Contracts. (a) Except as set forth on Section 3.11 of the Disclosure Schedule (which (i) includes any amendment, supplement or modification to any Contract listed therein and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into pursuant to the terms of other Contracts listed therein), as of the date hereof, neither the Company nor any of its Subsidiaries is a party to or bound by any of the following Contracts that are Related to the Business: (i) any Contract with any staffing company, temporary employee agency, professional employer organization or other similar company or agency; (ii) any collective bargaining agreement or similar Contract with an employee representative or labor group representing any Business Employees; (iii) any Contract relating to Indebtedness or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any of the Transferred Assets or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangements; (iv) any (A) Contract (or group of related Contracts) relating to or regarding Intellectual Property or (B) IT Asset Contract (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee of less than $50,000 in the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregate); (v) any Contract which prohibits the Company or any of its Subsidiaries from competing or otherwise freely engaging in the Business as currently conducted anywhere in the world in any material respect or that otherwise restricts any activities of the Company or any of its Subsidiaries with respect to the Business as currently conducted in any material respect; (vi) any Contract for the sale of Products or services, in each case, containing “most-favored nation” pricing terms or any exclusive dealing arrangement or any “requirements” Contract; (vii) any Shared Contract; (viii) any Contract with any Material Customer or Material Supplier (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditions), and any other Contract which involves the payment by or to, performance of services by or for, or the delivery of goods by or to, or capital expenditures by, the Company in excess of $750,000 in the aggregate over the shorter of: (A) the term of such Contract or (B) the 2019 calendar year; (A) any Contract relating to ownership of or investments in any business or enterprise and (B) partnership, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar Contract; and (x) any Contract involving a Governmental Entity. (b) Each Assumed Contract and each Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule is a legal, valid and binding obligation of the Company, and, to the Knowledge of the Company, each other party to such Contract, and is enforceable against the Company, and, to the Knowledge of the Company, each such other party in accordance with its terms subject, in each case, to the effect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and neither the Company nor, to the Knowledge of the Company, any other party to such Contract is in material default or material breach of such Contract, and, to the Knowledge of the Company, there does not exist any event, condition or omission that would constitute such a material default or material breach (whether by lapse of time or notice or both) under any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1, 2018, the Company has not received any written notice of termination or nonrenewal with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge of the Company, no other party to any such Contract intends to provide any such notice.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Harsco Corp), Asset Purchase Agreement (Chart Industries Inc)
Contracts. Part 2.8 of the Company Disclosure Schedule contains a list as of the date of this Agreement of each of the following contracts to which the Company or a Company Subsidiary is a party (each such contract (x) required to be listed in Part 2.8 of the Company Disclosure Schedule, (y) that is a Company IP License, or (z) that is filed as a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) as an exhibit to the Most Recent Company 10-K under the Exchange Act prior to the date of this Agreement (other than any Company Plan), being referred to as a “Material Contract”):
(a) Except as set forth on Section 3.11 each contract that restricts in any material respect the ability of the Disclosure Schedule Company, any Company Subsidiary or any Affiliate of any of them to compete in any geographic area or line of business, or solicit any client or customer (or that would so restrict Parent, any Parent Subsidiary or any Affiliate following the Closing);
(b) each joint venture agreement or similar agreement with a third party;
(c) each contract (other than any Organizational Document) between the Company or any Company Subsidiary, on the one hand, and any director, officer or Affiliate (other than a wholly owned Company Subsidiary) 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), on the other hand, including (but not limited to) any contract pursuant to which the Company or any Company Subsidiary has an obligation to indemnify such director, officer, Affiliate or “associate” or “immediate family” member, but excluding any Company Plan;
(d) each material acquisition or divestiture contract or material licensing agreement that contains any material indemnification obligations or any “earnout” or other material contingent payment obligations that are outstanding obligations of the Company or any Company Subsidiary as of the date of this Agreement;
(e) each loan or credit agreement, indenture, mortgage, note or other contract evidencing indebtedness for money borrowed by the Company or any Company Subsidiary from a third party lender, and each contract pursuant to which any such indebtedness for borrowed money is guaranteed by the Company or any Company Subsidiary, in each case in excess of $10,000,000;
(f) each contract expressly limiting or restricting the ability of the Company or any Company Subsidiary (i) includes to make distributions or declare or pay dividends in respect of their capital stock, partnership interests, membership interests or other equity interests, as the case may be, (ii) to make loans to the Company or any amendmentCompany Subsidiary, supplement or modification (iii) to grant liens on the property of the Company or any Company Subsidiary;
(g) each contract that obligates the Company or any Company Subsidiary to make any loans, advances or capital contributions to, or investments in, any Person, except for (i) loans or advances for indemnification, attorneys’ fees, or travel and other business expenses in the ordinary course of business, (ii) extended payment terms for customers in the ordinary course of business, (iii) prepayment of Taxes for repatriated employees of the Company or any Company Subsidiary or (iv) loans, advances or capital contributions to, or investments in, any Person that is not an Affiliate or employee of the Company not in excess of $10,000,000 individually;
(h) each contract that grants any right of first refusal or right of first offer or similar right with respect to any Contract listed therein assets, rights or properties of the Company or any Company Subsidiary (i) for, or that would reasonably be expected to result in, total consideration of more than $10,000,000 or (ii) with a fair market value in excess of $10,000,000;
(i) each contract (excluding (i) purchase orders given or received in the ordinary course of business and (ii) shall contracts between the Company and any Subsidiary of the Company or among any Subsidiaries of the Company) under which the Company or any Company Subsidiary (A) paid in excess of $15,000,000 in fiscal year 2020, or is expected to pay in excess of $15,000,000 in fiscal year 2021 or (B) received in excess of $20,000,000 in fiscal year 2020, or is expected to receive in excess of $20,000,000 in fiscal year 2021;
