding offer relating to the employment of, or the performance of services by, any employee (other stated annual cash compensation exceeds $200,000; than Contracts that (1) provide for "at will" employment and (2) do not provide for severance, termination or similar benefits or acceleration of stock options other than in accordance with the terms of the Company's stock option plans and severance plans previously provided to Parent), and (B) any Contract pursuant to which any of the Tetraphase Acquired Companies is or may become obligated required to make any severance, termination or similar payment to any Company Associate current or any spouse, heir former employee or Representative director of any Company Associate; of the Acquired Companies, other than in accordance with the terms of the Company's stock option plans and severance plans previously provided to Parent;
(Cii) any Contract (A) relating to the acquisition, transfer, development, sharing or license of any Proprietary Asset (except for any Contract pursuant to which (1) any Proprietary Asset is licensed to the Acquired Companies under any third party software license generally available to the public, or (2) any Proprietary Asset is licensed by any of the Acquired Companies to any Person on a non-exclusive basis), or (B) pursuant to which any Acquired Company Proprietary Asset has been licensed or otherwise made available to any Person that constitutes one of the Tetraphase Companies is or may become obligated to make any bonus or similar payment top 20 customers (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (Dbased on revenues) pursuant to which any of the Tetraphase Acquired Companies is during the fiscal year ended June 30, 1999 or may become obligated to grant or accelerate during the vesting ofsix months ended December 31, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) above1999;
(iii) any Contract with any labor union or any collective bargaining agreement or similar Contract which provides for the benefit indemnification of any Company Associate(s)officer, director, employee or agent of any of the Acquired Companies;
(iv) each material any Contract pursuant to which imposing any Intellectual Property Rights restriction on the right or Intellectual Property that has been incorporated into ability of any Company Product and is licensed to any Tetraphase Acquired Company (A) to compete in any market or geographic area with any other than non-exclusive licenses Person, (B) to unmodified commercially available third party software)acquire any product or other asset or any services from any other Person, (C) to solicit, hire or retain any Person as an employee, consultant or independent contractor, (D) to develop, sell, supply, distribute, offer, support or service any product or any technology or other asset to or for any other Person, (E) to perform services for any other Person, or (F) to transact business or deal in any other manner with any other Person;
(v) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Company;
(vi) any material Contract with any distributor and any material contract with any other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(vii) any material Contract (other than any purchase order entered into in the ordinary course of business) with sole source or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viii) any Contract that provides for: (A) reimbursement of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate;
(ix) any Contract (A) that restricts the ability of the Tetraphase Companies to compete in any business or with any Person in any geographical area; (B) in which the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product the acquisition, issuance, voting, registration, sale or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor transfer of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;
(x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into in the ordinary course of business or that do not deviate in any material respect from the standard forms of Contracts previously Made Available by the Company to Parent;
(xi) any Contract providing for any currency hedging;
(xii) any Contract requiring that any of the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2019; (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company securities (other than confidentiality Company Options or nondisclosure agreements entered into by any Tetraphase Company); and
(xvii) any Contract, the termination of which would have a Company Material Adverse Effect. The Company has delivered or Made Available (including by filing with the SEC) to Parent an accurate and complete copy of each Company Contract that constitutes a Company Material Contract Warrants outstanding as of the date of this Agreement.
(b) Each Company Contract that constitutes a Company Material Contract is valid and in full force and effect (except for Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period), and is enforceable in accordance with its terms, subject to: (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”).
(c) Except as set forth in Part 2.10(c) of the Company Disclosure Schedule: (i) none of the Tetraphase Companies has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (ii) to the knowledge of the Company, no other Person has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (iii) to the knowledge of the Company, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) would reasonably be expected to: (A) result in a violation or breach in any material respect of any Company Material Contract; (B) give providing any Person the with any preemptive right, right to declare a default in of participation, right of maintenance or any material similar right with respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received any written notice (or, to the knowledge of the Company, any other communication) regarding any actual or possible material violation or breach of, or material default under, any Company Material Contract.to
Appears in 1 contract
Sources: Merger Agreement (Act Networks Inc)
Contracts. (a) Part 2.10(aExcept as set forth on Schedule 3.10(a) of the Company Disclosure Schedule identifies, as of the date of this Agreement, each Company Contract that constitutes a Company Material Contract and (which remains in effect as of the date hereof and under which a Tetraphase Company has remaining material rights or obligations. For purposes of this Agreement, specifically identifies by subsection each of the following Contracts), no Acquired Company Contracts shall be deemed to constitute is a “Company Material Contract”party to, or bound by, any:
(i) collective bargaining agreement or other Contract with any Contract in effect and which has been filed (or is required to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Act, or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange Actlabor union;
(ii) any Contract: Contract that (Ai) constituting is an employment agreement that is not terminable by such Acquired Company on an “at will” basis, (ii) provides for a Company Employee Agreement severance obligation or a deferred compensation obligation, (iii) provides for a payment, benefit or obligation in connection with the transactions contemplated under which annual salary or other stated annual cash compensation exceeds $200,000; (B) pursuant to which any of the Tetraphase Companies is or may become obligated to make any severancethis Agreement, termination or similar payment to any Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (Div) pursuant to which any is a Contract with an independent contractor or consultant in excess of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) above$10,000;
(iii) Contract relating to Indebtedness or to mortgaging, pledging or otherwise placing a Lien on any Contract with any labor union of the assets or any collective bargaining agreement or similar Contract for the benefit Equity Interests of any Company Associate(s)such Acquired Company;
(iv) each Intellectual Property Rights Contracts: (A) whereby such Acquired Company is granted a right or license to the Intellectual Property Rights of any other Person that is material Contract pursuant to which the conduct of the Acquired Company’s business, (but excluding any licenses for unmodified, commercially available off-the-shelf software); (B) whereby such Acquired Company grants to any other Person any rights in such Acquired Company’s Intellectual Property Rights, but excluding non-exclusive licenses granted in the Ordinary Course of Business; or (C) whereby such Acquired Company is otherwise restricted in the ability to use, enforce, or disclose any Intellectual Property Rights or Intellectual Property that has been incorporated into in any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software)material way, including without limitation, settlement agreements;
(v) each material Contract pursuant to under which such Acquired Company is lessee of or holds or operates any Intellectual Property Rights property, real or Intellectual Property incorporated into any Company Product are licensed personal, owned by any Tetraphase Companyother Person providing for lease payments in excess of $10,000 per year;
(vi) Contract under which such Acquired Company is lessor of or permits any material Contract with third party to hold or operate any distributor and any material contract with any other reseller property, real or sales representativepersonal, owned or controlled by such Acquired Company providing for lease payments in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in the ordinary course excess of business$25,000 per year;
(vii) any material Contract (other than any purchase order entered into broker, distributor, vendor, customer, supplier or maintenance Contracts which involve consideration in the ordinary course excess of business) with sole source or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business$25,000 per year;
(viii) any Contract that provides for: (A) reimbursement in excess of any $25,000 per year and not terminable by such Acquired Company Associate for, upon 90 days’ or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associateless notice without penalty;
(ix) any Contract (A) that which prohibits or otherwise limits or restricts such Acquired Company from freely engaging in business anywhere in the ability of the Tetraphase Companies to compete in any business or with any Person in any geographical area; world, (B) in which the Company contains any minimum requirements or most-favored nations provision, (C) which grants any Tetraphase Company has granted development rights, other Person “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidate; (C) in which the Company status or any Tetraphase Company has agreed to purchase a minimum quantity type of goods relating to any product or product candidate; or special discount rights, (D) which provides for “contains any provision with respect to exclusivity” , and (E) which limits or purports to limit the right of such Acquired Company to sell to or purchase from any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conductedPerson;
(x) Contract which prohibits such Acquired Company and/or its officers, directors, managers, equity owners or employees, in each case in their capacity as such, from soliciting customers or suppliers or soliciting or hiring employees of any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into in the ordinary course of business or that do not deviate in any material respect from the standard forms of Contracts previously Made Available by the Company to ParentPerson;
(xi) any warranty Contract providing for any currency hedgingwith respect to such Acquired Company’s services or its products sold, leased or licensed;
(xii) any Contract requiring that any of the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transactionthe marketing, advertising or promotion of such Acquired Company’s products or services in excess of $25,000 per year;
(xiii) any Contract providing for involving the lease settlement of any Proceedings with respect to which any unpaid amount or sublease of Tetraphase Leased Real Propertyfuture Liability remains;
(xiv) any Contract that is a Government franchise or agency Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment joint venture or delivery of cash partnership or other consideration in an amount Contract which involves a sharing of revenues, profits, losses, costs or having a value in excess of $200,000 in the fiscal year ending December 31Liabilities by such Acquired Company with any other Person, 2019; (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020than concerning any Acquired Company;
(xvi) Contract with any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company Material Customer (other than confidentiality hotel customers) or nondisclosure agreements entered into by Material Vendor;
(xvii) Contract with a Governmental Entity;
(xviii) redemption or purchase Contract or other Contract affecting or relating to the capital stock of such Acquired Company, including, without limitation any Tetraphase agreement with any current or former stockholder of such Acquired Company); and
(xviixix) any ContractContract for any debt or equity security or other ownership interest of any Person, or for the termination issuance of which would have a Company Material Adverse Effect. The Company has delivered any debt or Made Available (including by filing with equity security or other ownership interest, or the SEC) to Parent an accurate and complete copy conversion of each Company Contract that constitutes a Company Material Contract as of the date of this Agreementany obligation, instrument or security into debt or equity securities or other ownership interests of, such Acquired Company, or for any acquisition, divestiture, merger or similar transaction.
(b) Each Except as specifically disclosed on Schedule 3.10(b), (i) to the Knowledge of the Company, no Material Contract has been cancelled or breached by any party thereto, (ii) such Acquired Company has performed all material obligations under each Material Contract that constitutes required to be performed by such Acquired Company, and there is no material breach of or default by such Acquired Company under any such Material Contract or any event which, upon giving of notice or lapse of time or both, would constitute such a material breach or default by such Acquired Company, (iii) neither such Acquired Company nor any Seller has received written, or, to the Knowledge of the Company, oral, notice or claim of any breach or default under any Material Contract, and (iv) each Material Contract is valid legal, valid, binding, enforceable against such Acquired Company and, to the Knowledge of the Company, against each other party thereto, and is in full force and effect (except for Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period), and is enforceable in accordance with its terms, subject to: (i) laws of general application relating to bankruptcy, insolvency moratorium and similar laws and subject to the relief application of debtors; and (ii) rules of law governing specific performance, injunctive relief performance and other equitable remedies (principles). Without limiting the “Enforceability Exceptions”).
(c) Except as set forth in Part 2.10(c) of foregoing, since the Latest Balance Sheet Date, no Acquired Company Disclosure Schedule: (i) none of the Tetraphase Companies has violated or breached in paid any material respectservice credits, provided discounts, or committed agreed to provide any default other similar types of compensation to any Person in connection with the failure to perform obligations under any material respect under, any Company Material Contract; (ii) , including the failure to comply with relevant service levels, and, to the knowledge of the Company, no other Person has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (iii) to the knowledge Knowledge of the Company, no event has occurred, and no circumstance or condition exists, occurred that (with or without notice or lapse of time) would reasonably be expected to: (A) result in a violation or breach in any material respect of any Company Material Contract; (B) give gives any Person the right to declare a default in demand or receive any material respect such compensation under any Company such Material Contract; (C) give . No Acquired Company has triggered any Person obligation under any Material Contract that provides for a most-favored pricing provision for any customer of such Acquired Company to reduce the right prices charged to accelerate such customer in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date future. For purposes of this Agreement, none “Material Contract” means each Contract listed or required to be listed on Schedules 3.10(a) and 3.21. Each Acquired Company has heretofore made available to Buyer a true and correct copy of all Material Contracts (and a true and correct written description of all oral Material Contracts), together with all amendments, exhibits and attachments and waivers thereto.
(c) Schedule 3.10(c) sets forth a complete and accurate description of all of the Tetraphase Companies has received any written notice (or, to the knowledge material terms of the Company, any other communication) regarding any actual or possible material violation or breach of, or material default under, any Company Material Contractall oral Contracts disclosed in Schedule 3.10(a).
Appears in 1 contract
Contracts. (ai) Part 2.10(aSection 3.01(i) of the Company Disclosure Schedule identifies, as of the date of this Agreement, each Company Contract that constitutes Letter contains a Company Material Contract complete and which remains in effect as of the date hereof and under which a Tetraphase Company has remaining material rights or obligations. For purposes of this Agreement, each of the following Company Contracts shall be deemed to constitute a “Company Material Contract”correct list of:
(iA) each Contract pursuant to which the Company or any Contract of its Subsidiaries has agreed not to compete with any person in effect and any area or to engage in any activity or business, or pursuant to which has been filed (any benefit or right is required to be filed) by the Company given or lost as an exhibit pursuant to Item 601(b)(10) a result of Regulation S-K under the Exchange Act, so competing or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange Actengaging;
(ii) any Contract: (A) constituting a Company Employee Agreement under which annual salary or other stated annual cash compensation exceeds $200,000; (B) each Contract to which the Company or any of its Subsidiaries is a party providing for exclusivity or any similar requirement or pursuant to which the Company or any of its Subsidiaries is restricted in any way, or which after the Effective Time could restrict Parent or any of its Subsidiaries in any way, with respect to the development, manufacture, marketing or distribution of their respective products or services or otherwise prohibits any activity in respect of the operation of their businesses, or pursuant to which any benefit or right is required to be given or lost as a result of the Tetraphase Companies is non-compliance with any such exclusive or may become obligated to make any severance, termination or similar payment to any Company Associate or any spouse, heir or Representative of any Company Associate; prohibiting requirements;
(C) pursuant each Contract with (1) any affiliate of the Company or any of its Subsidiaries, (2) any Company Personnel, (3) any union or other labor organization or (4) any affiliate of any such person (other than, in each case, (I) offer letters or employment agreements that are terminable at will by the Company or any of its Subsidiaries both without any penalty and without any obligation of the Company or any of its Subsidiaries to pay severance or other compensation or benefits (other than accrued base salary, accrued commissions, accrued bonuses, accrued vacation pay, accrued floating holidays and legally mandated benefits), (II) invention assignment and confidentiality agreements relating to the assignment of inventions to the Company or any of its Subsidiaries not involving the payment of money and (III) Benefit Plans and Benefit Agreements (including agreements evidencing Equity Awards));
(D) each Contract under which the Company or any of its Subsidiaries has incurred any indebtedness having an aggregate principal amount in excess of $100,000;
(E) each material Contract (except for this Agreement) to which the Company or any of its Subsidiaries is a party that requires consent, approval or waiver of, or notice to, a Governmental Entity or other third party in the event of or with respect to the Merger or any of the Tetraphase Companies other transactions contemplated by this Agreement, including in order to avoid termination of or loss of a material benefit under any such Contract;
(F) each Contract to which the Company or any of its Subsidiaries is a party creating or may become obligated to make any bonus granting a Lien (including Liens upon properties acquired under conditional sales, capital leases or similar payment (other title retention or security devices), other than payments constituting bonuses (1) Liens for Taxes not yet due and payable, that are payable without penalty or commissions paid that are being contested in good faith and for which adequate reserves have been recorded, (2) Liens for assessments and other governmental charges or liens of landlords, carriers, warehousemen, mechanics and repairmen incurred in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) above;
(iii) any Contract business consistent with any labor union or any collective bargaining agreement or similar Contract for the benefit of any Company Associate(s);
(iv) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software);
(v) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Company;
(vi) any material Contract with any distributor and any material contract with any other reseller or sales representativepast practice, in each case that provides exclusivity rights to such distributorfor sums not yet due and payable or due but not delinquent or being contested in good faith by appropriate proceedings, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into (3) Liens incurred in the ordinary course of business;
business consistent with past practice in connection with workers’ compensation, unemployment insurance and other types of social security or to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, government contracts, performance and return of money bonds and similar obligations and (vii4) any material Contract (other than any purchase order entered into Liens incurred in the ordinary course of businessbusiness consistent with past practice that are not reasonably likely to adversely interfere in a material way with the use of assets encumbered thereby (“Permitted Liens”);
(G) each material Contract containing any provisions (1) contemplating or relating in any way to a change in control or similar event with sole source respect to the Company or single source suppliers any one or more of its Subsidiaries or otherwise having the effect of providing that the consummation of the Merger or any of the other transactions contemplated by this Agreement or the execution, delivery or effectiveness of this Agreement will materially conflict with, result in a material violation or material breach of, or constitute a default (with or without notice or lapse of time or both) under, such Contract or give rise under such Contract to any Tetraphase right of, or result in, a termination, right of first refusal, material amendment, revocation, cancelation or material acceleration, or a loss of a material benefit or the creation of any material Lien upon any of the properties or assets of the Company, Parent or any of their respective subsidiaries, or to any increased, guaranteed, accelerated or additional material rights or material entitlements of any person, (2) prohibiting or imposing any restrictions on the assignment of all or any portion of such Contract by Subsidiaries, including provisions requiring consent or approval of, or notice to, any person in the event of a change in control of the Company or any of products its subsidiaries to any other person (without regard to any exception permitting assignments to subsidiaries or servicesaffiliates), or (3) having the effect of providing that the consummation of the Merger or any of the other transactions contemplated by this Agreement or the execution, delivery or effectiveness of this Agreement will require that a third party be provided with access to source code or that any source code be released from escrow and provided to any third party;
(H) each Contract to which the Company or any of its Subsidiaries is a party providing for payments of royalties or other license fees to third parties in excess of $250,000 annually that is not terminable on notice of 90 days or less;
(I) each Contract granting a third party any license to Intellectual Property that is not limited to the internal use of such third party;
(J) each Contract pursuant to which the Company or any of its Subsidiaries has been granted any license to Intellectual Property, other than confidentiality or nondisclosure agreements entered into nonexclusive licenses granted in the ordinary course of businessbusiness of the Company and its Subsidiaries consistent with past practice;
(viiiK) any each Contract that provides for: (A) reimbursement of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate;
(ix) any Contract (A) that restricts the ability of the Tetraphase Companies to compete in any business or with any Person in any geographical area; (B) in which the Company or any Tetraphase Company has granted development rights, of its Subsidiaries is a party granting the other party to such Contract or a third party “most favored nation” pricing provisions or marketing terms that (1) applies to the Company or any of its Subsidiaries or (2) following the Merger would apply to Parent or any of its Subsidiaries other than the Surviving Corporation;
(L) each Contract pursuant to which the Company or any of its Subsidiaries has agreed or is required to provide any third party with access to source code, to provide for source code to be put in escrow or to refrain from granting license or franchise rights to any other person, excluding non-material pieces of source code developed for customers by the Company which are not integral to the Company’s products;
(M) each Contract to which the Company or any of its Subsidiaries is a party for any joint venture (whether in partnership, limited liability company or other organizational form) or similar arrangement;
(N) each material Contract for any development, marketing, resale, distribution rights or similar arrangement relating to any product or product candidate; service;
(CO) in each Contract to which the Company or any Tetraphase Company of its Subsidiaries is a party with any Governmental Entity that has agreed to purchase a minimum quantity resulted in cumulative license fee revenues in excess of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party$500,000 since January 1, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted2002;
(xP) each material Contract entered into in the last five years in connection with the settlement or other resolution of any suit, claim, action, investigation or proceeding that has any continuing obligations, liabilities or restrictions;
(Q) each Contract incorporating to which the Company or any of its Subsidiaries is a party providing for any material guaranty, warranty, sharing future performance by the Company or a Subsidiary in consideration of liabilities or indemnity (including any indemnity amounts previously paid excluding maintenance agreements with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts customers entered into in the ordinary course of business consistent with past practice;
(R) each Contract to which the Company or any of its Subsidiaries is a party providing for liquidated damages (other than in an immaterial amount);
(S) each material Contract to which the Company or any of its Subsidiaries is a party for professional services engagements for a fixed fee that do not deviate in guarantees a specific result;
(T) each Contract between the Company or any material respect from of its Subsidiaries and any of the standard forms 20 largest customers of Contracts previously Made Available the Company and its Subsidiaries (determined on the basis of aggregate license fees received by the Company to Parentor any of its Subsidiaries over the four consecutive fiscal quarter period ended June 30, 2006 (each such customer, a “Major Customer” and each such Contract, a “Major Customer Contract”));
(xiU) each Contract between the Company or any Contract providing for of its Subsidiaries and any currency hedgingof the 20 largest licensors or other suppliers to the Company and its Subsidiaries (determined on the basis of aggregate license fees paid by the Company or any of its Subsidiaries over the four consecutive fiscal quarter period ended June 30, 2006 (each such licensor or other supplier, a “Major Supplier” and each such Contract, a “Major Supplier Contract”));
(xiiV) any except for the Contracts disclosed above, each Contract requiring that which has aggregate future sums due to or from the Company or any of its Subsidiaries, taken as a whole, (i) during the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for period commencing on the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause date of this Section 2.10(a), that: (A) involved Agreement and ending on the payment or delivery 12-month anniversary of cash or other consideration in an amount or having a value this Agreement in excess of $200,000 in the fiscal year ending December 31, 2019; (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; 500,000 or (Dii) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) any material Contract that has a term of aggregate more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess $2 million during the life of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company)Contract; and
(xviiW) except for the Contracts disclosed above, each material Contract to which the Company or any Contract, of its Subsidiaries is a party not made in the termination ordinary course of which would have a business consistent with past practice. The Contracts of the Company Material Adverse Effector any of its Subsidiaries of the type referred to in clauses (A) through (W) above are collectively referred to in this Agreement as “Specified Contracts”. The Company has delivered or Made Available (including by filing with the SEC) made available to Parent an accurate a complete and complete correct copy of each Company Contract that constitutes a Company Material Contract as of the date Specified Contracts, including all amendments thereto. Each Contract of this Agreement.
the Company or any of its Subsidiaries that is material to the Company and its Subsidiaries (b) Each Company Contract that constitutes a Company “Material Contract Contract”), is valid and in full force and effect (except for those Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period), have expired in accordance with their terms) and is a legal, valid and binding agreement of the Company or its Subsidiary, as the case may be, and, to the knowledge of the Company, of each other party thereto, enforceable against the Company or such Subsidiary, as the case may be, and, to the knowledge of the Company, against the other party or parties thereto, in each case, in accordance with its terms, subject to: (i) laws of general application except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar Laws relating to bankruptcy, insolvency the enforcement of creditors’ rights generally and the relief by general principles of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”).
(c) Except as set forth in Part 2.10(c) equity. Each of the Company Disclosure Schedule: and its Subsidiaries has performed or is performing all material obligations required to be performed by it under the Material Contracts and is not (iwith or without notice or lapse of time or both) none of the Tetraphase Companies has violated or breached in any material respect, or committed any default breach in any material respect underor default thereunder, and has not waived or failed to enforce any Company Material Contract; (ii) material rights or benefits thereunder, and, to the knowledge of the Company, no other Person has violated or breached in party to any material respect, or committed any default in any material respect under, any Company Material Contract; (iii) to the knowledge of the Company, no event has occurred, and no circumstance or condition exists, that Material Contracts is (with or without notice or lapse of timetime or both) would reasonably be expected to: (A) result in a violation or breach in any material respect of any Company Material Contract; (B) give any Person the right to declare a or default in any material respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received any written notice (or, to thereunder. To the knowledge of the Company, there has occurred no event giving (with or without notice or lapse of time or both) to others any other communication) regarding right of termination, material amendment or cancelation of any actual Material Contract. To the knowledge of the Company, there are no circumstances that are reasonably likely to occur that are reasonably likely to adversely affect the ability of the Company or possible any of its Subsidiaries to perform its material violation or breach of, or material default under, obligations under any Company Material Contract.
Appears in 1 contract
Sources: Merger Agreement (Filenet Corp)
Contracts. (a) Part 2.10(aExcept as set forth in Section 4.10(a) of the Company Metrópolis Disclosure Schedule identifiesSchedule, as of there is no Contract or Judgment (except for the date of this Agreement, each Company Contract that constitutes a Company Material Contract and which remains in effect as of the date hereof and under which a Tetraphase Company has remaining material rights Antitrust Resolution) binding upon Metrópolis or obligations. For purposes of this Agreement, each of the following Company Contracts shall be deemed to constitute a “Company Material Contract”Proser:
(i) any Contract in effect and which has been filed (that limits the conduct of the business of Metrópolis or is required to be filed) by the Company Proser as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Act, or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange Actpresently conducted;
(ii) that relates to any Contract: Metrópolis Leased Real Property or that is a lease, sublease, or similar Contract with any Person under which Metrópolis or Proser is a lessor or sublessor of, or makes available for use to any Person, (A) constituting a Company Employee Agreement under which annual salary any Metrópolis Owned Real Property or other stated annual cash compensation exceeds $200,000; Metrópolis Leased Real Property or (B) pursuant to which any of the Tetraphase Companies is or may become obligated to make any severance, termination or similar payment to any Company Associate or any spouse, heir or Representative portion of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is premises otherwise occupied by Metrópolis or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) aboveProser;
(iii) that relates in whole or in part to any Contract with any labor union Metrópolis Owned Intellectual Property or any collective bargaining agreement Metrópolis Licensed Intellectual Property (including under which Metrópolis or similar Contract for the benefit Proser is licensee or licensor of any Company Associate(sIntellectual Property);
(iv) each material Contract pursuant to under which Metrópolis or Proser has borrowed any Intellectual Property Rights money from, or Intellectual Property that has been incorporated into issued any Company Product and is licensed to note, bond, or debenture to, or incurred Indebtedness to, any Tetraphase Company (Person, or any other than non-exclusive licenses to unmodified commercially available third party software)note, bond, debenture, or other Indebtedness of Metrópolis or Proser;
(v) each material Contract pursuant to under which any Intellectual Property Rights or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Company;
(vi) any material Contract with any distributor and any material contract with any other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(vii) any material Contract (other than any purchase order entered into in the ordinary course of business) with sole source or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viii) any Contract that provides for: (A) reimbursement of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate;
(ix) any Contract (A) that restricts the ability of the Tetraphase Companies to compete in any business or with any Person in any geographical areaother than Metrópolis or Proser has directly or indirectly guaranteed Indebtedness or liabilities of Metrópolis or Proser; (B) in which the Company Metrópolis or any Tetraphase Company Proser has granted development rights, “most favored nation” pricing provisions directly or marketing indirectly guaranteed Indebtedness or distribution rights relating to any product or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor liabilities of any third party, Person other than Metrópolis or Proser (in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;
(x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into endorsements for the purpose of collection in the ordinary course of business consistent with past practice); or (C) Metrópolis or Proser has agreed to indemnify any third party; in each case including any so called take-or-pay or keepwell agreements;
(vi) under which Metrópolis or Proser has, directly or indirectly, made any advance, loan, extension of credit, or capital contribution to, or other investment in, a Person;
(vii) granting a Lien (other than a Permitted Lien) upon any Metrópolis Owned Real Property, any Metrópolis Leased Real Property, or any other asset owned by Metrópolis or Proser;
(viii) for the sale of any asset of Metrópolis or Proser with a book value in excess of US$25,000 (or its equivalent in Chilean Pesos as of the date that do not deviate in is two Business Days prior to the date hereof) or the grant of any material respect preferential rights to purchase any such asset or requiring the consent of any party to the transfer thereof;
(ix) that is with or from the standard forms of Contracts previously Made Available by the Company to Parentany Governmental Authority;
(x) for any joint venture, partnership, or similar arrangement;
(xi) any Contract providing for the services of any currency hedgingdealer, distributor, sales representative, franchisee, or similar representative involving the payment or receipt over the life of such Contract in excess of US$50,000 (or its equivalent in Chilean Pesos as of the date that is two Business Days prior to the date hereof) by Metrópolis or Proser;
(xii) any Contract requiring that any of the Tetraphase Companies give any written notice or provide any information creates an aggregate future liability to any Person (including Metrópolis or Proser) in excess of US$50,000 (or its equivalent in Chilean Pesos as of the date that is two Business Days prior to responding to the date hereof) and is not terminable by Metrópolis or Proser by notice of not more than 90 days for a cost of less than US$10,000 (or its equivalent in Chilean Pesos as of the date that is two Business Days prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transactionthe date hereof) (including purchase orders and sales orders;
(xiii) that has had or could reasonably be expected to limit the right of UGC or any Contract providing for the lease or sublease of Tetraphase Leased Real Propertyits Subsidiaries (except Metrópolis and Proser) to compete in any line of business;
(xiv) that purports to or would bind VTR or any Contract that is a Government Contractof its Subsidiaries (except Metrópolis and Proser) after giving effect to the transactions contemplated hereby;
(xv) that purports to bind any Contract, not covered by another clause Affiliate of this Section 2.10(a), that: Metrópolis and Proser (Aexcept Metrópolis and Proser) involved the payment or delivery of cash or other consideration in an amount or having such a value in excess of $200,000 in the fiscal year ending December 31, 2019; (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) any material Contract manner that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery Closing an act or omission of a termination notice by such Tetraphase Company (other than confidentiality UGC or nondisclosure agreements entered into by any Tetraphase Company); and
(xvii) any Contract, the termination of which would have a Company Material Adverse Effect. The Company has delivered or Made Available (including by filing with the SEC) to Parent an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as of the date of this Agreement.
(b) Each Company Contract that constitutes a Company Material Contract is valid and in full force and effect its Subsidiaries (except for Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period), Metrópolis and is enforceable in accordance with its terms, subject to: (iProser) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”).
(c) Except as set forth in Part 2.10(c) of the Company Disclosure Schedule: (i) none of the Tetraphase Companies has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (ii) to the knowledge of the Company, no other Person has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (iii) to the knowledge of the Company, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) would reasonably be expected to: (A) could result in a violation or breach thereof, or constitute (with or without the giving of notice or lapse of time or both), or permit any Person to declare, a default or event of default thereunder, or give rise to any right of termination, cancellation, amendment, acceleration, repurchase, prepayment, repayment, or increased payments thereunder, or give rise to or accelerate any obligation (including any obligation to, or to offer to, repurchase, prepay, repay, or make increased payments) or result in the loss or modification of any rights or benefits thereunder, or result in any material respect of Lien (other than Permitted Liens) or Restriction (other than Restrictions created by this Agreement or any Company Material Contract; (B) give any Person the right to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received other Transaction Documents) on any written notice of the assets of, UGC or any of its Subsidiaries; or
(orxvi) other than as set forth above, to which Metrópolis or Proser is a party or by which it or any of its assets or businesses is bound or subject that is material to the knowledge business of Metrópolis or Proser or the Companyuse or operation of their respective assets, any including all programming Contracts, all Strategic Contracts, and all other communication) regarding any actual Contracts between Metrópolis or possible material violation or breach ofProser, or material default underon the one hand, any Company Material Contract.and
Appears in 1 contract
Sources: Purchase and Contribution Agreement (Unitedglobalcom Inc)
Contracts. (a) Part 2.10(a) of the Company Disclosure Schedule identifies, as As of the date of this Agreement, each Company Contract that constitutes neither DigitalGlobe nor any DigitalGlobe Subsidiary is a Company Material Contract and which remains in effect as of the date hereof and under which a Tetraphase Company has remaining material rights or obligations. For purposes of this Agreement, each of the following Company Contracts shall be deemed party to constitute a “Company Material Contract”:
(i) any Contract in effect and which has been filed (or is required to be filed) filed by the Company DigitalGlobe as an exhibit a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Exchange ActSecurities Act (a “Filed DigitalGlobe Contract”) that has not been so filed, and as of the date hereof, no such Contract has been amended or modified since the date filed, other than pursuant to an amendment or modification filed, or that would be which is not required to be disclosed under filed, pursuant to Item 404 601(b)(10) of Regulation S-K under the Exchange Securities Act;.
(iib) any Contract: (ASection 3.14(b) constituting a Company Employee Agreement under which annual salary or other stated annual cash compensation exceeds $200,000; (B) pursuant to which any of the Tetraphase Companies is or may become obligated to make any severanceDigitalGlobe Disclosure Letter sets forth, termination or similar payment to any Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) above;
(iii) any Contract with any labor union or any collective bargaining agreement or similar Contract for the benefit of any Company Associate(s);
(iv) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software);
(v) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Company;
(vi) any material Contract with any distributor and any material contract with any other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(vii) any material Contract (other than any purchase order entered into in the ordinary course of business) with sole source or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viii) any Contract that provides for: (A) reimbursement of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate;
(ix) any Contract (A) that restricts the ability of the Tetraphase Companies to compete in any business or with any Person in any geographical area; (B) in which the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;
(x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into in the ordinary course of business or that do not deviate in any material respect from the standard forms of Contracts previously Made Available by the Company to Parent;
(xi) any Contract providing for any currency hedging;
(xii) any Contract requiring that any of the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2019; (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company); and
(xvii) any Contract, the termination of which would have a Company Material Adverse Effect. The Company has delivered or Made Available (including by filing with the SEC) to Parent an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as of the date of this Agreement.
(b) Each Company Contract that constitutes , a Company Material Contract is valid true and in full force and effect (except for Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period), and is enforceable in accordance with its terms, subject to: complete list of (i) laws each non-competition Contract or any other Contract containing terms that expressly (A) limit or otherwise restrict DigitalGlobe or the DigitalGlobe Subsidiaries or (B) to the Knowledge of general application relating DigitalGlobe, would, after the Effective Time, by its terms expressly limit or otherwise restrict the Combined Company from , in the case of either (A) or (B), engaging or competing in any line of business or in any geographic area, in a manner that would be reasonably likely to bankruptcybe material, insolvency in the case of (A), to DigitalGlobe and the relief DigitalGlobe Subsidiaries, taken as a whole, or in the case of debtors; and (B), to the Combined Company, taken as a whole, (ii) rules each loan and credit agreement, note, debenture, bond, indenture or other similar agreement pursuant to which any Indebtedness of law governing specific performanceDigitalGlobe or any of the DigitalGlobe Subsidiaries is outstanding or may be incurred, injunctive relief other than any such agreement between or among DigitalGlobe and the wholly owned DigitalGlobe Subsidiaries, (iii) each partnership, joint venture or similar agreement or understanding to which DigitalGlobe or any of the DigitalGlobe Subsidiaries is a party relating to the formation, creation, operation, management or control of any partnership or joint venture material to DigitalGlobe and the DigitalGlobe Subsidiaries, taken as a whole, (iv) Contracts pursuant to which DigitalGlobe or a DigitalGlobe Subsidiary pays or is paid $5,000,000 or more in any 12-month period and (v) Contracts pursuant to which DigitalGlobe or a DigitalGlobe Subsidiary (A) is granted or obtains or agrees to obtain any right to use any material Intellectual Property (other equitable remedies than rights to use readily commercially available Software), (B) permits or agrees to permit any other Person, to use, enforce, or register any material Intellectual Property, or (C) following the Closing, would be required to license, assign, or make available to any other Person material Intellectual Property owned by GeoEye or its Affiliates immediately prior to the Closing, except in the case of (B) or (C), with respect to satellite-generated images sold as part of DigitalGlobe’s database in the ordinary course of business. Each agreement, understanding or undertaking of the type described in this Section 3.14(b) and each Filed DigitalGlobe Contract is referred to herein as a “Enforceability ExceptionsDigitalGlobe Material Contract”).
(c) Except as set forth for matters which, individually or in Part 2.10(c) the aggregate, have not had and would not reasonably be expected to have a DigitalGlobe Material Adverse Effect and except for terminations or expirations at the end of the Company Disclosure Schedule: stated term after the date hereof, (i) none each DigitalGlobe Material Contract (including, for purposes of this Section 3.14(c), any Contract entered into after the date of this Agreement that would have been a DigitalGlobe Material Contract if such Contract existed on the date of this Agreement) is a valid, binding and legally enforceable obligation of DigitalGlobe or a DigitalGlobe Subsidiary, as the case may be, and, to the Knowledge of DigitalGlobe, of the Tetraphase Companies has violated other parties thereto, except, in each case, as enforcement may be limited by bankruptcy, insolvency, reorganization or breached in any material respectsimilar Laws affecting creditors’ rights generally and by general principles of equity, or committed any default in any material respect under, any Company Material Contract; (ii) to the knowledge of the Company, no other Person has violated or breached each such DigitalGlobe Material Contract is in any material respect, or committed any default in any material respect under, any Company Material Contract; full force and effect and (iii) to the knowledge none of DigitalGlobe or any of the Company, no event has occurred, and no circumstance or condition exists, that DigitalGlobe Subsidiaries is (with or without notice or lapse of time, or both) would reasonably be expected to: (A) result in a violation breach or breach in any material respect of any Company Material Contract; (B) give any Person the right to declare a default in any material respect under any Company such DigitalGlobe Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received any written notice (orContract and, to the knowledge Knowledge of the CompanyDigitalGlobe, no other party to any other communication) regarding any actual such DigitalGlobe Material Contract is (with or possible material violation without notice or breach oflapse of time, or material both) in breach or default under, any Company Material Contractthereunder.
Appears in 1 contract
Sources: Merger Agreement (GeoEye, Inc.)
Contracts. (a) Part 2.10(a) of the Company Disclosure Schedule identifies, as As of the date of this Agreement, each Company Contract that constitutes neither DigitalGlobe nor any DigitalGlobe Subsidiary is a Company Material Contract and which remains in effect as of the date hereof and under which a Tetraphase Company has remaining material rights or obligations. For purposes of this Agreement, each of the following Company Contracts shall be deemed party to constitute a “Company Material Contract”:
(i) any Contract in effect and which has been filed (or is required to be filed) filed by the Company DigitalGlobe as an exhibit a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Exchange ActSecurities Act (a “Filed DigitalGlobe Contract”) that has not been so filed, and as of the date hereof, no such Contract has been amended or modified since the date filed, other than pursuant to an amendment or modification filed, or that would be which is not required to be disclosed under filed, pursuant to Item 404 601(b)(10) of Regulation S-K under the Exchange Securities Act;.
(iib) any Contract: (ASection 3.14(b) constituting a Company Employee Agreement under which annual salary or other stated annual cash compensation exceeds $200,000; (B) pursuant to which any of the Tetraphase Companies is or may become obligated to make any severanceDigitalGlobe Disclosure Letter sets forth, termination or similar payment to any Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) above;
(iii) any Contract with any labor union or any collective bargaining agreement or similar Contract for the benefit of any Company Associate(s);
(iv) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software);
(v) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Company;
(vi) any material Contract with any distributor and any material contract with any other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(vii) any material Contract (other than any purchase order entered into in the ordinary course of business) with sole source or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viii) any Contract that provides for: (A) reimbursement of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate;
(ix) any Contract (A) that restricts the ability of the Tetraphase Companies to compete in any business or with any Person in any geographical area; (B) in which the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;
(x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into in the ordinary course of business or that do not deviate in any material respect from the standard forms of Contracts previously Made Available by the Company to Parent;
(xi) any Contract providing for any currency hedging;
(xii) any Contract requiring that any of the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2019; (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company); and
(xvii) any Contract, the termination of which would have a Company Material Adverse Effect. The Company has delivered or Made Available (including by filing with the SEC) to Parent an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as of the date of this Agreement.