(j) each material “single source” supply contract pursuant to which goods or materials are supplied to the Company or a Company Subsidiary from a sole source;
(k) each foundry agreement, each agreement relating to assembly and testing, and each agreement relating to manufacturing services;
(l) each collective bargaining or other labor or works council agreement covering employees of the Company or a Company Subsidiary;
(m) each lease involving real property pursuant to which the Company or any Company Subsidiary is required to pay a monthly base rental in excess of $350,000;
(n) each lease or rental contract involving personal property (and not include Contracts relating primarily to real property) pursuant to which the Company or any Company Subsidiary is required to make rental payments in excess of $250,000 per month (excluding leases or rental contracts for office equipment entered into in the ordinary course of business);
(o) each contract relating to the acquisition, sale or disposition of any business unit or product line of the Company or any Company Subsidiary and with any outstanding obligations that are invoices, statements of work or purchase orders entered into pursuant material to the terms of other Contracts listed therein)Company and the Company Subsidiaries, taken as a whole, as of the date hereof, neither of this Agreement;
(p) any material Government Contract that has not been closed out;
(q) each contract with any “most favored nation” provision or that otherwise requires the Company nor or any of its Subsidiaries is Company Subsidiary (or, following the Closing, would require Parent or any Parent Subsidiary) to conduct business with any Person on a party to preferential or bound by any exclusive basis, or that includes a price protection or rebate provision in favor of the following Contracts that are Related counterparty to the Business:such contract;
(r) each settlement agreement entered into since January 1, 2018 (i) with a Governmental Entity, (ii) that requires the Company or any Contract with Company Subsidiary to pay more than $15,000,000 after the date of this Agreement or (iii) that imposes any staffing companyrestrictions, temporary employee agencyother than immaterial restrictions, professional employer organization on the business of the Company or other similar company or agencyany Company Subsidiary;
(iis) each contract with any collective bargaining agreement Top Customer or similar Contract with an employee representative any Top Distributor or labor group representing any Business Employees;Top Supplier of the Company and its Subsidiaries; and
(iiit) any Contract each contract relating to Indebtedness or to mortgaging, pledging or otherwise placing the creation of a Lien (other than a Company Permitted LienEncumbrances) on any of the Transferred Assets or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangements;
(iv) any (A) Contract (or group of related Contracts) relating with respect to or regarding Intellectual Property or (B) IT Asset Contract (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee of less than $50,000 in the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregate);
(v) any Contract which prohibits the Company or any of its Subsidiaries from competing or otherwise freely engaging in the Business as currently conducted anywhere in the world in any material respect or that otherwise restricts any activities asset of the Company or any Company Subsidiary. There are no existing breaches or defaults on the part of its Subsidiaries with respect to the Business as currently conducted in any material respect;
(vi) any Contract for the sale of Products or services, in each case, containing “most-favored nation” pricing terms Company or any exclusive dealing arrangement or any “requirements” Contract;
(vii) any Shared Contract;
(viii) any Contract with Company Subsidiary under any Material Customer or Material Supplier (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditions), and any other Contract which involves the payment by or to, performance of services by or for, or the delivery of goods by or to, or capital expenditures by, the Company in excess of $750,000 in the aggregate over the shorter of: (A) the term of such Contract or (B) the 2019 calendar year;
(A) any Contract relating to ownership of or investments in any business or enterprise and (B) partnership, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar Contract; and
(x) any Contract involving a Governmental Entity.
(b) Each Assumed Contract and each Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule is a legal, valid and binding obligation of the Company, and, to the Knowledge of the Company, each other party to such Contract, and is enforceable against the Company, and, to the Knowledge of the Company, each such other party in accordance with its terms subject, in each case, to the effect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and neither the Company nor, to the Knowledge of the Company, any other party to such Contract is in material default or material breach of such Contract, and, to the Knowledge knowledge of the Company, there does are no existing breaches or defaults on the part of any other Person under any Material Contract, in each case except where such breaches or defaults would not, individually or in the aggregate, reasonably be expected to constitute or result in a Company Material Adverse Effect. No event has occurred or not exist occurred through the Company’s or any eventCompany Subsidiary’s action or inaction or, condition to the knowledge of the Company, through the action or omission that would constitute such a material default inaction of any third party, that, with notice or material breach (whether by the lapse of time or notice both, would constitute a breach of or both) default under the terms of any Assumed Material Contract, in each case except where such breaches or defaults would not, individually or in the aggregate, reasonably be expected to constitute or result in a Company Material Adverse Effect. Each Material Contract is valid, has not been terminated prior to the date of this Agreement, is enforceable against the Company or any Contract disclosed or required the applicable Company Subsidiary that is a party to be disclosed on Section 3.11 such Material Contract, and, to the knowledge of the Disclosure ScheduleCompany, is enforceable against the other parties thereto, in each case subject to: (i) laws of general application relating to bankruptcy, insolvency, reorganization, moratorium or other similar laws, now or hereafter in effect, affecting creditors’ rights generally; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies, and, in each case, except as would not, individually or in the aggregate, reasonably be expected to constitute or result in a Company Material Adverse Effect. Since January 1, 2018Prior to the date of this Agreement, the Company has not received made available to Parent accurate and complete copies of each Material Contract in effect as of the date of this Agreement, together with all material amendments and supplements thereto in effect as of the date of this Agreement. Prior to the date of this Agreement, no Top Customer, no Top Distributor and no Top Supplier to the Company or a Company Subsidiary has canceled, terminated or substantially curtailed its relationship with the Company or any Company Subsidiary, given written notice of termination or nonrenewal with respect to any Assumed Contract the Company or any Contract disclosed Company Subsidiary of any intention to cancel, terminate or required to be disclosed on Section 3.11 of substantially curtail its relationship with the Disclosure Schedule andCompany or any Company Subsidiary, or, to the Knowledge knowledge of the Company, no other party threatened to do any such Contract intends to provide any such noticeof the foregoing.
Appears in 2 contracts
Sources: Merger Agreement (Analog Devices Inc), Merger Agreement (Maxim Integrated Products Inc)
Contracts. (a) Except as set forth on Section 3.11 The section of the Seller Disclosure Schedule (corresponding to this Section 3(b)(xv) lists the following contracts and other agreements to which (i) includes any amendment, supplement or modification to any Contract listed therein and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into pursuant to the terms of other Contracts listed therein), as either of the date hereof, neither the Company nor any of its Subsidiaries Targets is a party to or bound by any of the following Contracts that are Related to the Businessparty:
(i) any Contract with any staffing company, temporary employee agency, professional employer organization or other similar company or agency;
(ii) any collective bargaining agreement or similar Contract with an employee representative or labor group representing any Business Employees;
(iii) any Contract relating to Indebtedness or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any of the Transferred Assets or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangements;
(iv) any (A) Contract (or group of related Contracts) relating to or regarding Intellectual Property or (B) IT Asset Contract (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee of less than $50,000 in the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregate);
(v) any Contract which prohibits the Company or any of its Subsidiaries from competing or otherwise freely engaging in the Business as currently conducted anywhere in the world in any material respect or that otherwise restricts any activities of the Company or any of its Subsidiaries with respect to the Business as currently conducted in any material respect;
(vi) any Contract for the sale of Products or services, in each case, containing “most-favored nation” pricing terms or any exclusive dealing arrangement or any “requirements” Contract;
(vii) any Shared Contract;
(viii) any Contract with any Material Customer or Material Supplier (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditions), and any other Contract which involves the payment by or to, performance of services by or for, or the delivery of goods by or to, or capital expenditures by, the Company in excess of $750,000 in the aggregate over the shorter of: (A) the term of such Contract or (B) the 2019 calendar year;
(A) any Contract relating to ownership of partnership, joint venture or investments in any business other similar agreement or enterprise and arrangement;
(B) partnershipany agreement concerning confidentiality or noncompetition;
(C) any agreement with the Seller or an Affiliate of the Seller (other than between the Targets);
(D) any employment agreement or change in control agreement with any of its directors, joint ventureofficers or employees;
(E) any collective bargaining agreement;
(F) any indenture, mortgage, promissory note, loan agreement, guaranty or other agreement or commitment for the borrowing of money or any related security agreement;
(G) any agreement under which it has advanced or loaned any amount to any of its directors, officers and employees other than the advance or reimbursement of reasonable business expenses incurred or to be incurred in the ordinary course of business;
(H) any agreement under which either of the Targets is lessee or lessor of or holds or operates any real property;
(I) any agreement under which either of the Targets is lessee or lessor of or holds or operates any material personal property;
(J) any warehouse agreement;
(K) any agreement for the sale or purchase of products or services other than purchase or sale orders entered into in the ordinary course of business;
(L) any agreement under which a sale of any of the Owned Premises is pending;
(M) any environmental indemnity agreement for the benefit of a party other than either of the Targets;
(N) any license, sublicense, agreement or permission (as licensee or licensor) with respect to any of Targets' Intellectual Property;
(O) any co-ownerpack, limited liability company collaboration tolling or strategic alliance or other similar Contractsupply agreement; andor
(xP) any Contract other agreement or group of related agreements with the same party involving a Governmental Entity.
(b) Each Assumed Contract more than $250,000 per year and each Contract disclosed or required to be disclosed on Section 3.11 of not terminable by the Disclosure Schedule Target that is a legal, valid party thereto on 6 months' or less notice without penalty. The Seller has made available to the Buyer a correct and binding obligation complete copy of each such contract or agreement. With respect to each such contract or agreement (insofar as the Company, andfollowing relates to any party thereto other than a Target, to the Knowledge of the Company, each other Seller): (i) the contract or agreement is in full force and binding upon the parties thereto; (ii) no party to such Contractis in breach or default, and is enforceable against the Company, and, to the Knowledge of the Company, each such other party in accordance no event has occurred which with its terms subject, in each case, to the effect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance notice or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and neither the Company nor, to the Knowledge of the Company, any other party to such Contract is in material default or material breach of such Contract, and, to the Knowledge of the Company, there does not exist any event, condition or omission that would constitute such a material default or material breach (whether by lapse of time would constitute a breach or notice default, or bothpermit termination, modification or acceleration, under the contract or agreement; and (iii) under no party has repudiated any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 provision of the Disclosure Schedulecontract or agreement. Since January 1, 2018, The Seller has also made available to the Company has not received any Buyer a written notice summary of termination or nonrenewal the significant terms (other than with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 pricing and specifications) of the Disclosure Schedule andletter agreement, dated June 15, 1998, by and between the Seller and Ball Corporation (relating to the Knowledge supply of cans to the Company, no other party to any such Contract intends to provide any such noticeSeller).
Appears in 2 contracts
Sources: Stock Purchase Agreement (Dean Foods Co), Stock Purchase Agreement (Curtice Burns Foods Inc)
Contracts. (a) Except as set forth on Section 3.11 As of the Disclosure Schedule (which (i) includes date of this Agreement, neither Cedar nor any amendment, supplement or modification Cedar Subsidiary is a party to any Contract listed therein and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into required to be filed by Cedar as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the terms Securities Act (a “Filed Cedar Contract”) that has not been so filed.