(b) Each Company Contract that constitutes , a Company Material Contract is valid true and in full force and effect (except for Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period), and is enforceable in accordance with its terms, subject to: complete list of (i) laws each non-competition Contract or any other Contract containing terms that expressly (A) limit or otherwise restrict DigitalGlobe or the DigitalGlobe Subsidiaries or (B) to the Knowledge of general application relating DigitalGlobe, would, after the Effective Time, by its terms expressly limit or otherwise restrict the Combined Company from , in the case of either (A) or (B), engaging or competing in any line of business or in any geographic area, in a manner that would be reasonably likely to bankruptcybe material, insolvency in the case of (A), to DigitalGlobe and the relief DigitalGlobe Subsidiaries, taken as a whole, or in the case of debtors; and (B), to the Combined Company, taken as a whole, (ii) rules each loan and credit agreement, note, debenture, bond, indenture or other similar agreement pursuant to which any Indebtedness of law governing specific performanceDigitalGlobe or any of the DigitalGlobe Subsidiaries is outstanding or may be incurred, injunctive relief other than any such agreement between or among DigitalGlobe and the wholly owned DigitalGlobe Subsidiaries, (iii) each partnership, joint venture or similar agreement or understanding to which DigitalGlobe or any of the DigitalGlobe Subsidiaries is a party relating to the formation, creation, operation, management or control of any partnership or joint venture material to DigitalGlobe and the DigitalGlobe Subsidiaries, taken as a whole, (iv) Contracts pursuant to which DigitalGlobe or a DigitalGlobe Subsidiary pays or is paid $5,000,000 or more in any 12-month period and (v) Contracts pursuant to which DigitalGlobe or a DigitalGlobe Subsidiary (A) is granted or obtains or agrees to obtain any right to use any material Intellectual Property (other equitable remedies than rights to use readily commercially available Software), (B) permits or agrees to permit any other Person, to use, enforce, or register any material Intellectual Property, or (C) following the Closing, would be required to license, assign, or make available to any other Person material Intellectual Property owned by GeoEye or its Affiliates immediately prior to the Closing, except in the case of (B) or (C), with respect to satellite-generated images sold as part of DigitalGlobe's database in the ordinary course of business. Each agreement, understanding or undertaking of the type described in this Section 3.14(b) and each Filed DigitalGlobe Contract is referred to herein as a “Enforceability ExceptionsDigitalGlobe Material Contract”).
(c) Except as set forth for matters which, individually or in Part 2.10(c) the aggregate, have not had and would not reasonably be expected to have a DigitalGlobe Material Adverse Effect and except for terminations or expirations at the end of the Company Disclosure Schedule: stated term after the date hereof, (i) none each DigitalGlobe Material Contract (including, for purposes of this Section 3.14(c), any Contract entered into after the date of this Agreement that would have been a DigitalGlobe Material Contract if such Contract existed on the date of this Agreement) is a valid, binding and legally enforceable obligation of DigitalGlobe or a DigitalGlobe Subsidiary, as the case may be, and, to the Knowledge of DigitalGlobe, of the Tetraphase Companies has violated other parties thereto, except, in each case, as enforcement may be limited by bankruptcy, insolvency, reorganization or breached in any material respectsimilar Laws affecting creditors’ rights generally and by general principles of equity, or committed any default in any material respect under, any Company Material Contract; (ii) to the knowledge of the Company, no other Person has violated or breached each such DigitalGlobe Material Contract is in any material respect, or committed any default in any material respect under, any Company Material Contract; full force and effect and (iii) to the knowledge none of DigitalGlobe or any of the Company, no event has occurred, and no circumstance or condition exists, that DigitalGlobe Subsidiaries is (with or without notice or lapse of time, or both) would reasonably be expected to: (A) result in a violation breach or breach in any material respect of any Company Material Contract; (B) give any Person the right to declare a default in any material respect under any Company such DigitalGlobe Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received any written notice (orContract and, to the knowledge Knowledge of the CompanyDigitalGlobe, no other party to any other communication) regarding any actual such DigitalGlobe Material Contract is (with or possible material violation without notice or breach oflapse of time, or material both) in breach or default under, any Company Material Contractthereunder.
Appears in 1 contract
Sources: Merger Agreement (Digitalglobe Inc)
Contracts. (a) Part 2.10(a) Section 4.20 of the Company Delta Disclosure Schedule identifiescontains a true and complete list, as of the date hereof, of this Agreement, each Company Contract all Contracts (other than Transferred Business Plans and other than any Material Contracts that constitutes a Company Material Contract and are Excluded Assets) (i) to which remains in effect as any of the date hereof Transferred DPP Companies, any of their Subsidiaries or any DPP Affiliate (in respect of the DPP Business) is a party, (ii) by which any of the Transferred DPP Companies, any of their Subsidiaries or any DPP Affiliate (in respect of the DPP Business) is bound, or (iii) pursuant to which the DPP Assets are bound, and under which a Tetraphase Company has remaining material rights or obligations. For purposes of this Agreement, each that fall within any of the following Company categories (the “Material Contracts”); provided that, except with respect to clause (e) below, the following categories shall exclude any Contracts shall be deemed to constitute a “Company Material Contract”that are IT Assets:
(i) each material Contract with a Key Customer (other than (i) any such Contract in effect which is terminable by a Transferred DPP Company or its Subsidiary, as applicable, without material liability, penalty or premium and which has been filed (or is required to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Act, or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange Act;
(ii) any Contract: (A) constituting a Company Employee Agreement purchase orders, sales orders, work orders, rebate agreements or invoices under which annual salary or other stated annual cash compensation exceeds $200,000; (B) pursuant to which any of the Tetraphase Companies is or may become obligated to make any severance, termination or similar payment to any Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid such Contracts entered into in the ordinary course of business); or ;
(Dii) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies each material Contract with a Key Supplier (other than pursuant to (i) any such Contract which is terminable by a Transferred DPP Company or its Subsidiary, as applicable, without material liability, penalty or premium and (ii) purchase orders, sales orders, work orders, rebate agreements on forms described or invoices under such Contracts entered into in Section 2.10(a)(i) abovethe ordinary course of business);
(iii) each material joint venture, partnership, shareholders or other similar agreement relating to the governance or rights of partners or involving an equity investment by any Contract with DPP Share Seller (in respect of any labor union portion of the DPP Business) or involving any Transferred DPP Company or any collective bargaining agreement or similar Contract for the benefit of any Company Associate(s)their Subsidiaries;
(iv) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses Contracts to unmodified commercially available third party software)provide contract manufacturing and development services to customers) which limits the ability of a Transferred DPP Company or any of its Subsidiaries or a DPP Affiliate (in respect of the DPP Business) to compete in any material respect in any business, with any Person or in any geographic area or in any line of business;
(v) each Contract that is (i) a material Contract pursuant to DPP IT Asset or (ii) an IT Asset set forth on Section 7.15(c)(ii) of the Delta Disclosure Schedule, in each case, other than (A) Contracts under which any Intellectual Property Rights the amount spent in respect of the DPP Business during the twelve (12) month period ended December 31, 2012 did not exceed $1,000,000 and (B) Contracts concerning commercially available off the shelf software or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Companyhardware;
(vi) any each material Contract with any distributor and any material contract with any other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representativeTransferred IP Contract, other than confidentiality or nondisclosure non-disclosure agreements, employee invention assignments, customer end user agreements, and similar agreements entered into in the ordinary course of business;
(vii) any each Contract material to the DPP Business containing a minimum purchase requirement under which the Transferred DPP Companies or their respective Subsidiaries purchased during the twelve (12)-month period immediately preceding December 31, 2012 a minimum of $1,000,000 of goods or services on an annual basis;
(viii) each Contract material to the DPP Business containing a minimum supply commitment for the Transferred DPP Companies or their respective Subsidiaries to sell during the twelve (12)-month period immediately following, or pursuant to which the Transferred DPP Companies or their respective Subsidiaries have sold during the twelve (12) month period immediately preceding, December 31, 2012 a minimum of $1,000,000 of goods or services on an annual basis;
(ix) each Contract (other than any purchase order orders, sales orders, work orders, rebate agreements or invoices under such Contracts entered into the ordinary course of business) containing any future capital expenditure obligations of the Transferred DPP Companies, their respective Subsidiaries or the DPP Affiliates (in respect of the DPP Business) in respect of any single project in excess of $1,000,000;
(i) each Contract entered into after December 31, 2012, or not yet consummated, relating to the acquisition or disposition of any business, Assets or capital stock or other equity interests of any Person (whether by merger, sale of stock, sale of Assets or otherwise) for aggregate consideration under such Contract in excess of $1,000,000 individually, other than purchases or sales of raw materials, inventory or similar Assets in the ordinary course of business, and (ii) with sole source each Contract relating to the acquisition or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viii) any Contract that provides for: (A) reimbursement disposition of any Company Associate forbusiness, Assets or advancement to any Company Associate of, legal fees capital stock or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification equity interests of any Company Associate;
Person (ixwhether by merger, sale of stock, sale of Assets or otherwise) any Contract (A) that restricts the ability of the Tetraphase Companies to compete in any business or with any Person in any geographical area; (B) in under which the Company Transferred DPP Companies or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;
(x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity their respective Subsidiaries will have an obligation after Closing with respect to Intellectual Property or Intellectual Property Rights) an “earn out,” contingent purchase price, or similar obligation, other than Contracts entered into in the ordinary course of business contingent payment obligation or that do not deviate in indemnification obligations (but excluding indemnification obligations with respect to any material respect from the standard forms of Contracts previously Made Available by the Company to ParentRetained Liabilities);
(xi) any Contract lease or sublease related to (i) any Leased Real Property at which any Transferred DPP Company or any of its Subsidiaries or a DPP Affiliate (in respect of the DPP Business) currently conducts manufacturing or assembling activities or (ii) any other Leased Real Property providing for any currency hedging;annual rents in excess of $1,000,000; and
(xii) any Contract requiring that any of the Tetraphase Companies give any written notice or provide any information to any Person prior to responding relating to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration in an amount or having a value evidencing Indebtedness in excess of $200,000 in the fiscal year ending December 31, 2019; (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;1,000,000 individually.
(xvib) any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company); and
(xvii) any Contract, the termination of which would have a Company Material Adverse Effect. The Company has delivered or Made Available (including by filing with the SEC) to Parent an accurate A correct and complete copy of each Company Contract that constitutes a Company Material Contract as of has been made available to Newco prior to the date of this Agreement.
(b) hereof. Each Company Contract that constitutes a Company Material Contract is valid valid, binding and enforceable in full force and effect (except for Contracts that are expiredall material respects against the Transferred DPP Company, terminatedSubsidiary of a Transferred DPP Company or DPP Affiliate party thereto and, and/or not renewed during to the Pre-Closing Period)Knowledge of Delta, and is enforceable the other parties thereto in accordance with its terms, in each case, subject to: (i) laws of general application relating to bankruptcy, insolvency insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights and subject, as to enforceability, to general equity principles, and, to the relief Knowledge of debtors; Delta, is in full force and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”).
(c) effect. Except as set forth in Part 2.10(con Section 4.20(b) of the Company Delta Disclosure Schedule: , neither the Transferred DPP Companies, their Subsidiaries or DPP Affiliates (i) none in respect of the Tetraphase Companies has violated or breached in any material respectDPP Business) nor, or committed any default in any material respect underto the Knowledge of Delta, any Company other party thereto, is in material default under or in material breach of any Material Contract; Contract (ii) other than agreements between or among any of the Transferred DPP Companies and their Subsidiaries), and, to the knowledge Knowledge of the Company, no other Person has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (iii) to the knowledge of the CompanyDelta, no event has occurred, and no circumstance or condition exists, occurred that (with or without notice or lapse of time) time or both would reasonably be expected to: (A) result in constitute such a violation or material breach in any material respect of any Company Material Contract; (B) give any Person the right to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received any written notice (or, to the knowledge of the Company, any other communication) regarding any actual or possible material violation or breach of, or material default underthereunder. As of the date hereof, neither Delta nor its Subsidiaries have received written notice of termination, cancellation or non-renewal with respect to any Company Material Contract.
Appears in 1 contract
Sources: Contribution Agreement (Patheon Inc)
Contracts. (a) Part 2.10(a) Schedule 2.8 of the Company Disclosure Schedule identifies, identifies each Company Contract that constitutes a Company Significant Contract as of the date of this Agreement, each Company Contract that constitutes a Company Material Contract and which remains in effect as of the date hereof and under which a Tetraphase Company has remaining material rights or obligations. For purposes of this Agreement, each of the following Company Contracts shall be deemed to constitute a “Company Material Significant Contract”:
(i) any Contract in effect and which has been filed (or is required to be filed) by the constituting a Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Act, or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange Act;
(ii) any ContractEmployee Agreement: (A) constituting a Company Employee Agreement under which annual salary or other stated annual cash compensation exceeds $200,000; (B) pursuant to which the Company or any of the Tetraphase Companies its Subsidiaries is or may become obligated to make any severance, termination or similar payment in excess of $10,000 to any Company Associate or any spouse, heir or Representative of any Company AssociateEmployee (except as may be required by applicable Legal Requirements); (CB) pursuant to which the Company or any of the Tetraphase Companies its Subsidiaries is or may become obligated to make any bonus or similar payment payments (other than payments constituting bonuses base salary or commissions paid in the ordinary course of business)) in excess of $10,000 to any individual Company Employee; (C) pursuant to which any Acquired Corporation is or may become obligated to extend the post-termination exercise period of any Company Option beyond the period set forth in the applicable Company Option Plan; or (D) pursuant to which any of the Tetraphase Companies Acquired Corporation is or may become obligated to grant provide any benefit to a Company Employee upon termination (with or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right without cause) of such Company Employee’s employment or other equity interest in relationship (other than statutory benefits required by applicable law);
(ii) any Contract pursuant to which the Company or any of the Tetraphase Companies its Subsidiaries licenses from any Person (other than pursuant the Company and its Subsidiaries) any Intellectual Property Rights (other than software license agreements for any third-party software that is generally available to agreements on forms described the public at a cost of less than $50,000 per year entered into by the Company or any of its Subsidiaries in Section 2.10(a)(i) abovethe ordinary course of business);
(iii) any Contract with any labor union pursuant to which the Company or any collective bargaining agreement or similar Contract for of its Subsidiaries licenses to any Person (other than the benefit of Company and its Subsidiaries) any Company Associate(s)Owned IP;
(iv) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software);
(v) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Company;
(vi) any material Contract with any distributor and any material contract with any or other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(vii) any material Contract (other than any purchase order entered into in the ordinary course of business) with sole source or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viiiv) any Contract that provides for: (A) reimbursement of any Company Associate Employee for, or advancement to any Company Associate Employee of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company AssociateEmployee;
(vi) any Contract imposing any restriction on the right or ability of the Company or any of its Subsidiaries: (A) to compete with any other Person; (B) to acquire any product or other asset or any services from any other Person; (C) to develop, sell, manufacture, license, market, assemble, supply, distribute, offer, support or service any product or any technology or other asset to or for any other Person; (D) to perform services for any other Person; (E) to transact business with any other Person; or (F) to operate at any location in the world;
(vii) any Contract evidencing indebtedness in excess of $50,000;
(viii) any Contract relating to the lease or sublease of Leased Real Property;
(ix) any Contract (A) that restricts the ability of the Tetraphase Companies to compete in any business labor or with any Person in any geographical area; (B) in which the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conductedcollective bargaining Contract;
(x) any Contract incorporating for pre-clinical, testing, clinical or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect marketing trials relating to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into in the ordinary course of business or that do not deviate in any material respect from the standard forms of Contracts previously Made Available by the Company to ParentProducts and Contracts with physicians, hospitals, clinics or other healthcare providers;
(xi) any joint venture or partnership Contract providing for any currency hedgingor Contract requiring the sharing of profits;
(xii) any Contract requiring that pursuant to which any third party is entitled to market any of the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition TransactionCompany Products;
(xiii) any Contract providing for under which another party processes, produces or manufactures, or will process, produce or manufacture, any of the lease Company Products and any Contract with suppliers of any component or sublease active ingredient of Tetraphase Leased Real Propertythe Company Products;
(xiv) any Contract that is pursuant to which the Company or any Subsidiary has acquired a Government Contractbusiness or entity, or assets of a business or entity, whether by way of merger, consolidation, purchase of stock, purchase of assets, license or otherwise, or any contract pursuant to which it has any material ownership interest in any other Person;
(xv) any Contract, not covered other Contract that by another clause of this Section 2.10(a), that: (A) involved its terms involves the payment or delivery of cash or other consideration in an amount or having a value value, individually or in the aggregate, in excess of $200,000 100,000 in the any individual fiscal year ending December 31, 2019; (B) requires which is not terminable without material penalty by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020Company on less than 90 days’ notice;
(xvi) any material Contract that has for Company In-Licensed IP with respect to a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into Product containing an express requirement for diligence by any Tetraphase Company); andAcquired Corporation in the development, marketing, manufacture or sale of such Company Product;
(xvii) any Contract incorporating or relating to any guaranty or performance of obligation of another party, any product or service warranty or any sharing of liabilities, except for Contracts which do not differ materially from the standard forms made available by the Company to Parent;
(xviii) any Contract relating to any currency hedging, swap or other financial derivative, material credit facility, outstanding letter of credit or bank guarantee;
(xix) any Contract (other than Contracts evidencing Company Options or Company Warrants): (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any securities; (B) providing any Person with any preemptive right, right of participation, right of maintenance or similar right with respect to any securities; or (C) providing to or imposing upon any of the Acquired Corporations any right of first refusal with respect to, or right or obligation to repurchase or redeem, any securities;
(xx) any other Contract, the if a breach or termination of which such Contract would reasonably be expected to have or result in a Company Material Adverse Effect; and
(xxi) any other Contract not listed in Sections 2.8(a)(i)-(xxi) that would be a “material contract” under Rule 601 of Regulation S-K of the SEC. The Company has delivered or Made Available (including by filing with the SEC) made available to Parent an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as of the date of this AgreementSignificant Contract.
(b) Each Company Significant Contract, including any Subsidiary Contract that constitutes a (as defined in the Company Material Contract Disclosure Schedule), is valid and in full force and effect (except for Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period), and is enforceable in accordance with its terms, subject to: (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”)remedies.
(c) Except as set forth in Part 2.10(c) of the Company Disclosure Schedule: (i) none Neither the Company nor any of the Tetraphase Companies has violated its Subsidiaries is in breach or breached in any material respect, or committed any default in any material respect under, under any Company Material Contract; (ii) to the knowledge of the Company, no other Person has violated is in breach or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; and (iii) to the knowledge of the Company, no event has occurredoccurred and is continuing, and no circumstance or condition exists, that (with or without notice or lapse of time) would reasonably be expected to: (A) result in a violation or breach in of any material respect of the provisions of any Company Material Contract; (B) give any Person the right to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to receive or require a rebate, chargeback, penalty or change in delivery schedule under any Company Contract; (D) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (DE) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received any written notice (or, to the knowledge of the Company, any other communication) regarding any actual or possible material violation or breach of, or material default under, any Company Material Contract.