(b) Section 3.14 of other Contracts listed therein)the Cedar Disclosure Letter sets forth, as of the date hereofof this Agreement, neither the Company nor a true and complete list, and Cedar has made available to Pine true and complete copies, of (i) other than Cedar Permits imposing geographical limitations on operations, each agreement, Contract, understanding, or undertaking to which Cedar or any of its the Cedar Subsidiaries is a party to or bound by any of the following Contracts that are Related to the Business:
(i) any Contract with any staffing company, temporary employee agency, professional employer organization or other similar company or agency;
(ii) any collective bargaining agreement or similar Contract with an employee representative or labor group representing any Business Employees;
(iii) any Contract relating to Indebtedness or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any of the Transferred Assets or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangements;
(iv) any (A) Contract (or group of related Contracts) relating to or regarding Intellectual Property or (B) IT Asset Contract (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee of less than $50,000 in the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregate);
(v) any Contract which prohibits the Company or any of its Subsidiaries from competing or otherwise freely engaging in the Business as currently conducted anywhere in the world restricts in any material respect the ability of Cedar or that otherwise restricts its Affiliates to compete in any activities business or with any Person in any geographical area, (ii) each loan and credit agreement, Contract, note, debenture, bond, indenture, mortgage, security agreement, pledge, or other similar agreement pursuant to which any material Indebtedness of the Company Cedar or any of its the Cedar Subsidiaries with respect is outstanding or may be incurred, other than any such agreement between or among Cedar and the wholly owned Cedar Subsidiaries, (iii) each partnership, joint venture or similar agreement, Contract, understanding or undertaking to which Cedar or any of the Cedar Subsidiaries is a party relating to the Business as currently conducted formation, creation, operation, management or control of any partnership or joint venture or to the ownership of any equity interest in any entity or business enterprise other than the Cedar Subsidiaries, in each case material respect;
to Cedar and the Cedar Subsidiaries, taken as a whole, (viiv) each indemnification, employment, consulting, or other material agreement, Contract, understanding or undertaking with (x) any Contract for member of the sale Cedar Board or (y) any executive officer of Products or servicesCedar, in each case, containing “most-favored nation” pricing terms other than those Contracts filed as exhibits (including exhibits incorporated by reference) to any Filed Cedar SEC Documents or Contracts terminable by Cedar or any exclusive dealing arrangement of the Cedar Subsidiaries on no more than 30 days’ notice without liability or financial obligation to Cedar or any “requirements” of the Cedar Subsidiaries, (v) each agreement, Contract;
(vii) , understanding or undertaking relating to the disposition or acquisition by Cedar or any Shared Contract;
(viii) of the Cedar Subsidiaries, with obligations remaining to be performed or liabilities continuing after the date of this Agreement, of any Contract with material business or any Material Customer or Material Supplier (excluding material amount of assets other than in the ordinary course task orders or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditions)of business, and any other Contract which involves the payment by or to(vi) each material hedge, performance of services by or forcollar, option, forward purchasing, swap, derivative, or similar agreement, Contract, understanding or undertaking. Each agreement, understanding or undertaking of the delivery of goods by or to, or capital expenditures by, the Company type described in excess of $750,000 in the aggregate over the shorter of: (Athis Section 3.14(b) the term of such and each Filed Cedar Contract or (B) the 2019 calendar year;
(A) any Contract relating is referred to ownership of or investments in any business or enterprise and (B) partnership, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar herein as a “Cedar Material Contract; and
(x) any Contract involving a Governmental Entity”.
(bc) Each Assumed Contract Except for matters which, individually or in the aggregate, have not had and each Contract disclosed would not reasonably be expected to have a Cedar Material Adverse Effect (it being agreed that for purposes of this Section 3.14(c), effects resulting from or required to be disclosed on Section 3.11 arising in connection with the matters set forth in clause (iv) of the Disclosure Schedule definition of the term “Material Adverse Effect” shall not be excluded in determining whether a Cedar Material Adverse Effect has occurred or would reasonably be expected to occur), (i) each Cedar 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 Cedar Material Contract if such Contract existed on the date of this Agreement) is a legalvalid, valid binding and binding legally enforceable obligation of Cedar or one of the CompanyCedar Subsidiaries, as the case may be, and, to the Knowledge of Cedar, of the Companyother parties thereto, except, in each other party to case, as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Laws affecting creditors’ rights generally and by general principles of equity, (ii) each such ContractCedar Material Contract is in full force and effect, and (iii) none of Cedar or any of the Cedar Subsidiaries is enforceable against the Company(with or without notice or lapse of time, or both) in breach or default under any such Cedar Material Contract and, to the Knowledge of the Company, each such other party in accordance with its terms subject, in each case, to the effect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and neither the Company nor, to the Knowledge of the Company, any other party to such Contract is in material default or material breach of such Contract, and, to the Knowledge of the Company, there does not exist any event, condition or omission that would constitute such a material default or material breach (whether by lapse of time or notice or both) under any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1, 2018, the Company has not received any written notice of termination or nonrenewal with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge of the CompanyCedar, no other party to any such Cedar Material Contract intends to provide any such noticeis (with or without notice or lapse of time, or both) in breach or default thereunder.
Appears in 2 contracts
Sources: Merger Agreement (Embarq CORP), Merger Agreement (Centurytel Inc)
Contracts. (a) Except as set Schedule 2.14 sets forth on Section 3.11 an accurate and complete list of the Disclosure Schedule (which (i) includes any amendment, supplement or modification to any Contract listed therein and (ii) shall not include all Contracts that are invoices, statements of work or purchase orders entered into pursuant to the terms of other Contracts listed therein), in effect as of the date hereof, neither the Company nor hereof to which any of the Company, any Company Subsidiary or Seller or any Affiliate thereof (but with respect to Seller and its Subsidiaries Affiliates, only such Contracts relating to the Business) is a party (other than purchase orders or standard sales orders entered into by the Company or any Company Subsidiary, as applicable, in the ordinary course of business) which by its terms: (a) is not terminable at will within six months and requires future expenditures or other performance with respect to goods, equipment or bound by services having an annual value in excess of $500,000, (b) relates to any Indebtedness other than Intercompany Balances or Intracompany Obligations, (c) (i) limits the ability of the Company or any of the following Contracts that are Related Company Subsidiaries to the Business:
(i) compete in any Contract line of business or with any staffing company, temporary employee agency, professional employer organization Person in any geographic area or other similar company that would so limit the freedom of the Company or agency;
any of the Company Subsidiaries after the Closing or (ii) contains exclusivity obligations binding on the Company or any collective bargaining agreement of the Company Subsidiaries, (d) requires any capital commitment or capital expenditure (including any series of related expenditures) by the Company or the Company Subsidiaries of greater than $500,000, (e) relates to the acquisition or disposition of any business or assets or under which the Company or any Company Subsidiaries has any future liability greater than $500,000 with respect to an “earn-out,” contingent purchase price, deferred purchase price or similar Contract contingent payment obligation, or any indemnification obligation, (f) constitutes a contract or agreement with an employee representative any officer, employee, director, stockholder or labor group representing any Business Employees;
(iii) any Contract relating to Indebtedness or to mortgaging, pledging or otherwise placing a Lien other Affiliate of the Company (other than a Permitted Lien(x) on Company Benefit Plans and Seller Benefit Plans and (y) Affiliate contracts that have been terminated prior to the Closing without any additional liability to any party), (g) constitutes an agreement that contains any indemnification obligations of the Company or Company Subsidiaries, or credit support relating to such indemnification obligations, other than any of such indemnification obligations or credit support incurred in the Transferred Assets ordinary course of business or letter of that require credit arrangements, surety or performance bonds, guarantee, support or similar arrangements;
indemnification obligations of less than $500,000, (ivh) any (A) Contract (or group of related Contracts) relating to or regarding is an Intellectual Property or (B) IT Asset Contract that is material to the Business (excluding Intellectual Property Contracts for commercially available, available off-the-shelf Software with that is not the subject of a replacement cost negotiated agreement and excluding Contracts for which the aggregate amounts payable to or an annual license fee of by the Company or the Company Subsidiaries related to such Contract are less than $50,000 250,000), (i) reflects any partnership, joint venture or similar agreement or arrangement, or (j) is a Real Property Lease covering real property in excess of 25,000 rentable square feet (the aggregate or for which Contracts described in clauses (a) through (j), the Company “Material Contracts”). Seller has made less than $50,000 in customized improvements in the aggregate);
available to Investor a true and complete copy of (vx) any each Material Contract which prohibits the Company (including all modifications and amendments thereto and written waivers thereunder) and (y) all form purchase orders or any of its Subsidiaries from competing or otherwise freely engaging in the Business as currently conducted anywhere in the world in any material respect or that otherwise restricts any activities contracts of the Company or any of its Subsidiaries with respect Company Subsidiary that are material to the Business business of the Company and the Company Subsidiaries, taken as currently conducted a whole. Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, each Material Contract to which the Company, any material respect;
Company Subsidiary or Seller (vi) any Contract for the sale of Products or services, in each case, containing “most-favored nation” pricing terms or any exclusive dealing arrangement Affiliate thereof), as applicable, is a party is in full force and effect in accordance with its respective terms. Each Material Contract is valid, binding and enforceable against the Company, a Company Subsidiary or Seller (or any “requirements” Contract;
(vii) any Shared Contract;
(viii) any Contract with any Material Customer or Material Supplier (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditionsAffiliate thereof), and any other Contract which involves the payment by or to, performance of services by or for, or the delivery of goods by or to, or capital expenditures by, the Company in excess of $750,000 in the aggregate over the shorter of: (A) the term of such Contract or (B) the 2019 calendar year;
(A) any Contract relating to ownership of or investments in any business or enterprise and (B) partnership, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar Contract; and
(x) any Contract involving a Governmental Entity.
(b) Each Assumed Contract and each Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule is a legal, valid and binding obligation of the Companyas applicable, and, to the Knowledge of the CompanySeller, each other party thereto in accordance with its terms, except as enforceability may be limited by bankruptcy Laws, other similar Laws affecting creditors’ rights and general principles of equity affecting the availability of specific performance and other equitable remedies (regardless of whether enforcement is sought in a proceeding at law or in equity) and except as would not reasonably be expected to such Contracthave, individually or in the aggregate, a material adverse effect on the Company and is enforceable against the Company Subsidiaries, taken as a whole. None of the Company, andany Company Subsidiary or Seller (or any Affiliate thereof) is in default, violation or breach in any material respect under (or, to the Knowledge of Seller, is alleged to be in default or breach in any material respect under) any such Material Contract to which it is a party, or has within the last 12 months provided or received written notice of any intention to terminate any such Material Contract. To the Knowledge of Seller, no event or circumstance has occurred and is continuing that constitutes or, with notice or the passage of time or both, would constitute, a default, violation or breach in any respect under any such Material Contract by any party thereto, or result in a termination thereof or would cause or permit the acceleration of or other changes of or to any right or obligation or the loss by the Company, each such other party in accordance with its terms subjectany Company Subsidiary or Seller (or any Affiliate thereof) of any benefit thereunder, in each case, except for such defaults, breaches, violations terminations, accelerations or changes as would not, individually or in the aggregate, reasonably be expected to the effect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in have a proceeding in equity or at law), and neither the Company nor, to the Knowledge of the Company, any other party to such Contract is in material default or material breach of such Contract, and, to the Knowledge of the Company, there does not exist any event, condition or omission that would constitute such a material default or material breach (whether by lapse of time or notice or both) under any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1, 2018, the Company has not received any written notice of termination or nonrenewal with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge of the Company, no other party to any such Contract intends to provide any such noticeMaterial Adverse Effect.