Appears in 1 contract
Sources: Merger Agreement (Peplin Inc)
Contracts. (a) Part 2.10(aSection 3.9(a) of the Company Disclosure Schedule identifies, as of the date of this Agreement, each Company Contract (other than an Employee Plan) to which any Acquired Corporation is a party, or by which it is bound, that constitutes a Company Material Contract and which remains in effect as of the date hereof and under which a Tetraphase Company has remaining material rights or obligationsof this Agreement. For purposes of this Agreement, each of the following Company Contracts shall be deemed to constitute which any Acquired Corporation is a party or by which it is bound constitutes a “Company Material Contract”:
(i) any Contract that is a settlement, conciliation or similar Contract with or approved by any Governmental Body (A) pursuant to which an Acquired Corporation will be required after the date of this Agreement to pay any monetary obligations or (B) that contains continuing material obligations or limitations on such Acquired Corporation’s conduct;
(ii) any Contract (A) materially limiting the right of any Acquired Corporation (or, following the Closing, Parent or any of its Affiliates) to engage in any line of business or to compete with any other Person in any location or line of business, (B) containing any “most favored nations” terms and conditions (including with respect to pricing) granted by any Acquired Corporation or (C) containing exclusivity obligations or otherwise limiting the right of any Acquired Corporation (or, following the Closing, Parent or any of its Affiliates) to solicit, sell, distribute or manufacture any products or services or any technology or other assets to or for any other Person;
(iii) any Contract that requires, or is reasonably expected to require, by its terms, the payment or delivery of cash or other consideration to or by any Acquired Corporation in an amount in excess of $500,000 in any fiscal year commencing with fiscal year 2025, and in each case that cannot be canceled by any Acquired Corporation without penalty or further payment at no more than ninety (90) days’ notice;
(iv) any Contract relating to Indebtedness in excess of $500,000 (whether incurred, assumed, guaranteed or secured by any asset) of any Acquired Corporation, other than loans to direct or indirect wholly owned Subsidiaries, in each case in the ordinary course of business;
(v) any Contract between an Acquired Corporation and a third Person relating to the disposition or acquisition of assets (other than raw materials, components or finished products acquired in the ordinary course of business or finished products disposed of in the ordinary course of business) with a fair market value in excess of $500,000, whether by merger, sale of stock or assets or otherwise, and that contains continuing indemnities or other material obligations or any continuing “earn-out” or other contingent payment obligation on the part of an Acquired Corporation;
(vi) any Contract between any Acquired Corporation and any third Person constituting or relating to the formation, creation, operation, management or control of a joint venture, collaboration, partnership or similar revenue sharing arrangement;
(vii) any Contract that by its express terms requires an Acquired Corporation, or any successor to, or acquirer of, an Acquired Corporation, to make any payment to another Person as a result of a change of control of such Acquired Corporation (a “Change of Control Payment”) or gives another Person a right to receive or elect to receive a Change of Control Payment;
(viii) any Contract that prohibits the declaration or payment of dividends or distributions in respect of the capital stock of an Acquired Corporation, the pledging of the capital stock or other equity interests of an Acquired Corporation or the issuance of any guaranty by an Acquired Corporation;
(ix) any Contract pursuant to which any Acquired Corporation (A) is granted any license or other right or immunity (whether present or contingent, including any sublicense, option, co-existence right, right of first refusal or other preferential right, non-assert or covenant not to be sued) under any Intellectual Property Right that is material to the Acquired Corporations, taken as a whole, other than to generally commercially available software or technology available on nondiscriminatory pricing terms or (B) grants any license or other right or immunity (whether present or contingent, including any sublicense, option, co-existence right, right of first refusal or other preferential right, non-assert or covenant not to sue) under any Intellectual Property Right that is material to the Acquired Corporations, taken as a whole, other than non-exclusive licenses (1) pursuant to clinical trial agreements or supply agreements in which clinical trials or supply services are being performed for an Acquired Corporation (where such license is granted to enable the performance of such services), and other similar agreements, in each case, that are entered into by an Acquired Corporation in the ordinary course of business and (2) where the grant of rights to use any Intellectual Property Rights are incidental, and not material to, any performance under each such agreement;
(x) any Contract that is a distribution or manufacturing Contract;
(xi) any Collective Bargaining Agreement or other Contract with a labor union, works council, labor organization, or other employee representative;
(xii) any Contract that contains a put, call, right of first refusal or similar right pursuant to which any Acquired Corporation could be required to purchase or sell, or offer for purchase or sale, as applicable, any (A) equity interests of any Person or (B) assets (excluding commitments to purchase goods and products and commercially available off-the-shelf software licenses and Software-as-a-Service offerings, in each case, entered into in the ordinary course of business) or businesses for an amount in excess, in the aggregate, of $500,000;
(xiii) any Contract that is a Lease;
(xiv) any Contract with (A) a sole-source supplier or (B) any supplier not covered by clause (A) that involved the payment of more than $500,000 in the Company’s last fiscal year;
(xv) any Contract with any Governmental Body, other than any sponsored research agreements or clinical trial site agreements entered into in the ordinary course of business;
(xvi) any Contract (other than an Employee Plan) with any Affiliate (other than a Subsidiary of the Company), director or executive officer of the Company (as such term is defined in the Exchange Act), Person holding 5% or more of the Shares, or, to the knowledge of the Company, any Affiliate (other than the Company) or, to the knowledge of the Company, immediate family member of any of the foregoing;
(xvii) any Contract that indemnifies any director or executive officer of the Company or any Acquired Corporation (other than any indemnification provisions set forth in the certificate of incorporation or bylaws or comparable governing documents of the Company or any Acquired Corporation);
(xviii) any Contract that requires any capital commitment or capital expenditure (or series of capital expenditures) by the Company or any Acquired Corporation after the date of this Agreement in an amount in excess of $500,000 in the aggregate; and
(xix) any other Contract that is currently in effect and which has been filed (or is required to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Act, Securities Act or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange Securities Act;.
(iib) any Contract: (A) constituting a Company Employee Agreement under which annual salary or other stated annual cash compensation exceeds $200,000; (B) pursuant to which any of the Tetraphase Companies is or may become obligated to make any severance, termination or similar payment to any Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) above;
(iii) any Contract with any labor union or any collective bargaining agreement or similar Contract for the benefit of any Company Associate(s);
(iv) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software);
(v) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Company;
(vi) any material Contract with any distributor and any material contract with any other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(vii) any material Contract (other than any purchase order entered into in the ordinary course of business) with sole source or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viii) any Contract that provides for: (A) reimbursement of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate;
(ix) any Contract (A) that restricts the ability of the Tetraphase Companies to compete in any business or with any Person in any geographical area; (B) in which the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;
(x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into in the ordinary course of business or that do not deviate in any material respect from the standard forms of Contracts previously Made Available by the Company to Parent;
(xi) any Contract providing for any currency hedging;
(xii) any Contract requiring that any of the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2019; (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company); and
(xvii) any Contract, the termination of which would have a Company Material Adverse Effect. The Company has delivered or Made Available (including by filing with the SEC) to Parent an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as As of the date of this Agreement.
(b) Each , the Company Contract that constitutes a Company has delivered to Parent true, correct and complete copies of each Material Contract is valid and in full force and effect (except for Contracts that are expiredtogether with all legally binding amendments, terminatedmodifications, and/or not renewed during the Pre-Closing Periodschedules or supplements thereto). No Acquired Corporation nor, and is enforceable in accordance with its terms, subject to: (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”).
(c) Except as set forth in Part 2.10(c) of the Company Disclosure Schedule: (i) none of the Tetraphase Companies has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (ii) to the knowledge of the Company, no any other Person has violated or breached party is in any material respectbreach of, or committed any material default in any material respect under, any Company Material Contract; (iiiii) to the knowledge of the Company, there exists no event has occurred, and no circumstance or condition exists, that (circumstances with or without notice or lapse of time) would reasonably be expected to: (A) result in a violation or breach in respect to any material respect of any Company Material Contract; (B) give any Person the right to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received any written notice (Acquired Corporation or, to the knowledge of the Company, any other communicationparty to a Material Contract that with or without notice, lapse of time or both would constitute a material breach of or material default under any Material Contract or result in a termination right thereof or would cause or permit the acceleration of or other changes of or to any material right or obligation or the loss of any material benefit thereunder; and (iii) each Material Contract is a valid and binding agreement in full force and effect, enforceable in accordance with its terms, except as such enforcement may be subject to the Enforceability Exceptions. Since January 1, 2022, the Acquired Corporations have not received any written or, to the knowledge of the Company, oral notice regarding any actual or possible material violation or breach ofor default under any Material Contract that has not since been cured. As of the date of this Agreement, no Acquired Corporation has received any written or, to the knowledge of the Company, oral notice from any third party to any Material Contract that such party intends to terminate, not renew, repudiate, modify, or accelerate any material default under, obligation under any Company Material Contract.
Appears in 1 contract
Sources: Merger Agreement (OptiNose, Inc.)
Contracts. Except as provided in this Section 3.07, Schedule 3.07 lists all of the following contracts (written or oral) to which (a) Part 2.10(a) any of the Company Disclosure Schedule identifies, as Sellers or their respective Affiliates (other than the Purchased Companies) with respect to the Business or (b) any of the Purchased Companies is a party:
(a) contracts the performance of which is expected to involve consideration payable subsequent to the date of this Agreement, each Company Contract that constitutes a Company Material Contract Agreement in excess of $300,000 in the aggregate or $100,000 in any twelve-month period and which remains in effect as are not terminable on ninety (90) days’ notice or less without penalty or premium;
(b) contracts which restrict the ability of any of the date hereof and Purchased Companies to freely conduct the Business or which contain any covenant not to compete in any line of business, in any geographic area or with any Person;
(c) contracts under which a Tetraphase Company has remaining material rights or obligations. For purposes of this Agreement, each any of the following Purchased Companies has loaned or borrowed money or guaranteed borrowings of money (excluding (i) investments in publicly traded corporate debt instruments or governmental debt instruments in the ordinary course of business and (ii) any borrowing by any Purchased Company Contracts shall be deemed from the Lincoln National Corporation Short-Term Investment Pool);
(d) contracts between any of the Purchased Companies, on the one hand, and any Seller or any Affiliates of any Seller (other than any Purchased Companies), on the other hand;
(e) contracts pursuant to constitute which any Lien, other than a “Company Material Contract”:Permitted Lien, is placed or imposed on any Transferred Asset or any asset of any of the Purchased Companies;
(f) contracts under which the Purchased Companies or any Seller are licensors or licensees of Intellectual Property;
(g) employment agreements and employee severance agreements with Business Employees or with respect to which any of the Companies have or may have any liability;
(h) partnership, joint venture or limited liability company agreements;
(i) any Contract in effect indemnification agreement or guarantee; or
(j) any other material contract not terminable upon ninety (90) days written notice without penalty or premium. Schedule 3.07 excludes contracts of assumed or ceded reinsurance, policies of insurance and which has been filed (other contracts constituting products or is required to be filed) services sold or administered by the Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Act, or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange Act;
(ii) any Contract: (A) constituting a Company Employee Agreement under which annual salary or other stated annual cash compensation exceeds $200,000; (B) pursuant to which any of the Tetraphase Companies is or may become obligated to make any severance, termination or similar payment to any Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); , agency or commission agreements, leases and subleases of real property, licenses and other agreements related to the use of Computer Programs, Business Employee Plans, and the Related Agreements. None of (Da) pursuant to which any of the Tetraphase Companies is Sellers or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) above;
(iii) any Contract with any labor union or any collective bargaining agreement or similar Contract for the benefit of any Company Associate(s);
(iv) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company their respective Affiliates (other than non-exclusive licenses to unmodified commercially available third party software);
(v) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Company;
(vi) any material Contract with any distributor and any material contract with any other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(vii) any material Contract (other than any purchase order entered into in the ordinary course of business) with sole source or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viii) any Contract that provides for: (A) reimbursement of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate;
(ix) any Contract (A) that restricts the ability of the Tetraphase Companies to compete in any business or with any Person in any geographical area; (B) in which the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Purchased Companies, taken as a whole, as currently conducted;
(x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into in the ordinary course of business or that do not deviate in any material respect from the standard forms of Contracts previously Made Available by the Company to Parent;
(xi) any Contract providing for any currency hedging;
(xii) any Contract requiring that any of the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2019; (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company); and
(xvii) any Contract, the termination of which would have a Company Material Adverse Effect. The Company has delivered or Made Available (including by filing with the SEC) to Parent an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as of the date of this Agreement.
(b) the Purchased Companies or, to the knowledge of Sellers, any other party is in breach of or default under any contract identified on Schedule 3.07. Each Company Contract that constitutes a Company Material Contract such contract is valid and in full force and effect (except for Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period), and is valid and enforceable in accordance with its terms, subject to: (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”).
(c) Except as set forth in Part 2.10(c) of the Company Disclosure Schedule: (i) none of the Tetraphase Companies has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (ii) to the knowledge of the Company, no other Person has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (iii) to the knowledge of the Company, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) would reasonably be expected to: (A) result in a violation or breach in any material respect of any Company Material Contract; (B) give any Person the right to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received any written notice (or, to the knowledge of the Company, any other communication) regarding any actual or possible material violation or breach of, or material default under, any Company Material Contract.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Lincoln National Corp)
Contracts. (a) Part 2.10(a) of the Company Disclosure Schedule identifies, as of the date of this Agreement, each Company Contract that constitutes a Company Material Contract and which remains in effect as of the date hereof and under which a Tetraphase Company has remaining material rights or obligations. For purposes of this Agreement, each of the following Company Contracts shall be deemed to constitute a “Company Material Contract”"COMPANY MATERIAL CONTRACT":
(i) any Acquired Corporation Contract in effect and which has been filed (or that is required by the rules and regulations of the SEC to be filed) by the Company filed as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Act, or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange ActCompany SEC Documents;
(ii) any Contract: (A) constituting a Company Employee Agreement under which annual salary or other stated annual cash compensation exceeds $200,000; (B) Acquired Corporation Contract relating to the employment of any employee, and any Contract pursuant to which any of the Tetraphase Companies Acquired Corporations is or may become obligated to make any severance, termination termination, bonus or similar relocation payment to any Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar other payment (other than payments constituting bonuses in respect of salary) in excess of $100,000, to any current or commissions paid in the ordinary course of business); former employee or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) abovedirector;
(iii) any Acquired Corporation Contract with any labor union relating to the acquisition, transfer, development, sharing or any collective bargaining agreement or similar Contract for the benefit license of any Company Associate(smaterial Proprietary Asset (except for any Acquired Corporation Contract pursuant to which (A) any material Proprietary Asset is licensed to the Acquired Corporations under any third party software license generally available for sale to the public, or (B) any material Proprietary Asset is licensed by any of the Acquired Corporations to any Person on a non-exclusive basis);
(iv) each material any Acquired Corporation Contract pursuant to which provides for indemnification of any Intellectual Property Rights officer, director or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software)employee;
(v) each material any Acquired Corporation Contract pursuant creating or relating to which any Intellectual Property Rights partnership or Intellectual Property incorporated into joint venture or any Company Product are licensed by any Tetraphase Companysharing of revenues, profits, losses, costs or liabilities;
(vi) any material Acquired Corporation Contract with that involves the payment or expenditure of $100,000 or more in any distributor and any material contract with any other reseller 12-month period or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other more than confidentiality or nondisclosure agreements entered into $200,000 in the ordinary course aggregate that may not be terminated by the applicable Acquired Corporation (without penalty) within sixty (60) days after the delivery of businessa termination notice by the applicable Acquired Corporation;
(vii) any material Acquired Corporation Contract (other than any purchase order entered into in the ordinary course of business) with sole source contemplating or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viii) any Contract that provides for: involving (A) reimbursement of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate;
(ix) any Contract (A) that restricts the ability of the Tetraphase Companies to compete in any business or with any Person in any geographical area; (B) in which the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;
(x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into in the ordinary course of business or that do not deviate in any material respect from the standard forms of Contracts previously Made Available by the Company to Parent;
(xi) any Contract providing for any currency hedging;
(xii) any Contract requiring that any of the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 100,000 in the fiscal year ending December 31aggregate, 2019; or (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 100,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020aggregate;
(xviviii) any Acquired Corporation Contract imposing any restriction on the right or ability of any Acquired Corporation to (A) compete with any other Person, (B) acquire any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company product or other material asset or any services from any other Person, sell any material product or other material asset to or perform any services for any other Person or transact business or deal in any other manner with any other Person, or (without penalty in excess of $75,000C) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality develop or nondisclosure agreements entered into by distribute any Tetraphase Company)material technology; and
(xviiix) any other Acquired Corporation Contract, the termination if a breach of which would such Acquired Corporation Contract could reasonably be expected to have a Company Material Adverse Effect. The Company has delivered or Made Available Effect on the Acquired Corporations (including by filing with the SEC) to Parent an accurate and complete copy of each Company Contract that constitutes taken as a Company Material Contract as of the date of this Agreementwhole).
(b) Each Company Contract that constitutes a Company Material Contract is valid and in full force and effect (except for Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period)effect, and is enforceable in accordance with its terms, subject to: (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”).
(c) Except as set forth in Part 2.10(c) None of the Company Disclosure Schedule: (i) none of the Tetraphase Companies Acquired Corporations has violated or breached in any material respectbreached, or committed any material default in any material respect under, any Company Material Contract; (ii) to the knowledge of . To the Company's knowledge, no other Person has violated or breached in any material respectbreached, or committed any material default in any material respect under, any Company Material Contract; .
(iiid) to the knowledge of To the Company's knowledge, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) would could reasonably be expected to: to (Ai) result in a material violation or breach in of any material respect provision of any Company Material ContractContract by any of the Acquired Corporations; (Bii) give any Person the right to declare a material default in or exercise any material respect remedy under any Company Material Contract; (Ciii) to the Company's knowledge, give any Person the right to receive or require a material rebate, chargeback, penalty or change in delivery schedule under any Company Material Contract; (iv) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (Dv) give any Person the right to cancelcancel or terminate, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received any written notice (or, to the knowledge of the Company, any other communication) regarding any actual or possible material violation or breach of, or material default underrespect, any Company Material Contract.
(e) None of the Acquired Corporations is a guarantor or otherwise liable for any liability or obligation (including indebtedness) of any other Person other than any of the Acquired Corporations.
(f) Schedule 2.7(f) of the Company Disclosure Schedule provides a list of all Company Material Contracts (including all amendments thereto). The Company has provided or made available to Parent a copy of each Company Material Contract (including all amendments thereto) listed in Schedule 2.7(g) of the Company Disclosure Schedule, other than Company Material Contracts filed as exhibits to the Company SEC Documents and all copies of all amendments to the Company Material Contracts filed as exhibits to the Company SEC Documents, to the extent such amendments have not been filed with the SEC.
(g) Neither Company nor any Acquired Corporation is a party to any contract with the United States government or to any other material Government Contract.
Appears in 1 contract
Sources: Merger Agreement (Globalnet Inc)
Contracts. (a) Part 2.10(aSchedule 6.15(a) of the Company Disclosure Schedule identifies, sets forth as of the date of this Agreement, each Company Contract that constitutes a Company Material Contract Execution Date and which remains in effect will be updated to set forth as of the date hereof and under which a Tetraphase Company has remaining material rights or obligations. For purposes of this Agreement, Closing Date each of the following Company Contracts shall be deemed to constitute a “Company Material Contract”Transferred Contract described below:
(i) any Contract in effect and which has been filed Contractual Obligation (or is required group of related Contractual Obligations) the performance of which involves annual payments to or by Bayer and its Affiliates in the aggregate in excess of $[**], other than any Contractual Obligation which by its terms can be filedterminated upon no greater than sixty (60) by the Company as an exhibit pursuant days’ notice without material penalty or any further obligation or Liability to Item 601(b)(10) Bayer or any of Regulation S-K under the Exchange Act, or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange Actits Affiliates;
(ii) any Contract: (A) constituting a Company Employee Agreement under which annual salary or other stated annual cash compensation exceeds $200,000; (B) pursuant to which any licenses of the Tetraphase Companies is or may become obligated to make any severance, termination or similar payment to any Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) aboveIntellectual Property;
(iii) any Contract with any labor union Contractual Obligation consisting of a partnership, limited liability company or any collective bargaining agreement or similar Contract for the benefit of any Company Associate(s)joint venture agreement;
(iv) each material Contract pursuant any Contractual Obligation that limits or purports to which limit the ability of any Intellectual Property Rights Person to compete in any line of business, with any other Person or Intellectual Property that has been incorporated into in any Company Product and is licensed to any Tetraphase Company (geographic area, other than non-exclusive licenses to unmodified commercially available third party software)employment agreements entered into in the Ordinary Course of Business;
(v) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property incorporated into Contractual Obligation with any Company Product are licensed by any Tetraphase Company;Governmental Authority; and
(vi) any material Contract with any distributor and any material contract with any other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(vii) any material Contract (other than any purchase order entered into in the ordinary course of business) with sole source or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viii) any Contract that provides for: (A) reimbursement of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate;
(ix) any Contract (A) that restricts the ability of the Tetraphase Companies to compete in any business or with any Person in any geographical area; (B) in which the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;
(x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into in the ordinary course of business or that do Contractual Obligation not deviate in any material respect from the standard forms of Contracts previously Made Available by the Company to Parent;
(xi) any Contract providing for any currency hedging;
(xii) any Contract requiring that any of the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract listed above that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved material to the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2019; (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company)Bayer Business; and
(xviib) Schedule 6.15(b) sets forth as of the Execution Date and will be updated to set forth as of the Closing Date each Joint Contract described below:
(i) any ContractJoint Contract in which the aggregate payments attributable to the Bayer Business exceeds $[**] in the aggregate;
(ii) any Joint Contract that, with regard to the termination Bayer Business, limits or purports [**] = Portions of which would this exhibit have been omitted pursuant to a Company Material Adverse Effectconfidential treatment request. The Company An unredacted version of this exhibit has delivered or Made Available (including by filing been filed separately with the SECCommission. to limit the ability of any Person to compete in the Business, with any other Person or in any geographic area; and
(iii) any Joint Contract not listed above that is material to Parent an the Bayer Business. Except for the Contractual Obligations described on Schedule 6.15(c), Bayer has made available to Genzyme true, accurate and complete copy copies of each Company Contract that constitutes a Company Material Contract written Contractual Obligation required to be listed on Schedules 6.15(a) and 6.15(b), in each case, as of the date of this Agreement.