Appears in 2 contracts
Sources: Investment Agreement (Unistrut International Holdings, LLC), Investment Agreement (Tyco International LTD)
Contracts. (a) Except as set forth on Section 3.11 Part 2.12(a) of the Disclosure Schedule (identifies each Company Contract that constitutes a “Material Contract” as of the date of this Agreement. For purposes of this Agreement, each of the following shall be deemed to constitute a “Material Contract”; provided, however, that in no event shall a Benefit Plan be deemed to constitute a “Material Contract”; provided further, that “Material Contracts” shall only include Company Contracts to which an Acquired Company is a party:
(i) includes any amendment, supplement or modification to any Any Contract listed therein and which is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K promulgated under the Securities Act);
(ii) shall any Contract, with material obligations remaining to be performed or material liabilities continuing after the date of this Agreement, relating to the acquisition, development, sale or disposition of any business unit that is material to the Acquired Companies, taken as a whole;
(iii) any Contract imposing any material restriction on the right or ability of any Acquired Company: (A) to compete (or which purports to restrict in any material respect the ability of any Acquired Company to compete) with any Person or operate in any geographic area or location in which any Acquired Company may conduct business (other than (x) confidentiality agreements entered into by the Acquired Companies in the ordinary course of business and (y) Investment Advisory Arrangements or Fund Documents containing any such provisions in the ordinary course of business that address the allocation of investment opportunities or the formation of successor funds); (B) 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 or deal in any other manner with any other Person;
(iv) any Contract that contains an exclusivity provision, “most favored nation” provision (except any Investment Advisory Arrangements or Fund Documents (and any related side letter that includes in the ordinary course of business any “most favored nation” provision)), provisions granting a right of first refusal, a right of first negotiation or similar rights or any similar term for the benefit of a third party, in each case involving revenues or expenses of the Acquired Companies of more than $5,000,000 in the fiscal year ended December 31, 2016;
(v) any Contract that contains a put, call, right of first refusal or similar right pursuant to which the Acquired Companies would be required to purchase or sell, as applicable, any material equity interests of any Subsidiary of the Company or Fund, or which grants a right to sell to any Acquired Company or purchase from any Acquired Company any material asset (other than in the ordinary course of business);
(vi) any Contract which contains a material “clawback” or similar undertaking requiring the reimbursement or refund of any fees (whether performance based or otherwise) paid to the Acquired Companies (except any Investment Advisory Arrangement, Fund Document or related “clawback” guaranty Contract that includes in the ordinary course of business any such “clawback” provision (and any related side letters));
(vii) any material Contract relating to “soft-dollar” arrangements (i.e., providing for benefits relating to commissions generated from financial transactions executed by broker-dealers on behalf of any Funds);
(viii) any Contract for borrowed money (whether current, short-term or long-term and whether secured or unsecured, or any financial guarantee) incurred by the Acquired Companies or pursuant to which any of the Acquired Companies has any obligations as guarantor, surety, co-signer, endorser or co-maker in respect of any obligation of any Person, or any capital maintenance, keep well or similar agreements or arrangements, other than (A) Contracts solely among the Company or any of its wholly owned Subsidiaries and/or (B) Contracts not include Contracts involving amounts in excess of $1,250,000;
(ix) any Contract which is a mortgage, security agreement, capital lease or similar agreement, in each case, that creates or grants a Encumbrance on any property or assets that are invoicesmaterial to the Acquired Companies, statements taken as a whole;
(x) any Contract relating to any swap, forward, futures, warrant, option, cap, floor or collar financial contract, or any other interest-rate, commodity price, equity value or foreign currency protection contract or other hedging or derivative transaction involving net revenues or expenses by the Acquired Companies of work more than $5,000,000 in the fiscal year ended December 31, 2016;
(xi) any Contract that restricts payment of dividends or purchase orders any distributions in respect of the equity interests of the Acquired Companies;
(xii) any Contract pursuant to which the Acquired Companies have continuing material indemnification obligations to any Person that would reasonably be expected to result in payments in excess of $1,000,000, except for (x) any vendor or content licensing Contract entered into in the ordinary course of business or (y) non-disclosure agreements;
(xiii) any Contract, except for this Agreement, relating to the acquisition or disposition of any business or securities by Acquired Companies (whether by merger, sale of shares, sale of assets or otherwise) or pursuant to which any material earn-out, deferred or contingent payment obligations remain outstanding (excluding any such Contract for which all such rights and obligations have been satisfied), in each case currently requiring payments by or to Acquired Companies in excess of $5,000,000;
(xiv) any Contract entered into since January 1, 2014 involving any resolution or settlement of any actual or threatened Legal Proceedings (A) involving payments greater than $1,000,000 or (B) which imposes material continuing obligations on the terms Acquired Companies or that provides for any material continuing injunctive or other non-monetary relief, in each case, other than confidentiality obligations;
(xv) (A) any Contract pursuant to which any Acquired Company has been granted any option, license or similar right relating to the Intellectual Property Rights of a third party, in each case that is material to the business or assets of the Acquired Companies, taken as a whole (but excluding any license or similar right for commercially available software), and (B) any Contract pursuant to which any option, license or similar right relating to Company Intellectual Property Rights has been granted to a third party (except, for the avoidance of doubt, any Company Fund), in each case that is material to the business or assets of the Acquired Companies, taken as a whole (but excluding any non-exclusive licenses or similar rights granted in the ordinary course of business);
(xvi) any other Contracts listed thereinContract (or group of related Contracts), except for Investment Advisory Arrangements or Fund Documents or any related side letter, the performance of which currently requires aggregate payments to or from the Acquired Companies during the fiscal year ended December 31, 2016 in excess of $5,000,000 that is not terminable with less than 60 days’ notice without material penalty by the Acquired Companies;
(xvii) any Contract between the Acquired Companies on the one hand, and any Affiliate of the Company (other than any Subsidiary of the Company) on the other hand, that is required to be disclosed under Item 404 of Regulation S-K promulgated under the Securities Act;
(xviii) (A) any Investment Advisory Arrangement or any related Contract which sets forth, governs or in any way modifies any fee, charge or other amount payable to the Acquired Companies in connection with such Investment Advisory Arrangement, including any fee, revenue or expense sharing, settlement, cap, discount, waiver or reimbursement or similar arrangement with any Person under which the Acquired Companies receive or are reasonably expected to receive management fee revenues in excess of $1,000,000 per annum or (B) any Fund Document requiring the Acquired Companies to invest in any Person (where, as of the date hereof, neither the Company nor there remains any of its Subsidiaries is a party to or bound by any of the following Contracts that are Related to the Business:
(i) any Contract unfunded commitment with any staffing company, temporary employee agency, professional employer organization or other similar company or agencyrespect thereto);
(iixix) any collective bargaining agreement Fund Document containing change in control provisions or similar Contract with an employee representative or labor group representing any Business Employees;“key person” provisions; and
(iiixx) any Contract relating to Indebtedness or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any the ownership of the Transferred Assets or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangements;
(iv) any (A) Contract (or group of related Contracts) relating to or regarding Intellectual Property or (B) IT Asset Contract (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee of less than $50,000 in the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregate);
(v) any Contract which prohibits the Company real property or any of its Subsidiaries from competing or otherwise freely engaging in the Business as currently conducted anywhere in the world in any material respect or that otherwise restricts any activities of the Company or any of its Subsidiaries with respect to the Business as currently conducted in any material respect;
(vi) any Contract for the sale of Products or servicesLease, in each case, containing that is material to the Acquired Companies taken as a whole. The Company has Made Available to Parent an accurate and complete copy (in all material respects) of each Material Contract (other than Contracts described in clause “most-favored nation(a)(i)” pricing terms or any exclusive dealing arrangement or any and clause “requirements(a)(xvii)” Contract;
(vii) any Shared Contract;
(viii) any Contract with any Material Customer or Material Supplier (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditionsabove), and any other Contract which involves the payment by or to, performance of services by or for, or the delivery of goods by or to, or capital expenditures by, the Company in excess of $750,000 in the aggregate over the shorter of: (A) the term of such Contract or (B) the 2019 calendar year;
(A) any Contract relating to ownership of or investments in any business or enterprise and (B) partnership, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar Contract; and
(x) any Contract involving a Governmental Entity.
(b) Each Assumed Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, each Company Contract and each that constitutes a Material Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule is a legal, valid and binding obligation of the Companyin full force and effect, and, to the Knowledge of the Company, each other party to such Contract, and is enforceable against in accordance with its terms (except to the Companyextent that any Material Contract has expired in accordance with its terms), andsubject to the Equitable Exception.
(c) None of the Acquired Companies has violated or breached, or committed any default under, any Company Contract where such violation, breach or default would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. As of the date hereof, to the Knowledge of the Company, each no other Person has violated or breached, or committed any default under, any Company Contract, except where such other party violation, breach or default would not, individually or in accordance the aggregate, reasonably be expected to have a Material Adverse Effect. As of the date hereof, to the Knowledge of the Company, no event has occurred, and no circumstance or condition exists, that (with its terms subjector without notice or lapse of time) would reasonably be expected to: (i) result in a violation or breach of any Company Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Company Contract; (iii) give any Person the right to accelerate the maturity or performance of any Company Contract that constitutes a Material Contract; or (iv) give any Person the right to cancel, terminate or modify any Company Contract that constitutes a Material Contract, in each case, except where such violation, breach, default or acceleration would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Since January 1, 2016 through the effect date hereof, none of the Acquired Companies has received any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and neither the Company norwritten notice or, to the Knowledge of the Company, any other party to such Contract is in material communication regarding any actual or possible violation or breach of, or default or material breach of such under, any Material Contract, andexcept where such violation, breach or default would not, individually or in the aggregate, be material to the Knowledge of the CompanyAcquired Companies, there does not exist any event, condition or omission that would constitute such taken as a material default or material breach (whether by lapse of time or notice or both) under any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1, 2018, the Company has not received any written notice of termination or nonrenewal with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge of the Company, no other party to any such Contract intends to provide any such noticewhole.