(b) Each Company Contract that constitutes a Company Material Contract is valid amended or otherwise modified and in full force effect. Bayer has made available to Genzyme a written summary setting forth the terms and effect (except for Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period), conditions of each oral Contractual Obligation required to be listed on Schedules 6.15(a) and is enforceable in accordance with its terms, subject to: (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”6.15(b).
(c) Except as set forth in Part 2.10(c) of the Company Disclosure Schedule: (i) none of the Tetraphase Companies has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (ii) to the knowledge of the Company, no other Person has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (iii) to the knowledge of the Company, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) would reasonably be expected to: (A) result in a violation or breach in any material respect of any Company Material Contract; (B) give any Person the right to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received any written notice (or, to the knowledge of the Company, any other communication) regarding any actual or possible material violation or breach of, or material default under, any Company Material Contract.
Appears in 1 contract
Sources: License and Asset Purchase Agreement (Genzyme Corp)
Contracts. (a) Part 2.10(aSection 3.11(a) of the Company Disclosure Schedule identifiesLetter sets forth a correct and complete list, and the Company has made available to Parent correct and complete copies, of all Contracts (including all material amendments, modifications, extensions or renewals with respect thereto, but excluding all names, terms and conditions that have been visibly redacted in compliance with the terms of each such Contract or with applicable Legal Requirements governing the sharing of information) to which the Company is a party as of the date of this AgreementAgreement (collectively, each Company Contract that constitutes a Company Material Contract and which remains in effect as of the date hereof and under which a Tetraphase Company has remaining material rights or obligations. For purposes of this Agreement, each of the following Company Contracts shall be deemed to constitute a “Company Material ContractContracts”:):
(i) any Contract in effect and which has been filed (or is of the sort which, if the Company were a reporting company under the Exchange Act, would be required to be filed) by the Company filed as an exhibit to any report of the Company filed pursuant to the Exchange Act of the type described in Item 601(b)(10) of Regulation S-K under promulgated by the Exchange Act, or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange ActSEC;
(ii) any Contract: (A) constituting that contain a Company Employee Agreement under which annual salary or other stated annual cash compensation exceeds $200,000; (B) pursuant to which any of the Tetraphase Companies is or may become obligated to make any severance, termination or similar payment to any Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) above;
(iii) any Contract with any labor union or any collective bargaining agreement or similar Contract for the benefit of any Company Associate(s);
(iv) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software);
(v) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Company;
(vi) any material Contract with any distributor and any material contract with any other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(vii) any material Contract (other than any purchase order entered into in the ordinary course of business) with sole source or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viii) any Contract that provides for: (A) reimbursement of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate;
(ix) any Contract (A) that restricts covenant restricting the ability of the Tetraphase Companies Company to compete in any business or with any Person or in any geographical geographic area; ;
(iii) with any Affiliate of the Company;
(iv) which primarily relates to (A) the granting to the Company of any IP License in or to any Company Intellectual Property owned by a third party, with annual license fees of more than $50,000, or (B) the granting by the Company to a third party of any IP License in or to any Company Intellectual Property, with annual license fees of more than $50,000, excluding “click-wrap” or “shrink-wrap” agreements, agreements contained in or pertaining to “off-the-shelf” Software, or the terms of use or service for any web site;
(v) relating to any material joint venture, partnership or other similar arrangement involving co-investment, collaboration or partnering with a third party;
(vi) with a Governmental Entity (other than ordinary course Contracts with Governmental Entities as a customer);
(vii) pursuant to which any Indebtedness of the Company is outstanding or may be incurred or pursuant to which the Company has guaranteed any Indebtedness of any other Person (other than the Company and excluding Company trade payables arising in the ordinary course of business);
(viii) pursuant to which the Company or any Tetraphase Company other party thereto has granted development rightscontinuing obligations, “most favored nation” pricing provisions rights or interests relating to the research, development, clinical trial, distribution, supply, manufacture, marketing or distribution rights relating to co-promotion of, or collaboration with respect to, any product or product candidate; (C) in candidate for which the Company is currently engaged in research or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating development, including manufacture or supply services or Contracts with contract research organizations for clinical trials-related services; and
(ix) which are to any product extent executory and relate to (A) the disposition or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor acquisition of any third party, in each case which restriction would material assets or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;
(x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligationproperties, other than Contracts entered into dispositions or acquisitions in the ordinary course of business or that do not deviate in any material respect from the standard forms of Contracts previously Made Available by the Company to Parent;
(xi) any Contract providing for any currency hedging;
(xii) any Contract requiring that any of the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposalbusiness, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2019; (B) requires by its terms the payment or delivery of cash any merger or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company); and
(xvii) any Contract, the termination of which would have a Company Material Adverse Effect. The Company has delivered or Made Available (including by filing with the SEC) to Parent an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as of the date of this Agreementbusiness combination transaction.
(b) Each Company Contract that constitutes a Company Material Contract is valid and binding on the Company and, to the Knowledge of the Company, each other party thereto, subject to the Bankruptcy and Equity Exception, and is in full force and effect (except for Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period)effect, and is enforceable in accordance with its termsthe Company has performed all obligations required to be performed by it before the date hereof under each Company Contract and, subject to: to the Knowledge of the Company, each other party to each Company Contract has (i) laws performed all obligations required to be performed by it before the date hereof under such Company Contract, except for such failures to be in compliance as would not, individually or in the aggregate, reasonably be expected to result in finding of general application relating to bankruptcymaterial breach thereof, insolvency and the relief of debtors; and (ii) rules of law governing specific performancehas not expressed to the Company an intention to repudiate, injunctive relief and other equitable remedies (the “Enforceability Exceptions”)terminate or non-renew it.
(c) Except The Company has not received or enjoyed any benefit, inducement or incentive from any Governmental Entity which will, as set forth in Part 2.10(ca result of this Agreement or the Transactions or the reduction of or (should it occur) of the Company Disclosure Schedule: (i) none of the Tetraphase Companies has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (ii) to the knowledge cessation of the Company’s business operations in the geographic area where they are currently conducted or the reduction in force of or (should it occur) the termination of all or substantially all Company employees, no other Person has violated or breached result in any material respectclawback, recapture, recoupment, repayment obligation, penalty, Tax or committed any default in any material respect under, any Company Material Contract; (iii) to the knowledge of the Company, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) would reasonably be expected to: (A) result in a violation or breach in any material respect of any Company Material Contract; (B) give any Person the right to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received any written notice (or, to the knowledge of the Company, any other communication) regarding any actual or possible material violation or breach of, or material default under, any Company Material Contractsuch liability.
Appears in 1 contract
Contracts. (a) Part 2.10(aSection 5.9(a) of the Company Disclosure Schedule identifiessets forth an accurate and complete list of each material written and an accurate and complete description of any material oral contract, as license or agreement (including any and all amendments thereto) to which the Company or any of the date of this Agreement, each Subsidiaries is a party or by which the Company Contract that constitutes a Company Material Contract and which remains in effect as or any of the date hereof and under Subsidiaries is bound which a Tetraphase Company has remaining material rights or obligations. For purposes of this Agreement, each of the following Company Contracts shall be deemed to constitute a “Company Material Contract”:
(i) relates to the borrowing of money or the guaranty of any Contract in effect and which has been filed (or is required obligation to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Act, or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange Act;
borrow money; (ii) any Contract: involves revenues or expenditures in excess of $200,000 (A) constituting a Company Employee Agreement under which annual salary or other stated annual cash compensation exceeds $200,000; (B) pursuant to which any of the Tetraphase Companies is or may become obligated to make any severance, termination or similar payment to any Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) above;
(iii) any Contract with any labor union or any collective bargaining agreement or similar Contract for the benefit of any Company Associate(s);
(iv) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property that has been incorporated into any Company Product excluding purchase and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software);
(v) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Company;
(vi) any material Contract with any distributor and any material contract with any other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements sale orders entered into in the ordinary course of business;
consistent with past practice); (viiiii) any material Contract (other than any purchase order entered into in the ordinary course of business) with sole source is a collective bargaining agreement or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viii) any Contract that provides for: (A) reimbursement of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated similar agreement with any Legal Proceeding labor union or the defense thereof; organization within or (B) indemnification of any Company Associate;
(ix) any Contract (A) that restricts the ability outside of the Tetraphase Companies to compete in any business or with any Person in any geographical areaUnited States; (Biv) in which obligates the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions Subsidiary not to compete with any business or marketing which otherwise restrains or distribution rights relating to any product or product candidate; (C) in which prevents the Company or any Tetraphase of the Subsidiaries from carrying on any lawful business (excluding customary restrictive covenants contained in agreements identified pursuant to clause (i) above); (v) relates to employment, compensation, severance, termination, retention, change of control, stock option or other equity-based compensation, consulting or indemnification between the Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially Subsidiary and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;
(x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into in the ordinary course of business or that do not deviate in any material respect from the standard forms of Contracts previously Made Available by the Company to Parent;
(xi) any Contract providing for any currency hedging;
(xii) any Contract requiring that any of the Tetraphase Companies give any written notice their respective current or provide any information former officers, directors, employees or consultants who are entitled to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration in an amount or having a value compensation thereunder in excess of $200,000 in the fiscal year ending December 31, 201925,000 per annum; (Bvi) requires by its terms transfers or grants any rights or licenses under, or limits the payment or delivery use of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020Company Intellectual Property; (Cvii) involved imposes any restriction on the performance declaration or payment of services having a value in excess dividends or similar distributions by the Company or any of $200,000 in the fiscal year ended December 31, 2019Subsidiaries; or (Dviii) requires is material to the assets, business, operations or financial condition of the Company and the Subsidiaries taken as a whole (collectively, the "Contracts"). The Company previously has furnished or made available to the Buyer true and correct copies of all Contracts. To the Company's Knowledge, all of the Contracts are enforceable by its the Company or the Subsidiary which is a party thereto in accordance with their terms except to the performance extent that such enforceability (a) may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors' rights generally, and (b) is subject to general principles of services having equity and public policy. Except as set forth in Section 5.9(a) of the Disclosure Schedule, neither the Company nor any of the Subsidiaries is in breach or default under (and no event has occurred which with notice or the passage of time or both would constitute a value breach or default under) any agreements listed or required to be listed in excess Section 5.9(a) of $200,000 the Disclosure Schedule nor, to the Knowledge of the Company, is any other party to any of the agreements listed or required to be listed in Section 5.9(a) of the Disclosure Schedule in default thereunder (and no event has occurred which with notice or the passage of time or both would constitute a breach or default thereunder); excluding, however, in each instance, breaches or defaults which, individually or in the fiscal year ending December 31aggregate, 2020;
(xvi) any material Contract that has a term of more than one year and which may would not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company); and
(xvii) any Contract, the termination of which would expected to have a Company Material Adverse Effect. The Company has delivered or Made Available (including by filing with the SEC) to Parent an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as of the date of this Agreement.
(b) Each Assuming that the shareholder approval contemplated by Section 8.2 is obtained, no payment or benefit which has been, will or may be made by the Company Contract that constitutes a Company Material Contract is valid and or any Subsidiary in full force and effect (except for Contracts that are expired, terminated, and/or not renewed during connection with the Pre-Closing Period), and is enforceable transactions contemplated hereby has failed or will fail to be deductible by such entity pursuant to Section 280G of the Code or has resulted or will result in accordance with its terms, subject to: (i) laws the imposition of general application relating any excise tax pursuant to bankruptcy, insolvency and Section 280G or 4999 of the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”).
(c) Code. Except as set forth in Part 2.10(cSection 5.9(b) of the Company Disclosure Schedule: (i) none , neither the Company nor any Subsidiary is a party to any contract, plan, program or other agreement which contains a "change in control," "potential change in control" or similar provision or which could result in a potential "parachute payment" within the meaning of Section 280G of the Tetraphase Companies has violated or breached Code. Except as set forth in any material respect, or committed any default in any material respect under, any Company Material Contract; (iiSection 5.9(b) to the knowledge of the CompanyDisclosure Schedule, no other Person has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (iii) to the knowledge consummation of the Company, no event has occurred, and no circumstance transactions contemplated hereby will not (either alone or condition exists, that (with upon the passage of time and/or occurrence of any additional acts or without notice or lapse of time) would reasonably be expected to: (Aevents) result in a violation any payment (severance pay or breach in otherwise) becoming due from the Company or any material respect Subsidiary to any person or accelerate the time of payment or vesting, or increase the amount of compensation due, any person; excluding, however, any such payments, accelerations or increases which could have occurred upon the passage of time and/or occurrence of any Company Material Contract; (B) give any Person additional acts or events even if the right to declare a default in any material respect under any Company Material Contract; (C) give any Person "change of control" or "potential change of control" occurring upon the right to accelerate in any material respect the maturity or performance execution and delivery of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 this Agreement and the date of this Agreement, none consummation of the Tetraphase Companies has received any written notice (or, to the knowledge of the Company, any other communication) regarding any actual or possible material violation or breach of, or material default under, any Company Material Contracttransactions contemplated herein did not occur.
Appears in 1 contract
Sources: Stock Purchase Agreement (Day International Group Inc)
Contracts. (ai) Part 2.10(aSection 3.12(d)(i) of the Acquired Company Disclosure Schedule identifieslists, as of the date of this AgreementAgreement Date, each Company Contract that constitutes a Company Material Contract and which remains in effect as of the date hereof and under which a Tetraphase Company has remaining material rights all licenses or obligations. For purposes of this Agreement, each of the following Company Contracts shall be deemed to constitute a “Company Material Contract”:
(i) any Contract in effect and which has been filed (or is required to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Act, or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange Act;
(ii) any Contract: (A) constituting a Company Employee Agreement under which annual salary or other stated annual cash compensation exceeds $200,000; (B) pursuant to which an Acquired Company or any of the Tetraphase Companies its Subsidiaries is a party or may become obligated to make any severance, termination or similar payment to any by which such Acquired Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies its Subsidiaries is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) above;
(iii) any Contract with any labor union or any collective bargaining agreement or similar Contract for the benefit of any Company Associate(s);
(iv) each material Contract bound pursuant to which any Intellectual Property Rights Right or Intellectual Property that has been incorporated into any Company Product and Technology is licensed to such Acquired Company or any Tetraphase Company of its Subsidiaries (other than (A) non-exclusive software licenses or software-as-a-service agreements with respect to unmodified generally commercially available third party softwareoff the shelf software having an annual subscription or annual total cost not greater than $10,000, including, Shrink-Wrap Software and Open Source Materials, (B) nondisclosure agreements entered in the Ordinary Course of Business, and (C) licenses of Intellectual Property Rights that are contained in a Standard Form Agreement);, (collectively “Inbound Licenses”).
(vii) Section 3.12(d)(ii) of the Acquired Company Disclosure Schedule lists, as of the Agreement Date, each material license or Contract to which an Acquired Company or any of its Subsidiaries is a party or by which such Acquired Company or any of its Subsidiaries is bound pursuant to which such Acquired Company or any Intellectual Property Rights of its Subsidiaries has granted to any Person any license under, agreed not to assert or Intellectual Property incorporated into enforce, or in which any Person has otherwise received or acquired any right or interest in, any Acquired Company Product are licensed by any Tetraphase Company;
Owned IP (vi) any material Contract with any distributor and any material contract with any other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or (A) nondisclosure agreements entered into in the ordinary course Ordinary Course of business;
(vii) any material Contract (other than any purchase order entered into in the ordinary course of business) with sole source or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viii) any Contract that provides for: (A) reimbursement of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate;
(ix) any Contract (A) that restricts the ability of the Tetraphase Companies to compete in any business or with any Person in any geographical areaBusiness; (B) in which nonexclusive licenses to provide the Acquired Company Products to such Acquired Company’s or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidateof its Subsidiaries’ customers entered in the Ordinary Course of Business on a Standard Form Agreement; and (C) in which the access or licenses to Acquired Company or any Tetraphase IP granted to employees, consultants, and independent contractors of an Acquired Company pursuant to Personnel Agreements on a Standard Form Agreement) (collectively, “Outbound Licenses”).
(iii) Each Acquired Company has agreed made available to purchase Buyer a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;
(x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into in the ordinary course of business or that do not deviate in any material respect from the standard forms of Contracts previously Made Available by the Company to Parent;
(xi) any Contract providing for any currency hedging;
(xii) any Contract requiring that any of the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2019; (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company); and
(xvii) any Contract, the termination of which would have a Company Material Adverse Effect. The Company has delivered or Made Available (including by filing with the SEC) to Parent an accurate correct and complete copy of each standard form of Contract used by such Acquired Company Contract that constitutes a Company Material Contract as and any of the date of this Agreement.
(b) Each Company Contract that constitutes a Company Material Contract is valid and its Subsidiaries currently in full force and effect (except for Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period), and is enforceable in accordance connection with its termsbusiness, subject to: including (ias applicable and if any exist) laws each of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”).
(c) Except as set forth in Part 2.10(c) of the Company Disclosure Schedule: (i) none of the Tetraphase Companies has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (ii) to the knowledge of the Company, no other Person has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (iii) to the knowledge of the Company, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) would reasonably be expected toits unmodified standard forms of: (A) result in a violation Employee Agreement containing any assignment or breach in license of Intellectual Property Rights or any material respect of any Company Material Contractconfidentiality provision; (B) give consulting or independent contractor agreement containing any Person the right to declare a default in assignment or license of Intellectual Property Rights or any material respect under any Company Material Contractconfidentiality provision; (C) give any Person the right to accelerate in any material respect the maturity confidentiality or performance of any Company Material Contractnondisclosure agreement; or (D) give any Person the right to cancel, terminate customer contract providing for non-exclusive use of or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received any written notice (or, access to the knowledge of Acquired Company Products (collectively, the Company, any other communication) regarding any actual or possible material violation or breach of, or material default under, any Company Material Contract“Standard Form Agreements”).
Appears in 1 contract
Sources: Securities Purchase Agreement (Tempo Automation Holdings, Inc.)
Contracts. (a) Part 2.10(aSection 3.11(a) of the Company Disclosure Schedule identifies, sets forth a complete and accurate list of all contracts and agreements to which the Company is a party as of the date of this AgreementAgreement that are material to the business, each Company Contract that constitutes a Company Material Contract and which remains in effect as financial condition or results of operations of the date hereof Company and under which its Subsidiaries, taken as a Tetraphase Company has remaining material rights or obligations. For purposes of this Agreementwhole, each of the following Company Contracts shall be deemed to constitute a “Company Material Contract”:
including without limitation (i) a list of customers currently under maintenance, (ii) list of open purchase orders for statements of work with revenue of at least $100,000, (iii) any Contract agreement, contract or commitment (A) in effect and connection with which has been filed (or is required pursuant to be filed) by which the Company as an exhibit or any of its Subsidiaries has made a binding commitment to a customer for future product function or performance, and (B) in connection with which or pursuant to which the Company and its Subsidiaries are committed to spend, in the aggregate, more than $250,000 during the current fiscal year or during the next fiscal year; (iv) any non-competition or other agreement that prohibits or otherwise restricts, in any material respect, the Company or any of its Subsidiaries from freely engaging in business anywhere in the world; (v) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act, or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange Act;
(ii) any Contract: (A) constituting a Company Employee Agreement under which annual salary or other stated annual cash compensation exceeds $200,000; (B) pursuant to which any of the Tetraphase Companies is or may become obligated SEC) with respect to make any severance, termination or similar payment to any the Company Associate or any spouse, heir or Representative of any Company Associateand its Subsidiaries; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) above;
(iii) any Contract with any labor union or any collective bargaining agreement or similar Contract for the benefit of any Company Associate(s);
(iv) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software);
(v) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Company;
(vi) any material Contract Employment Agreement or consulting agreement with any distributor and any material contract with any executive officer or other reseller employee of the Company or sales representativemember of the Company Board earning annual base compensation in excess of $100,000, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(vii) any material Contract (other than contract which would prohibit or materially delay the consummation of the Merger or any purchase order entered into in of the ordinary course of business) with sole source or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
transactions contemplated by this Agreement and (viii) any Contract that provides for: (A) reimbursement of any Company Associate for, or advancement contract pursuant to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate;
(ix) any Contract (A) that restricts the ability of the Tetraphase Companies to compete in any business or with any Person in any geographical area; (B) in which the Company or any Tetraphase of its Subsidiaries is obligated to pay future royalties (collectively, the “Company Material Contracts”). The Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating made available to any product or product candidate; the Buyer a complete and accurate copy of each Company Material Contract.
(Cb) in which Each Company Material Contract is valid and binding on the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a wholeits Subsidiaries, as currently conducted;
(x) any Contract incorporating applicable, and is in full force and effect except to the extent it has previously expired in accordance with its terms or providing for any material guarantywhere the failure to be in full force and effect, warranty, sharing of liabilities individually or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into in the ordinary course of business or that do aggregate, is not deviate in any material respect from the standard forms of Contracts previously Made Available by the Company reasonably likely to Parent;
(xi) any Contract providing for any currency hedging;
(xii) any Contract requiring that any of the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2019; (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company); and
(xvii) any Contract, the termination of which would have a Company Material Adverse Effect. The Neither the Company has delivered or Made Available (including by filing with nor any of its Subsidiaries nor, to the SEC) Company’s Knowledge, any other party to Parent an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as of the date of this Agreement.
(b) Each Company Contract that constitutes a any Company Material Contract is valid and in full force and effect violation of or in default under (nor does there exist any condition which, upon the passage of time or the giving of notice or both, would cause such a violation of or default under) any Company Material Contract, except for Contracts that violations or defaults that, individually or in the aggregate, are expired, terminated, and/or not renewed during the Pre-Closing Period), and is enforceable in accordance with its terms, subject to: (i) laws of general application relating reasonably likely to bankruptcy, insolvency and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”)have a Company Material Adverse Effect.
(c) Except as set forth disclosed in Part 2.10(c) of the Company Disclosure Schedule: (i) none of the Tetraphase Companies has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (ii) SEC Reports filed prior to the knowledge of the Company, no other Person has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (iii) to the knowledge of the Company, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) would reasonably be expected to: (A) result in a violation or breach in any material respect of any Company Material Contract; (B) give any Person the right to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none neither the Company nor any of its Subsidiaries has entered into any transaction with any Affiliate of the Tetraphase Companies has received Company or any written notice (or, of its Subsidiaries or any transaction that would be subject to the knowledge proxy statement disclosure pursuant to Item 404 of the Company, any other communication) regarding any actual or possible material violation or breach of, or material default under, any Company Material Contract.Regulation S-K.
Appears in 1 contract
Sources: Merger Agreement (Matrixone Inc)
Contracts. As of the Offer Date, neither Seller nor any of the Transferred Subsidiaries is a party to or bound by, nor has Seller or any Transferred Subsidiary made any commitment with respect to any of the following with respect to the Business:
(a) Part 2.10(a) any Contract relating to the pending acquisition or disposition of the Company Disclosure Schedule identifiesany business or product line (whether by merger, as sale of the date stock, sale of this Agreement, each Company Contract that constitutes a Company Material Contract and which remains in effect as of the date hereof and under which a Tetraphase Company has remaining material rights assets or obligations. For purposes of this Agreement, each of the following Company Contracts shall be deemed to constitute a “Company Material Contract”:otherwise);
(ib) any Contract in effect and which has been filed (creates any Encumbrance on any Transferred Asset or is required to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Act, or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange ActTransferred IPR;
(iic) any Contract: Contract concerning the establishment or operation by the Business of a partnership, joint venture or limited liability company;
(Ad) constituting a Company Employee Agreement under which annual salary any Contract relating to the Business concerning or other stated annual cash compensation exceeds $200,000; (B) pursuant to which any of the Tetraphase Companies is containing restrictions on business activities, including noncompetition or may become obligated to make any severance, termination or similar payment to any Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment nonsolicitation (other than payments constituting bonuses noncompetition or commissions paid nonsolicitation agreements entered into with Employees in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) above;
(iiie) any employment Contract (other than "at will" employment Contracts and Contracts arising as a matter of applicable Law) with any Transferred Employee or consulting Contract with any Person (other than consulting Contracts terminable by Seller or its Subsidiaries without cause or penalty and with no more than 30 days advance notice) providing for fixed annual cash compensation in excess of $50,000 or any employee retention, stay or bonus Contracts;
(f) any collective bargaining, workers' council or similar Contract relating to the Business entered into with any trade union, workers' council or other group of employee representatives;
(g) any Contract with (excluding Assigned Leases and Subsidiary Leases) under which the consequences of a default or termination would reasonably be expected to have a Seller Material Adverse Effect; or
(h) any labor union Contract (excluding Assigned Leases and Subsidiary Leases) which contains any provisions requiring Seller or any collective bargaining agreement or similar Contract for the benefit of Transferred Subsidiary to indemnify any Company Associate(s);
(iv) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company other party (other than non-exclusive licenses to unmodified commercially available third party software);
(vi) each material Contract pursuant to indemnities against breach of the obligations contained in Contracts which any Intellectual Property Rights or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Company;
(vi) any material Contract with any distributor and any material contract with any other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements were entered into in the ordinary course of business;
, including ordinary course, generic director, officer and employee indemnification agreements not relating to specific or particular subjects and (viiii) any material Contract (other than any purchase order indemnities against IPR infringement contained in non-exclusive licenses entered into in the ordinary course of business) with sole source or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viii) any Contract that provides for: (A) reimbursement of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate;
(ix) any Contract (A) that restricts the ability of the Tetraphase Companies to compete in any business or with any Person in any geographical area; (B) in which the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;
(x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into in the ordinary course of business or that do not deviate in any material respect from the standard forms of Contracts previously Made Available by the Company to Parent;
(xi) any Contract providing for any currency hedging;
(xii) any Contract requiring that any of the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2019; (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company); and
(xvii) any Contract, the termination of which would have a Company Material Adverse Effect. The Company has delivered or Made Available (including by filing with the SEC) to Parent an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as of the date of this Agreement.
(b) Each Company Contract that constitutes a Company Material Contract is valid and in full force and effect (except for Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period), and is enforceable in accordance with its terms, subject to: (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”course).
(c) Except as set forth in Part 2.10(c) of the Company Disclosure Schedule: (i) none of the Tetraphase Companies has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (ii) to the knowledge of the Company, no other Person has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (iii) to the knowledge of the Company, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) would reasonably be expected to: (A) result in a violation or breach in any material respect of any Company Material Contract; (B) give any Person the right to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received any written notice (or, to the knowledge of the Company, any other communication) regarding any actual or possible material violation or breach of, or material default under, any Company Material Contract.
Appears in 1 contract
Sources: Purchase Agreement
Contracts. (a) Part 2.10(a) 2.10 of the Company Parent Disclosure Schedule identifies, as of the date of this Agreement, identifies each Company Contract that constitutes a Company “Parent Material Contract and which remains in effect as Contract” of the date hereof and under which a Tetraphase Company has remaining material rights or obligationsto Parent. For purposes of this the Agreement, each of the following Company Contracts shall be deemed to constitute a “Company Parent Material Contract”:
(i) any Contract in effect and which has been filed (or is required to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Act, or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange Act;
(ii) any Contract: (A) constituting a Company Employee Agreement under which annual salary relating to the employment of, or other stated annual cash compensation exceeds $200,000; the performance of services by, any employee or consultant, (B) pursuant to which any of the Tetraphase Companies Parent is or may become obligated to make any severance, termination termination, change in control or similar payment to any Company Associate current or any spouseformer employee or director, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies Parent is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses base salary or commissions paid normal commissions) in excess of Cdn$10,000 to any current or former employee or director;
(ii) any material Contract relating to the acquisition, transfer, development, sharing or license of any Proprietary Asset (except for any Contract pursuant to which (A) any Proprietary Asset is licensed to the Parent under any third party software license generally available to the public, (B) any Proprietary Asset which is not material to Parent’s business and is licensed by Parent to any Person on a non- exclusive basis or (C) any Proprietary Asset which is licensed as part of a sale of the Parent’s products in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) above;
(iii) any Contract with pursuant to which (a) any labor union monies have been loaned to Parent, or (B) Parent has granted a security interest in any collective bargaining agreement or similar Contract for the benefit of any Company Associate(s)its assets;
(iv) each material any Contract pursuant imposing any restriction on the right or ability of Parent to which compete with any Intellectual Property Rights or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software)Person;
(v) each material any Contract pursuant (other than Contracts evidencing options to which purchase Parent Common Stock) (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any Intellectual Property Rights securities, (B) providing any Person with any pre-emptive right, right of participation, or Intellectual Property incorporated into similar right with respect to any Company Product are licensed by securities, or (C) providing Parent with any Tetraphase Companyright of first refusal with respect to, or right to repurchase or redeem, any securities;
(vi) any material Contract with incorporating or relating to any distributor guarantee, any warranty or any indemnity or similar obligation, except for Contracts substantially identical to the end-user licenses, support agreements, consulting agreements and any material contract with any other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in the ordinary course of businesscustomer contracts;
(vii) any material Contract (other than any purchase order entered into in the ordinary course of business) with sole source containing “standstill” or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of businesssimilar provisions;
(viii) any Contract that provides for: (A) reimbursement of to which any Company Associate forGovernmental Body is a party or under which any Governmental Body has any rights or obligations, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of directly or indirectly benefiting any Company AssociateGovernmental Body (including any subcontract or other Contract between Parent and any contractor or subcontractor to any Governmental Body);
(ix) any Contract (A) that restricts the ability of the Tetraphase Companies to compete in any business or with any Person in any geographical area; (B) in which the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;
(x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into in the ordinary course of business or that do not deviate in any material respect from the standard forms of Contracts previously Made Available by the Company to Parent;
(xi) any Contract providing for any currency hedging;
(xii) any Contract requiring that any of the Tetraphase Companies Parent give any written notice or provide any information to any Person prior to responding to considering or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition TransactionTransaction or similar transaction;
(xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xivx) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved contemplates or involves the guaranteed payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 50,000 in the fiscal year ending December 31, 2019; (B) requires by its terms aggregate or the payment of such consideration any time between the Effective Date and the date of the Agreement, or delivery of cash contemplates or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved involves the performance of services having a value in excess of $200,000 50,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company)aggregate; and
(xviixi) any ContractContract that is otherwise material to Parent and out of the ordinary course of business, including any Contract that could reasonably be expected to have a material effect on the ability of Parent to perform any of its obligations under, or to consummate any of the transactions contemplated by, the termination of which would have a Company Material Adverse EffectAgreement. The Company Parent has delivered or Made Available (including by filing with made available to the SEC) to Parent Company an accurate and complete copy of each Company any Contract that constitutes a Company Parent Material Contract as of or to the date of this AgreementAcquired Corporations.
(b) Each Company Contract that constitutes a Company Parent Material Contract is valid and in full force and effect (except for Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period)effect, and is enforceable in accordance with its terms, subject to: to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; , and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”)remedies.
(c) Except as set forth in Part 2.10(c) of the Company Disclosure Schedule: (i) none of the Tetraphase Companies Parent has not violated or breached in any material respectbreached, or committed any default in any material respect under, any Company Material Contract; (ii) Contract and, to the best of the knowledge of the CompanyParent, no other Person has violated or breached in any material respectbreached, or committed any default in any material respect under, any Company Material Contract; (iii) to . To the best of the knowledge of the Company, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) would could reasonably be expected to: to (A) result in a violation or breach in any material respect of any Company Material of the provisions of any Contract; , (B) give any Person the right to declare a default in or exercise any material respect remedy under any Company Material Contract; , (C) give any Person the right to receive or require a rebate, chargeback, penalty or change in delivery schedule under any Contract, (D) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; , or (DE) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December . Since January 31, 2018 and the date of this Agreement2007, none of the Tetraphase Companies Parent has not received any written notice (or, to the knowledge of the Company, any or other communication) communication regarding any actual or possible material violation or breach of, or material default under, any Company Material material Contract.
Appears in 1 contract
Sources: Arrangement Agreement (Counterpath Solutions, Inc.)
Contracts. Except as otherwise disclosed in Seller’s schedules:
(a) Part 2.10(a) There are no material contracts, agreements, franchises, license agreements, or other commitments to which Seller is a party by which it or any of the Company Disclosure Schedule identifiesproperties of Seller are bound;
(b) All contracts, as of the date of this Agreementagreements, each Company Contract that constitutes franchises, license agreements, and other commitments to which Seller is a Company Material Contract party or by which its properties are bound and which remains are material to the operations or financial condition of Seller are valid and enforceable by Seller in effect all material respects;
(c) Seller is not a party to or bound by, and its properties are not subject to, any material contract, agreement, other commitment or instrument; any charter or other corporate restriction; or any judgment, order, writ, injunction, decree, or award which materially and adversely affects, or in the future may (as far as Seller can now foresee) materially and adversely affect, the business, operations, properties, assets, or condition of the date hereof and under which Seller; and
(d) Seller is not a Tetraphase Company has remaining material rights party to any oral or obligations. For purposes of this Agreement, each of the following Company Contracts shall be deemed to constitute a “Company Material Contract”:
written (i) contract for the employment of any Contract in effect and officer, director, or employee which has been filed is not terminable on 30 days (or is required to be filedless) by the Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Act, or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange Act;
notice; (ii) any Contract: (A) constituting a Company Employee Agreement under which annual salary or other stated annual cash compensation exceeds $200,000; (B) pursuant to which any of the Tetraphase Companies is or may become obligated to make any severanceprofit-sharing, termination or similar payment to any Company Associate or any spousebonus, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting ofdeferred compensation, or otherwise modify, any stock option, restricted stockseverance pay, stock appreciation right pension benefit or other equity interest in any retirement plan, agreement, or arrangement covered by Title IV of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) above;
Employee Retirement Income Security Act, as amended; (iii) any Contract with any labor union agreement, contract, or any collective bargaining agreement or similar Contract for indenture relating to the benefit borrowing of any Company Associate(s);
money; (iv) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software);
(v) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Company;
(vi) any material Contract with any distributor and any material contract with any other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(vii) any material Contract (other than any purchase order entered into in the ordinary course of business) with sole source or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viii) any Contract that provides for: (A) reimbursement guarantee of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate;
(ix) any Contract (A) that restricts the ability of the Tetraphase Companies to compete in any business or with any Person in any geographical area; (B) in which the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;
(x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into one on which Seller is a primary obligor, for the borrowing of money or otherwise, excluding endorsements made for collection and other guarantees of obligations, which, in the ordinary course of business or that aggregate do not deviate in any material respect from the standard forms of Contracts previously Made Available by the Company to Parent;
exceed $5,000; (xiv) any Contract providing for any currency hedging;
(xii) any Contract requiring that any of the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash consulting or other consideration in similar contract with an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2019; (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) any material Contract that has a unexpired term of more than one year and which may not be terminated by a Tetraphase Company (without penalty or providing for payments in excess of $75,000) within 120 days after 5,000 in the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company); and
(xvii) any Contract, the termination of which would have a Company Material Adverse Effect. The Company has delivered or Made Available (including by filing with the SEC) to Parent an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as of the date of this Agreement.
(b) Each Company Contract that constitutes a Company Material Contract is valid and in full force and effect (except for Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period), and is enforceable in accordance with its terms, subject to: (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”).
(c) Except as set forth in Part 2.10(c) of the Company Disclosure Schedule: (i) none of the Tetraphase Companies has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contractaggregate; (iivi) to the knowledge of the Company, no other Person has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contractcollective bargaining agreement; (iiivii) to the knowledge agreement with any present or former officer or director of the Company, no event has occurred, and no circumstance Seller or condition exists, that (with or without notice or lapse of time) would reasonably be expected to: (A) result in a violation or breach in any material respect of any Company Material Contract; (B) give any Person the right to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contractsubsidiary; or (Dviii) give any Person the right to cancelcontract, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received any written notice (or, to the knowledge of the Company, any other communication) regarding any actual or possible material violation or breach ofagreement, or material default under, any Company Material Contractother commitment involving payments by it of more than $5,000 in the aggregate.
Appears in 1 contract
Sources: Asset Purchase Agreement (Winning Edge International, Inc.)
Contracts. (a) Part 2.10(a2.9(a) of the Company Disclosure Schedule identifies, as of the date of this Agreement, each Company Contract that constitutes a Company “Material Contract and which remains in effect as of the date hereof and under which a Tetraphase Company has remaining material rights or obligations. Contract.” For purposes of this Agreement, each of the following Company Contracts shall be deemed to constitute a “Company Material Contract”:
(i) any Contract in effect and defined benefit pension plan under which an Acquired Corporation has been filed (or is required to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Act, may have any obligations or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange Actliability;
(ii) any Contract: (A) constituting a Company Employee Agreement under which annual salary Contract that provides for indemnification of any employee, officer or other stated annual cash compensation exceeds $200,000; (B) pursuant to which director of any of the Tetraphase Companies is or may become obligated to make Acquired Corporations, other than any severance, termination or similar payment to such Contract entered into with any Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any employee of the Tetraphase Companies is Company at the level of Vice President or may become obligated above on the Company’s standard form included as Exhibit 10.7 to make any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (D) pursuant to which any of Company’s Annual Report on Form 10-K for the Tetraphase Companies is or may become obligated to grant or accelerate the vesting ofyear ended October 1, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) above2010;
(iii) any Contract imposing any restriction on the right or ability of any Acquired Corporation to compete in any line of business in any geographic area with any labor union or any collective bargaining agreement or similar Contract for the benefit of any Company Associate(s)other Person;
(iv) each material any Contract pursuant to which with any Intellectual Property Rights or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software)sole source supplier;
(v) each any Contract with any material Contract pursuant supplier (other than a sole source supplier) to which any Intellectual Property Rights or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Acquired Corporation that involved the payment of more than $5,000,000 in the Company;’s last fiscal year; and
(vi) any material Contract with any distributor and any material contract with any other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(vii) any material Contract (other than any purchase order entered into in the ordinary course of business) Contracts with sole source Affiliates, customers or single source suppliers to any Tetraphase Company of products or services, and other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viii) any Contract that provides for: (A) reimbursement of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate;
(ix) any Contract (AEmployee Plans) that restricts the ability of the Tetraphase Companies to compete in any business contemplates or with any Person in any geographical area; (B) in which the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;
(x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into in the ordinary course of business or that do not deviate in any material respect from the standard forms of Contracts previously Made Available by the Company to Parent;
(xi) any Contract providing for any currency hedging;
(xii) any Contract requiring that any of the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved involves the payment or delivery of cash or other consideration by or to any Acquired Corporation in an amount or having a an annual value in excess of $200,000 10,000,000 in the fiscal year ending December 31aggregate, 2019; (B) requires or contemplates or involves the performance of services by its terms the payment or delivery of cash or other consideration in for any Acquired Corporation having an amount or having a annual value in excess of $200,000 10,000,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company); and
(xvii) any Contract, the termination of which would have a Company Material Adverse Effectaggregate. The Company has delivered or Made Available (including by filing with the SEC) to Parent an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as of the date of this Agreement.
(b) Each Except as would not have (and would not reasonably be expected to have), individually or in the aggregate, a Material Adverse Effect, each Company Contract that constitutes a Company Material Contract is valid and in full force and effect (except for Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period)effect, and is enforceable in accordance with its terms, subject to: (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”)remedies.
(c) Except as set forth in Part 2.10(cwould not have (and would not reasonably be expected to have) of the Company Disclosure Schedulea Material Adverse Effect: (i) none of the Tetraphase Companies Acquired Corporations has violated or breached in any material respectbreached, or committed any default in any material respect under, any Material Contract, or, to the Knowledge of the Company, any Company Contract that is not a Material Contract; (ii) to the knowledge Knowledge of the Company, no other Person has violated or breached in any material respectbreached, or committed any default in any material respect under, any Company Material Contract; (iii) to the knowledge Knowledge of the Company, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) would reasonably be expected to: (A) result in a violation or breach in of any material respect of the provisions of any Company Material Contract; (B) give any Person the right to declare receive or require a default rebate, chargeback, penalty or change in any material respect delivery schedule under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31since January 1, 2018 and the date of this Agreement2010, none of the Tetraphase Companies Acquired Corporations has received any written notice (or, to the knowledge of the Company, any other communication) regarding asserting any actual or possible material violation or breach of, or material default under, any Company Material Contract.
Appears in 1 contract
Contracts. (a) Part 2.10(aExcept for this Agreement and the Other Transaction Agreements and except as disclosed on Section 3.10(a) of the Company ITC Disclosure Schedule identifiesLetter, neither ITC, nor any of its Assets, rights, properties or Subsidiaries, as of the date of this Agreementhereof, each Company Contract that constitutes is a Company Material Contract and which remains in effect as of the date hereof and under which a Tetraphase Company has remaining material rights party to or obligations. For purposes of this Agreement, each of the following Company Contracts shall be deemed to constitute a “Company Material Contract”bound by:
(i) any Contract “material contract” (as such term is defined in effect and which has been filed (or is required to be filed) by the Company as an exhibit pursuant to Item item 601(b)(10) of Regulation S-K under the Exchange Act, or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange Act);
(ii) any Contract: (A) constituting a Company Employee Agreement under which annual salary non-competition Contract or other stated annual cash compensation exceeds $200,000; (B) pursuant Contract that purports to limit in any material respect either the type of business in which ITC or any of its Subsidiaries or any of their respective Affiliates may engage or the manner or geographic area in which any of the Tetraphase Companies is or them may become obligated to make any severance, termination or similar payment to any Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest so engage in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) abovebusiness or contains exclusivity or non- solicitation provisions;
(iii) any Contract with any labor union that limits or otherwise restricts the ability of ITC or any collective bargaining agreement of its Subsidiaries to pay dividends or similar Contract for the benefit of any Company Associate(s)make distributions to its shareholders;
(iv) each material Contract pursuant to any Contract, or a series of related Contracts, under which ITC or any Intellectual Property Rights of its Subsidiaries is liable for Indebtedness in excess of $50 million, individually or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software)in the aggregate;
(v) each material any Contract pursuant that relates to collective bargaining or similar labor Contracts which cover any Intellectual Property Rights employees of ITC or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Company;its Affiliates; or
(vi) any material Contract with any distributor partnership, joint venture or similar Contract. All Contracts of the type described in this Section 3.10(a) and any material contract with any other reseller or sales representative, in each case such Contracts that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements may be entered into by ITC or any Subsidiary of ITC after the date hereof and prior to the Effective Time in accordance with Section 4.02 are referred to herein as “ITC Material Contracts”). As of the ordinary course date of business;this Agreement, complete and correct copies (including all material amendments, modifications, extensions or renewals with respect thereto) of all ITC Material Contracts have been provided to Entergy.
(viib) any material Each ITC Material Contract (other than any purchase order entered into in the ordinary course of business) with sole source or single source suppliers to any Tetraphase Company of products or servicesis a legal, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viii) any Contract that provides for: (A) reimbursement of any Company Associate for, or advancement to any Company Associate valid and binding obligation of, legal fees and enforceable against, ITC or any Subsidiary of ITC that is a party thereto, and, to the Knowledge of ITC, each other expenses associated party thereto, and is in full force and effect in accordance with any Legal Proceeding its terms, except for (i) terminations or expirations at the defense thereof; or (B) indemnification of any Company Associate;
(ix) any Contract (A) that restricts the ability end of the Tetraphase Companies to compete in any business or with any Person in any geographical area; (B) in which the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;
(x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into stated term in the ordinary course of business or that do not deviate in any material respect from the standard forms of Contracts previously Made Available by the Company to Parent;
(xi) any Contract providing for any currency hedging;
(xii) any Contract requiring that any of the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2019; (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; consistent with past practice or (Dii) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31such failures to be legal, 2020;
(xvi) any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company); and
(xvii) any Contract, the termination of which would have a Company Material Adverse Effect. The Company has delivered or Made Available (including by filing with the SEC) to Parent an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as of the date of this Agreement.
(b) Each Company Contract that constitutes a Company Material Contract is valid and binding or to be in full force and effect as would not reasonably be expected to have, individually or in the aggregate, an ITC MAE, in each case subject to (except for Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period), and is enforceable in accordance with its terms, subject to: (iA) laws Laws of general application relating to bankruptcy, insolvency and the relief of debtors; insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (iiB) rules of law Law governing equitable remedies of specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”)remedies.
(c) Except as set forth ITC and each of its Subsidiaries which is a party to any ITC Material Contract is in Part 2.10(c) compliance with all terms and requirements of each ITC Material Contract, and no event has occurred that, with notice or the Company Disclosure Schedule: (i) none passage of the Tetraphase Companies has violated or breached in any material respecttime, or committed both, would constitute a breach or default by ITC or any default in of its Subsidiaries under any material respect under, any Company such ITC Material Contract; (ii) , and, to the knowledge Knowledge of the CompanyITC, no other Person party to any ITC Material Contract is in breach or default (nor has violated any event occurred which, with notice or breached in any material respectthe passage of time, or committed both, would constitute such a breach or default) under any default in any material respect under, any Company ITC Material Contract; (iii) to the knowledge , except in each case where such violation, breach, default or event of the Company, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) default would not reasonably be expected to: (A) result to have, individually or in a violation or breach in any material respect of any Company Material Contract; (B) give any Person the right to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancelaggregate, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received any written notice (or, to the knowledge of the Company, any other communication) regarding any actual or possible material violation or breach of, or material default under, any Company Material Contractan ITC MAE.
Appears in 1 contract
Sources: Separation Agreement
Contracts. (a) Part 2.10(a) The Disclosure Schedule lists all of the following contracts, agreements or other enforceable obligations (written or verbal) to which the Company Disclosure Schedule identifies, is a party or by which the Company is bound as of the date of this Agreement, each Agreement (the "Company Contract that constitutes a Company Material Contract and which remains in effect as of the date hereof and under which a Tetraphase Company has remaining material rights or obligations. For purposes of this Agreement, each of the following Company Contracts shall be deemed to constitute a “Company Material Contract”:Contracts"):
(i) any Contract in effect and which has been filed agreement (or group of related agreements with the same party) for the lease of personal property from or to third parties providing for lease payments the remaining unpaid balance of which is required to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) in excess of Regulation S-K under the Exchange Act, or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange Act[*];
(ii) any Contract: agreement (Aor group of related agreements with the same party) constituting a for the purchase of products or services by the Company Employee Agreement under which annual salary or other stated annual cash compensation exceeds $200,000; (B) pursuant to which any the undelivered balance of the Tetraphase Companies such products and services is or may become obligated to make any severance, termination or similar payment to any Company Associate or any spouse, heir or Representative in excess of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) above[*];
(iii) any Contract agreement (or group of related agreements with any labor union or any collective bargaining agreement or similar Contract for the benefit same party) which involves a payment to be made to the Company in excess of any Company Associate(s)[*];
(iv) each material Contract pursuant to which any Intellectual Property Rights agreement for the acquisition by the Company of any operating business, whether by merger, stock purchase or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software)asset purchase;
(v) each material Contract pursuant to which any Intellectual Property Rights agreement establishing a partnership or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Companyjoint venture;
(vi) any agreement (or group of related agreements with the same party) under which it has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness or under which it has imposed a Security Interest on any of its material Contract with any distributor and any material contract with any other reseller assets, tangible or sales representativeintangible, in each case that provides exclusivity rights relating to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in the ordinary course of businessCompany;
(vii) any material Contract (other than any purchase order entered into agreement that prohibits the Company from freely engaging in business anywhere in the ordinary course of business) with sole source or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of businessworld;
(viii) any Contract that provides for: (A) reimbursement of any Company Associate foragreement with the Company's executive officers or directors pertaining to compensation, indemnification or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associateotherwise;
(ix) any Contract (A) that restricts the ability agreement with any of the Tetraphase Companies to compete Company's non-officer employees providing annual base annual compensation at a rate in any business excess of [*];
(x) severance, "stay pay" or termination agreement with any Person in officer or other employee of the Company; and
(xi) any geographical area; (B) in other agreement, contract or other obligation that is or which the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect be material to the conduct operations or financial condition of the business of the Tetraphase CompaniesCompany; provided, taken as a wholehowever, as currently conducted;
that no agreement referred to in clauses (xi) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into in the ordinary course of business or that do not deviate in any material respect from the standard forms of Contracts previously Made Available by the Company to Parent;
through (xi) above need be disclosed unless the Company currently has, or may in the future have, any rights or obligations thereunder. CERTAIN CONFIDENTIAL INFORMATION IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
(b) The Seller has made available to the Buyer a complete and accurate copy of each Company Contract. Each Company Contract providing is a valid and binding obligation of the Company and, to the knowledge of the Seller, of each other party thereto, except for any currency hedging;
(xii) any Contract requiring such failure to be valid and binding that any of the Tetraphase Companies give any written notice or provide any information would not reasonably be expected to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration result in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2019; (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company); and
(xvii) any Contract, the termination of which would have a Company Material Adverse Effect. The Company has delivered or Made Available (including by filing with the SEC) to Parent an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as of the date of this Agreement.
(b) Each Company Contract that constitutes a Company Material Contract is valid and in full force and effect (except for Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period), and is enforceable in accordance with its terms, subject to: (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”).
(c) Except as set forth in Part 2.10(c) of Neither the Company Disclosure Schedule: (i) none of the Tetraphase Companies has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (ii) to the knowledge of the Company, no other Person has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (iii) to the knowledge of the Company, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) would reasonably be expected to: (A) result in a violation or breach in any material respect of any Company Material Contract; (B) give any Person the right to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received any written notice (ornor, to the knowledge of the CompanySeller, any other communication) regarding any actual or possible material violation or breach of, or material default under, party to any Company Material Contract is in breach or default and, to the knowledge of the Seller, no event has occurred which, with notice or lapse of time or both, would constitute a breach or default under any Company Contract, except for any such breach or default that would not reasonably be expected to be material to the operations or financial condition of the Company.
Appears in 1 contract
Contracts. Except as disclosed on Schedule 3.15.1, the Company is not bound by or a party to:
(a) Part 2.10(aany Contractual Obligation with any Payor;
(b) of the Company Disclosure Schedule identifies, as of the date of any lease required to be capitalized in accordance with GAAP;
(c) except pursuant to this Agreement, each Company Contract that constitutes a Company Material Contract and which remains in effect as any Contractual Obligation relating to the acquisition or disposition of the date hereof and under which a Tetraphase Company has remaining material rights or obligations. For purposes of this Agreementany business (whether by merger, each of the following Company Contracts shall be deemed to constitute a “Company Material Contract”:
(i) any Contract in effect and which has been filed (or is required to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Act, or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange Act;
(ii) any Contract: (A) constituting a Company Employee Agreement under which annual salary consolidation or other stated annual cash compensation exceeds $200,000; (B) pursuant to which any business combination, sale of the Tetraphase Companies is securities, sale of assets or may become obligated to make any severance, termination or similar payment to any Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) above;
(iii) any Contract with any labor union or any collective bargaining agreement or similar Contract for the benefit of any Company Associate(sotherwise);
(ivd) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software)joint venture agreement;
(v) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Company;
(vie) any material Contract with any distributor and any material contract with any other reseller or sales representative, in each case Contractual Obligation that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viii) any material Contract (other than any purchase order entered into in the ordinary course of business) with sole source or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viii) any Contract that provides for: (A) reimbursement of any Company Associate forgrants, or advancement agrees to any Company Associate ofgrant, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate;
(ix) any Contract (A) that restricts the ability of the Tetraphase Companies to compete in any business or with any Person in any geographical area; (B) in which the Company or any Tetraphase Company has granted development rights, relation a right to “most favored nation” pricing provisions or marketing other terms or distribution rights relating to (ii) imposes minimum purchase or other similar volume requirements on the Company;
(f) any product Contractual Obligation (or product candidate; group of related Contractual Obligations) (Ci) in under which the Company has created, incurred, assumed or guaranteed any Tetraphase Company Debt, (ii) under which an Encumbrance has agreed to purchase a minimum quantity been placed on any Asset or (iii) under which any other Person has guaranteed any Debt of goods the Company;
(g) any Contractual Obligation relating to any product non-competition or product candidate; non-solicitation restrictions or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect that otherwise restricts the conduct of the business Business by the Company or limits the freedom of the Tetraphase CompaniesCompany to provide any service (including in connection with any exclusivity or territorial restrictions), taken as a wholeto engage in any line of business or to compete with any Person in any geographic area or to hire, as currently conductedsolicit or retain any Person (whether the Company is subject to or the beneficiary of such obligation);
(xh) Any Contractual Obligation under which the Company is, or may become, obligated to pay Compensation which would become payable by reason of this Agreement or the Contemplated Transactions;
(i) any Contract incorporating Contractual Obligation under which the Company is, or providing for may become, obligated to pay Compensation to the Seller or any material guarantyformer equityholder of the Company, warrantyif any, sharing or, other than salary in the Ordinary Course of liabilities Business, any employee;
(j) any Contractual Obligation with a labor union or indemnity other employee representative body;
(k) any Contractual Obligation under which the Company has advanced or loaned an amount to any Person;
(l) any Contractual Obligation with any Governmental Authority (including any indemnity with respect to Intellectual Property contract or Intellectual Property Rights) arrangement under which the Company has a “small business” or similar obligation, other than Contracts entered into in the ordinary course of business or that do not deviate in any material respect from the standard forms of Contracts previously Made Available by the Company to Parentdesignation);
(xim) any Contract providing for any currency hedging;
(xii) any Contract requiring that any of Contractual Obligation pursuant to which the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for Company stores inventory at locations other than the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2019; (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company); and
(xviin) any Contract, the termination of which would have a Company Material Adverse Effect. The Company has delivered or Made Available (including by filing Contractual Obligation with the SEC) to Parent an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as of the date of this Agreement.
(b) Each Company Contract that constitutes a Company Material Contract is valid and in full force and effect (except for Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period), and is enforceable in accordance with its terms, subject to: (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”).
(c) Except as any supplier set forth in Part 2.10(c) of the Company Disclosure Schedule: (i) none of the Tetraphase Companies has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (ii) to the knowledge of the Company, no other Person has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (iii) to the knowledge of the Company, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) would reasonably be expected to: (A) result in a violation or breach in any material respect of any Company Material Contract; (B) give any Person the right to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received any written notice (or, to the knowledge of the Company, any other communication) regarding any actual or possible material violation or breach of, or material default under, any Company Material Contracton Schedule 3.16.
Appears in 1 contract
Contracts. (a) Part 2.10(aExcept as set forth in Section 4.11(a) of the Company Disclosure Schedule identifiesSchedule, as of the date of this Agreement, each Company Contract that constitutes Seller is not a Company Material Contract and which remains in effect as of the date hereof and under which a Tetraphase Company has remaining material rights party to or obligations. For purposes of this Agreement, each otherwise bound by any of the following Company Contracts shall be deemed to constitute a “Company Material Contract”Contracts:
(i) any Contract in effect and relating to the acquisition or disposition of any business (whether by merger, sale of stock, sale of assets or otherwise) for which a closing has been filed (or is required to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Act, or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange Actnot occurred;
(ii) any Contract: (A) constituting a Company Employee Agreement Contract under which annual salary Seller is, or may become, obligated to pay any amount in respect of an “earn-out” or any other form of deferred purchase price payment in connection with any acquisition of assets or securities, merger, consolidation or other stated annual cash compensation exceeds $200,000; (B) pursuant to which any of the Tetraphase Companies is or may become obligated to make any severance, termination or similar payment to any Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) abovebusiness combination;
(iii) any Contract with for or relating to Indebtedness (including all loan agreements, bonds, debentures, notes, mortgages, indentures or guarantees) or creating or granting a Lien (other than a Permitted Lien) on any labor union or any collective bargaining agreement or similar Contract for of the benefit of any Company Associate(s);Purchased Assets; or
(iv) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software);
(v) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Company;
(vi) any material Contract with any distributor and any material contract with any other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(vii) any material Contract (other than any purchase order entered into in the ordinary course of business) with sole source or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viii) any Contract that provides for: purports to restrict or otherwise limit the ability of Seller (or would limit the ability of Buyer after the Closing) to (A) reimbursement of any Company Associate forcompete with, or advancement to any Company Associate solicit the services or employment of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or Person, (B) indemnification of any Company Associate;
(ix) any Contract (A) that restricts the ability of the Tetraphase Companies to compete engage in any line of business or with any Person (C) operate in any geographical area; (B) in which the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;
(x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into in the ordinary course of business or that do not deviate in any material respect from the standard forms of Contracts previously Made Available by the Company to Parent;
(xi) any Contract providing for any currency hedging;
(xii) any Contract requiring that any of the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2019; (B) requires by its terms the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company); and
(xvii) any Contract, the termination of which would have a Company Material Adverse Effect. The Company has delivered or Made Available (including by filing with the SEC) to Parent an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as of the date of this Agreement.
(b) Each Company Contract that constitutes a Company Material Contract is valid and in full force and effect (except for Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period), and is enforceable in accordance with its terms, subject to: (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”).
(c) Except as set forth in Part 2.10(cSection 4.11(b) of the Company Disclosure Schedule: , each Assigned Contract (i) none is a legal, valid and binding obligation of Seller and, to the Tetraphase Companies has violated or breached in any material respectKnowledge of Seller, or committed any default in any material respect underthe other parties thereto, any Company Material Contract; (ii) to the knowledge of the Company, no other Person has violated or breached is in any material respect, or committed any default full force and effect in any material respect under, any Company Material Contract; accordance with its terms and (iii) may be assigned to Buyer and will continue in full force and effect upon consummation of the Contemplated Transactions without penalty or other adverse consequence subject to obtaining the consents and approvals set forth in Section 4.5 of the Disclosure Schedule. Neither Seller nor, to the knowledge Knowledge of the CompanySeller, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) would reasonably be expected to: (A) result in a violation or breach in any material respect of any Company Material Contract; (B) give any Person the right to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies other party thereto has received any written notice (or, to the knowledge of the Company, any other communication) regarding any actual or possible material violation or breach of, or material default underis in, any Company Material material breach of or default under any Assigned Contract. Seller heretofore has made available to Buyer a true and complete copy of each Assigned Contract, including all amendments thereto.
(c) Other than this Agreement, there are no existing agreements, options, commitments or rights with, of or to any Person to acquire any of the Purchased Assets, or any portion thereof or interest therein.
Appears in 1 contract
Contracts. (a) Part 2.10(aExcept for this Agreement and the Other Transaction Documents or set forth on Section 5.10(a) of the Company Parent Disclosure Schedule identifiesLetter, no member of the Energy Supply Group, any of the Energy Supply Assets or the Energy Supply Business is, as of the date of this Agreementhereof, each Company Contract that constitutes or will be, as a Company Material Contract and which remains in effect as result of the date hereof and under which Spin Transactions, a Tetraphase Company has remaining material rights party to or obligations. For purposes of this Agreement, each bound by (other than Contracts solely among members of the following Company Contracts shall be deemed to constitute a “Company Material Contract”:Energy Supply Group):
(i) any Contract “material contract” (as such term is defined in effect and which has been filed (or is required to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Act), or that as such term would be required applied to be disclosed under Item 404 of Regulation S-K under the Exchange ActEnergy Supply Business as if a separate entity;
(ii) any Contract: (A) constituting Contract containing a Company Employee Agreement under material covenant not to compete, for “most favored nation” treatment, or exclusivity arrangement in favor of a third party or otherwise purports to limit in any material respect either the Energy Supply Business or the type of business in which annual salary any member of the Energy Supply Group may engage or other stated annual cash compensation exceeds $200,000; (B) pursuant to the manner or geographic area in which any of the Tetraphase Companies is or them may become obligated to make any severance, termination or similar payment to any Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business); or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest so engage in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) abovebusiness;
(iii) any Contract with any labor union containing an exclusive license to Intellectual Property (whether or any collective bargaining agreement not such license is limited to a geographic area or similar Contract for the benefit of any Company Associate(s)field) that is an Energy Supply Asset;
(iv) each material any Contract that limits or otherwise restricts the ability of any member of the Energy Supply Group to pay dividends or make distributions to its members or shareholders. other than pursuant to which any Intellectual Property Rights or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software)the Financings;
(v) each material Contract any Contracts under which any member of the Energy Supply Group is or may be liable (after giving effect to the Spin Transactions) for Indebtedness for money borrowed (whether evidenced by notes, debentures, bonds or other similar instruments or otherwise) or evidencing obligations as obligor, guarantor or surety of any other Person (other than another member of the Energy Supply Group) or pursuant to which a Security Interest is imposed upon any Intellectual Property Rights Energy Supply Asset in respect of Indebtedness for borrowed money (or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Companya guarantee thereof), other than, in each case, pursuant to the Energy Supply Financing;
(vi) any Contract relating to the formation, creation, governance or control of any partnership, joint venture or similar arrangement that is material Contract with any distributor and any material contract with any other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in the ordinary course of businessEnergy Supply Business as currently conducted;
(vii) any material Contract (other than any purchase order entered into in for the ordinary course supply of business) with sole source water or single source suppliers to any Tetraphase Company of products or utility services, other than confidentiality in each case, that relates to the use, ownership, operation or nondisclosure agreements entered into in the ordinary course maintenance of businessany Energy Supply Facility;
(viii) any interconnection Contract that provides for: (A) reimbursement of any Company Associate for, or advancement relates to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company AssociateEnergy Supply Facility;
(ix) any Contract (A) that restricts the ability of the Tetraphase Companies to compete in any business or with any Person in any geographical area; (B) in which the Company energy management agreement or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions other Contract providing for the management or marketing or distribution rights relating to any product or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor operation of any Energy Supply Facility (and/or the output thereof) by a third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;
(x) any Contract incorporating or providing for any material guarantyEnergy Marketing and Trading Contract, warranty, sharing of liabilities or indemnity which (including any indemnity with respect to Intellectual Property or Intellectual Property Rightsits remaining term and/or obligations) or similar obligation, other than Contracts if entered into in as of the ordinary course date of business or that do not deviate in any material respect from the standard forms of Contracts previously Made Available by the Company to Parentthis Agreement would be considered a Specified Energy Marketing and Trading Contract;
(xi) any Contract providing for (other than an Energy Marketing and Trading Contract) with required aggregate payments to or from any currency hedgingmember of the Energy Supply Group in excess of $20 million;
(xii) any material Contract requiring that contains a “change of control” provision to which any member of the Tetraphase Companies give any written notice Energy Supply Group or provide any information to any Person prior to responding to the Energy Supply Business is a party or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transactionis subject;
(xiii) any Contract providing for that is a settlement, conciliation or similar agreement with any Governmental Authority or other Person in respect of any matter that is material to the lease Energy Supply Business, the Energy Supply Assets or sublease the Energy Supply Liabilities or pursuant to which any member of Tetraphase Leased Real Property;the Energy Supply Business will be required after the date of this Agreement to pay consideration in excess of $5 million; and
(xiv) any Contract that is a Government Contractset forth or required to be set forth in Section 5.10(d) of the Parent Disclosure Letter;
(xv) any ContractContract that relates to the acquisition or disposition of any business or generation facility, not covered whether by another clause merger, sale of this Section 2.10(a)stock, that: sale of assets or otherwise (A) involved the payment or delivery of cash or other for aggregate consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31, 2019; 20 million or (B) requires by its terms with respect to which any member of the payment Energy Supply Group or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the fiscal year ending December 31Energy Supply Business has any material outstanding obligation, 2020including any indemnification obligations; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;and
(xvi) any material Contract lease set forth or required to be set forth in Section 5.19(a) of the Parent Disclosure Letter. Except for Contracts solely among members of the Energy Supply Group, all Contracts of the type described in this Section 5.10(a) and any other such Contracts that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company); andmember of the Energy Supply Group after the date hereof and on or prior to the Effective Time in accordance with Section 7.01, together with the Energy Supply Leases are referred to herein as “Energy Supply Material Contracts.” Complete and correct copies (including all material amendments, modifications, extensions, renewals or waivers with respect thereto) of all Energy Supply Material Contracts existing as of the date hereof have been provided, or made available, to RJS.
(xviib) any Contract, the termination of which would have a Company Material Adverse Effect. The Company has delivered or Made Available (including by filing with the SEC) to Parent an accurate and complete copy of each Company Contract that constitutes a Company Each Energy Supply Material Contract is the legal, valid and binding obligation of, and enforceable against, Parent or the Subsidiary of Parent party thereto as of the date of this Agreement.
Agreement (b) Each Company Contract and, as of the Distribution Date, such member of the Energy Supply Group that constitutes is or will become a Company Material Contract party thereto in connection with or as a result of the Spin Transactions), as applicable, and, to the Knowledge of Parent, each other party thereto, and is valid and in full force and effect (except for Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period), and is enforceable in accordance with its terms, subject to: except (i) laws for terminations or expirations at the end of the stated term, (ii) such failures to be legal, valid and binding or to be in full force and effect as has not had and would not reasonably be expected to have, individually or in the aggregate, an Energy Supply Business MAE and (iii) as limited by Laws of general application relating to bankruptcy, insolvency insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and the relief application of debtors; and (ii) rules of law Law governing equitable remedies of specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”)remedies.
(c) Except as set forth Except, in Part 2.10(c) each case, where such violation, breach, default, event of default, right of termination, cancellation, guaranteed payment, acceleration of obligation or loss of benefit, has not had and would not reasonably be expected to have, individually or in the aggregate, an Energy Supply Business MAE, Parent, each Subsidiary of Parent, and each member of the Company Disclosure Schedule: (i) none Energy Supply Group which is a party to each Energy Supply Material Contract is in compliance with all terms and requirements of such Energy Supply Material Contract, and no event has occurred that, with notice or the passage of time, or both, would constitute a breach or default by Parent, any Subsidiary of Parent or any member of the Tetraphase Companies has violated or breached in any material respectEnergy Supply Group, as applicable, or committed result in a right of termination, cancellation, guaranteed payment or acceleration of any default in obligation or the loss of a benefit, under any material respect under, any Company such Energy Supply Material Contract; (ii) to . To the knowledge Knowledge of the CompanyParent, no other Person party to any Energy Supply Material Contract is in breach or default (nor has violated any event occurred which, with notice or breached in any material respectthe passage of time, or committed both, would constitute such a breach or default) under any default in any material respect under, any Company Energy Supply Material Contract; (iii) to the knowledge , in each case where such violation, breach, default or event of the Company, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) default would reasonably be expected to: to have, individually or in the aggregate, an Energy Supply Business MAE.
(Ad) result in a violation or breach in any material respect of any Company Material Contract; (BSection 5.10(d) give any Person the right to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received Parent Disclosure Letter lists each Contract between or among any written notice (or, to the knowledge of the Companymembers of the Energy Supply Group, on the one hand, and any member of the Parent Group, on the other communication) regarding any actual or possible material violation or breach ofhand, or material default under, any Company Material Contractthat will remain in place following the Closing.
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Contracts. (a) Part 2.10(a) of the Company Disclosure Schedule identifies, as of the date of this Agreement, each Company Contract that constitutes a Company Material Contract and which remains in effect as of the date hereof and under which a Tetraphase Company has remaining material rights or obligations. For purposes of this Agreement, each of the following Company Contracts shall be deemed to constitute a “Company "Parent Material Contract”", which Parent Material Contracts and all amendments thereto, in each case as of the date of this Agreement are listed on Schedule 3.8 of the Parent Disclosure Letter and copies of which have been made been made available to the Company; provided, however, that no Parent Employee Plans shall be or shall be deemed to be a Parent Material Contract:
(i) any AngioDynamics Corporation Contract in effect and which has been filed (or that is required by the rules and regulations of the SEC to be filed) by the Company filed as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Act, or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange ActParent SEC Documents;
(ii) any Contract: AngioDynamics Corporation Contract relating to (A) constituting a Company Employee Agreement under which annual salary the employment of any employee or other stated annual cash compensation exceeds $200,000; (B) the services of any independent contractor or consultant and pursuant to which any of the Tetraphase Companies AngioDynamics Corporations is or may become obligated to make any severanceseverance or termination payment in excess of $50,000 or (B) any bonus, termination relocation or similar other payment in excess of a material amount to any Company Associate current or any spouseformer employee, heir independent contractor, consultant, officer or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment director (other than payments constituting bonuses or commissions paid payments, in the ordinary course case of business); (A) and (B) above, in respect of salary or (D) pursuant to standard severance policies, existing bonus plans or standard relocation policies of Parent which any are listed on Schedule 3.8(a) of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, Parent Disclosure Letter; but not including any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) aboveParent Employee Plan);
(iii) any AngioDynamics Corporation Contract with any labor union relating to the acquisition, transfer, development, sharing or any collective bargaining agreement or similar Contract for the benefit license of any Company Associate(smaterial Proprietary Asset, including the Contracts set forth on Schedule 3.7(a)(iii) of the Parent Disclosure Letter (except for any AngioDynamics Corporation Contract pursuant to which (A) any Proprietary Asset is licensed to the AngioDynamics Corporations under any third party software license generally available for sale to the public), "Material AngioDynamics Corporation IP Contract" or (B) any material Proprietary Asset is licensed by any of the AngioDynamics Corporations to any customer in connection with the sale of any product in the ordinary course of business consistent with prior practice);
(iv) each material any AngioDynamics Corporation Contract pursuant to which with any Intellectual Property Rights officer, director or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software)affiliate of Parent;
(v) each any AngioDynamics Corporation Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities, under which an AngioDynamics Corporation has continuing material Contract pursuant to which any Intellectual Property Rights or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Companyobligations;
(vi) any material AngioDynamics Corporation Contract with any distributor and any material contract with any other reseller that involves the payment or sales representative, expenditure by an AngioDynamics Corporation in each case excess of $50,000 that provides exclusivity rights to may not be terminated by such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements entered into in AngioDynamics Corporation (without penalty) within 60 days after the ordinary course delivery of businessa termination notice by the applicable AngioDynamics Corporation;
(vii) any material AngioDynamics Corporation Contract (other than any purchase order entered into in the ordinary course of business) with sole source contemplating or single source suppliers to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of business;
(viii) any Contract that provides for: (A) reimbursement of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate;
(ix) any Contract (A) that restricts the ability of the Tetraphase Companies to compete in any business or with any Person in any geographical area; (B) in which the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;
(x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into in the ordinary course of business or that do not deviate in any material respect from the standard forms of Contracts previously Made Available by the Company to Parent;
(xi) any Contract providing for any currency hedging;
(xii) any Contract requiring that any of the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved involving the payment or delivery of cash or other consideration in to an amount or having a value AngioDynamics Corporation in excess of $200,000 in 50,000;
(viii) any AngioDynamics Corporation Contract imposing any restriction on the fiscal year ending December 31right or ability of any AngioDynamics Corporation to (A) compete with any other Person, 2019; (B) requires by its terms the payment or delivery of cash acquire any material product or other consideration material asset or any services from any other Person, sell any material product or other material asset to or perform any services for any other Person or transact business or deal in an amount any other manner with any other Person, or having a value in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; develop or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) distribute any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company)technology; and
(xviiix) any other AngioDynamics Corporation Contract, the termination if a breach of which would such AngioDynamics Corporation Contract could reasonably be expected to have a Company Material Adverse Effect. The Company has delivered or Made Available (including by filing with Effect on the SEC) to Parent an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as of the date of this AgreementAngioDynamics Corporations.
(b) Each Company Contract that constitutes a Company Parent Material Contract is valid and in full force and effect (except for Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period)effect, and is enforceable in accordance with its terms, terms subject to: to (iA) laws Legal Requirements of general application relating to bankruptcy, insolvency and the relief of debtors; , and (iiB) rules of law governing specific performance, injunctive relief and other equitable remedies (remedies, except to the “Enforceability Exceptions”)extent they have expired in accordance with their terms and except where the failure to be in full force and effect, individually or in the aggregate, would not reasonably be expected to be material to the AngioDynamics Corporations. Parent has delivered to or made available to the Company true and complete copies of each Parent Material Contract, except in the case of a Parent Material Contract which is derived from a standard form agreement of the AngioDynamics Corporations, Parent has delivered to or made available to the Company a form or forms of such agreement. In each case where a Parent Material Contract is derived from a standard form agreement, all of the terms, conditions and provisions of such Parent Material Contract are substantially similar with respect to material terms to the form agreement from which such agreement derived.
(c) Except as set forth in Part 2.10(c) None of the Company Disclosure Schedule: (i) none of the Tetraphase Companies AngioDynamics Corporations has materially violated or breached in any material respectbreached, or committed any material default in any material respect under, any Company Parent Material Contract; (ii) to the knowledge of the Company. To Parent's knowledge, no other Person has materially violated or breached in any material respectbreached, or committed any material default in any material respect under, any Company Parent Material Contract; .
(iiid) to the knowledge of the CompanyTo Parent's knowledge, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) would could reasonably be expected to: to (Ai) result in a material violation or breach in any material respect of any Company provision of any Parent Material ContractContract by any of the AngioDynamics Corporations; (Bii) give any Person the right to declare a material default in or exercise any material respect remedy under any Company Parent Material Contract; (Ciii) give any Person the right to accelerate in any material respect the maturity or performance of any Company Parent Material Contract; or (Div) give any Person the right to cancelcancel or terminate, terminate or modify in any material respect respect, any Company Parent Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received any written notice (or, to the knowledge of the Company, any other communication) regarding any actual or possible material violation or breach of, or material default under, any Company Material Contract.
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Sources: Merger Agreement (Angiodynamics Inc)
Contracts. The Celtron Disclosure Schedule sets forth a list of the following Celtron Contracts:
(a) Part 2.10(a) of the Company Disclosure Schedule identifies, as of the date of this Agreement, each Company A Contract that constitutes a Company Material Contract and which remains in effect as of the date hereof and under which a Tetraphase Company has remaining material rights or obligations. For purposes of this Agreement, each of the following Company Contracts shall be deemed to constitute a “Company Material Contract”:
(i) any Contract in effect cannot be canceled upon 30 days’ notice or less and which has been filed (involves aggregate future payments by or is required to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) Celtron Group of Regulation S-K under the Exchange Act, or that would be required to be disclosed under Item 404 of Regulation S-K under the Exchange Act;
more than $25,000; (ii) any Contract: (A) constituting a Company Employee Agreement under which annual salary or other stated annual cash compensation exceeds $200,000involves material non-monetary obligations to be performed later than one year from the date hereof; (Biii) pursuant to which any otherwise materially affects Business Condition of the Tetraphase Companies is or may become obligated to make any severance, termination or similar payment to any Company Associate or any spouse, heir or Representative of any Company Associate; (C) pursuant to which any of the Tetraphase Companies is or may become obligated to make any bonus or similar payment (other than payments constituting bonuses or commissions paid in the ordinary course of business)Celtron Group; or (D) pursuant to which any of the Tetraphase Companies is or may become obligated to grant or accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Tetraphase Companies other than pursuant to agreements on forms described in Section 2.10(a)(i) above;
(iii) any Contract with any labor union or any collective bargaining agreement or similar Contract for the benefit of any Company Associate(s);
(iv) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property that has been incorporated into any Company Product and is licensed to any Tetraphase Company (other than non-exclusive licenses to unmodified commercially available third party software);
(v) each material Contract pursuant to which any Intellectual Property Rights or Intellectual Property incorporated into any Company Product are licensed by any Tetraphase Company;
(vi) any material Contract with any distributor and any material contract with any other reseller or sales representative, in each case that provides exclusivity rights to such distributor, reseller or sales representative, other than confidentiality or nondisclosure agreements was not entered into in the ordinary course of business;
(viib) any material A Contract (other than any purchase order entered into in pursuant to which the ordinary course of business) with sole source Celtron Group has incurred Indebtedness or single source suppliers has made or committed to any Tetraphase Company of products or services, other than confidentiality or nondisclosure agreements entered into in the ordinary course of businessmake a loan;
(viiic) any A Contract that provides for: (A) reimbursement for the Transfer of any Company Associate forproperties, assets or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate;
(ix) any Contract (A) that restricts the ability rights of the Tetraphase Companies to compete in any business or with any Person in any geographical area; (B) in which the Company or any Tetraphase Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidate; (C) in which the Company or any Tetraphase Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate; or (D) which provides Celtron Group for “exclusivity” or any similar requirement in favor of any third party, in each case which restriction would or would reasonably be expected to materially and adversely affect the conduct of the business of the Tetraphase Companies, taken as a whole, as currently conducted;
(x) any Contract incorporating or providing for any material guaranty, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts entered into in the ordinary course of business or that do not deviate in any material respect from the standard forms of Contracts previously Made Available by the Company to Parent;
(xi) any Contract providing for any currency hedging;
(xii) any Contract requiring that any of the Tetraphase Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction;
(xiii) any Contract providing for the lease or sublease of Tetraphase Leased Real Property;
(xiv) any Contract that is a Government Contract;
(xv) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in 50,000 or for the fiscal year ending December 31grant of any preferential right to purchase any of such assets, 2019properties or rights, or which requires the consent of any third party to the Transfer of such assets, properties or rights;
(d) A Contract with any Affiliate of the Celtron Group;
(e) A Contract (i) under which the benefits cannot be retained upon the consummation of the transactions contemplated by this Agreement without the written consent or approval of other parties, (ii) under which there will be a default as a result of the consummation of the transactions contemplated by this Agreement unless such other parties provide written consent or approval or (iii) that would require the making of any payment, other than payments as contemplated by this Agreement, to any employee of the Celtron Group or to any other Person as a result of the consummation of the transactions contemplated herein;
(f) A Contract involving the lease of real or personal property;
(g) A Contract with a Governmental Authority;
(h) A Contract that obligates the Celtron Group to indemnify any Person;
(i) A Contract pursuant to which any member of the Celtron Group has licensed any intellectual property or that provides the Celtron Group the right or license to use or exploit the intellectual property of any other Person other than shrink-wrap licenses; and/or
(Bj) requires by its terms A Contract requiring the payment or delivery of cash or other consideration in an amount or having a value Celtron Group to make capital expenditures in excess of $200,000 in the fiscal year ending December 31, 2020; (C) involved the performance of services having a value in excess of $200,000 in the fiscal year ended December 31, 2019; or (D) requires by its terms the performance of services having a value in excess of $200,000 in the fiscal year ending December 31, 2020;
(xvi) any material Contract that has a term of more than one year and which may not be terminated by a Tetraphase Company (without penalty in excess of $75,000) within 120 days after the delivery of a termination notice by such Tetraphase Company (other than confidentiality or nondisclosure agreements entered into by any Tetraphase Company); and
(xvii) any Contract, the termination of which would have a Company Material Adverse Effect. The Company has delivered or Made Available (including by filing with the SEC) to Parent an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as of the date of this Agreement50,000.
(b) Each Company Contract that constitutes a Company Material Contract is valid and in full force and effect (except for Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period), and is enforceable in accordance with its terms, subject to: (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”).
(c) Except as set forth in Part 2.10(c) of the Company Disclosure Schedule: (i) none of the Tetraphase Companies has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (ii) to the knowledge of the Company, no other Person has violated or breached in any material respect, or committed any default in any material respect under, any Company Material Contract; (iii) to the knowledge of the Company, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) would reasonably be expected to: (A) result in a violation or breach in any material respect of any Company Material Contract; (B) give any Person the right to declare a default in any material respect under any Company Material Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2018 and the date of this Agreement, none of the Tetraphase Companies has received any written notice (or, to the knowledge of the Company, any other communication) regarding any actual or possible material violation or breach of, or material default under, any Company Material Contract.
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