Appears in 2 contracts
Sources: Merger Agreement, Agreement and Plan of Merger (Fortress Investment Group LLC)
Contracts. (a) Except as set forth on Section 3.11 of the Disclosure Schedule (which (i) includes any amendment, supplement or modification to any Contract listed therein and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into pursuant to the terms of other Contracts listed therein), as of the date hereof, neither Neither the Company nor any of its Subsidiaries Company Subsidiary is a party to or bound by any of the following Contracts that are Related to the Business:
(i) any Contract with relating to indebtedness for borrowed money or any staffing company, temporary employee agency, professional employer organization or other similar company or agency;
financial guaranty; (ii) any collective bargaining agreement Contract that materially limits the ability of the Company or similar Contract with an employee representative any Company Subsidiary to compete in any business line or labor group representing in any Business Employees;
geographic area; (iii) any Contract relating material to Indebtedness the VAB Business or to mortgaging, pledging the Business that is terminable by the other party or otherwise placing parties upon a Lien (other than a Permitted Lien) on any change in control of the Transferred Assets Company or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangements;
any Company Subsidiary; (iv) any (A) Contract (that involves required future expenditures or group guaranteed receipts by the Company or any Company Subsidiary of related Contracts) relating to or regarding Intellectual Property or (B) IT Asset Contract (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee of less more than $50,000 1,000,000 in the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregate);
any one-year period; (v) any Contract which prohibits the Company with any Self-Regulatory Organization or any Contract for the clearing of its Subsidiaries from competing or otherwise freely engaging in the Business as currently conducted anywhere in the world in any material respect or that otherwise restricts any activities of the Company or any of its Subsidiaries with respect to the Business as currently conducted in any material respect;
securities transactions; (vi) any Contract for the sale lease of Products or services, in each case, containing “most-favored nation” pricing terms or any exclusive dealing arrangement or any “requirements” Contract;
real property; (vii) any Shared Contract;
material Contract with respect to any Intellectual Property or System; (viii) any Employment Agreement; (ix) any Contract material to the VAB Business or the Business not made in the ordinary course of business; (x) any Contract that by its terms limits the payment of dividends or other distributions by the Company or any Company Subsidiary; (xi) any joint venture or partnership agreement; (xii) any Contract that grants any right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any Company Subsidiary to own, operate, sell, transfer, pledge or otherwise dispose of any material amount of assets or business; (xiii) any material agency, broker, sale representative, marketing or similar Contract; and (xiv) any Contract with any Material Customer director, officer or Material Supplier (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditions), and any other Contract which involves the payment by or to, performance Affiliate of services by or for, or the delivery of goods by or to, or capital expenditures by, the Company in excess of $750,000 in the aggregate over the shorter of: or any Company Subsidiary (A) the term of such Contract or (B) the 2019 calendar year;
(A) any Contract relating to ownership of or investments in any business or enterprise and (B) partnershipcollectively, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar Contract; and
(x) any Contract involving a Governmental Entity“Material Contracts”).
(b) True and correct copies of each Material Contract have been made available to Buyer and VAB Acquisition Sub.
(c) Each Assumed Material Contract and each Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule is a legal, valid and binding obligation arrangement of the Company or a Company Subsidiary and is in full force and effect, and none of the Company, andthe Company Subsidiaries or, to the Knowledge of the Company, each other party to such Contract, and is enforceable against the Company, and, to the Knowledge of the Company, each such other party in accordance with its terms subject, in each case, to the effect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and neither the Company nor, to the Knowledge of the Company’s Knowledge, any other party to such Contract thereto is in material default or breach in any material breach respect under the terms of such Contract, and, to the Knowledge of the Company, there does not exist any event, condition or omission that would constitute such a material default or material breach (whether by lapse of time or notice or both) under any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1, 2018, the Company has not received any written notice of termination or nonrenewal with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge of the Company, no other party to any such Contract intends to provide any such noticeMaterial Contract.
Appears in 2 contracts
Sources: Merger Agreement (Nasdaq Stock Market Inc), Merger Agreement (Instinet Group Inc)
Contracts. Section 2.11 of the Company Disclosure Schedule contains a list as of the date of this Agreement of each of the following Contracts to which the Company or a Company Subsidiary is a party, other than Company Plans (each such Contract (x) required to be listed in Section 2.11 of the Company Disclosure Schedule, (y) that is a Company IP License or (z) that is required to be filed as a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) as an exhibit to the Most Recent Company 10-K under the Exchange Act prior to the date of this Agreement (other than any Company Plan), being referred to as a “Material Contract”):
(a) Except as set forth on Section 3.11 each Contract that restricts in any material respect the ability of the Disclosure Schedule (which Company or any Company Subsidiary to (i) includes engage or compete in any amendmentgeographic area or line of business, supplement market or modification field, or to develop, sell, supply, manufacture, market, distribute, or support any material product or service, or (ii) transact with any Person (or that would so restrict Parent, any Parent Subsidiary or any Affiliate of any of them following the Closing);
(b) each joint venture agreement, partnership agreement or similar agreement with a third party;
(c) each material acquisition or divestiture Contract that contains any material indemnification obligations of the Company or a Company Subsidiary or any material “earnout” or other material contingent payment obligations that are outstanding obligations of the Company or any Company Subsidiary as of the date of this Agreement;
(d) each Contract evidencing indebtedness for money borrowed by the Company or any Company Subsidiary from a third-party lender, and each Contract pursuant to which any such indebtedness for borrowed money is guaranteed by the Company or any Company Subsidiary, in each case, in excess of $100,000;
(e) each Contract expressly limiting or restricting the ability of the Company or any Company Subsidiary (i) to make distributions or declare or pay dividends in respect of their capital stock, membership interests or other equity interests, as the case may be, (ii) to pledge their capital stock or other equity interests, (iii) to issue any guaranty, or (iv) to make loans to the Company or any Company Subsidiary;
(f) each Contract that obligates the Company or any Company Subsidiary to make any loans, or capital contributions to, or investments in, any Person in excess of $100,000 individually;
(g) each Contract that grants a third party any material right of first refusal, first notice, first negotiation or right of first offer or similar material right with respect to any material assets, rights or properties of the Company or any Company Subsidiary;
(h) each Contract listed therein or series of related Contracts (excluding (i) purchase orders given or received in the ordinary course of business in a manner consistent with past practice and (ii) shall Contracts between the Company and any wholly owned Company Subsidiary or among any wholly owned Company Subsidiaries) under which the Company or any Company Subsidiary (A) paid in excess of $500,000 in fiscal year 2023, or is expected to pay in excess of $500,000 in fiscal year 2024 or (B) received in excess of $500,000 in fiscal year 2023, or is expected to receive in excess of $500,000 in fiscal year 2024;
(i) each “single source” supply Contract pursuant to which goods or materials are supplied to the Company or a Company Subsidiary from a sole source which is expected to involve payments by the Company and Company Subsidiaries in excess of $100,000 in fiscal year 2024;
(j) each Contract containing any “take or pay”, minimum commitments or similar provisions which, in each case, is expected to involve payments (including penalty or deficiency payments) by the Company and Company Subsidiaries in excess of $100,000 in fiscal year 2024;
(k) each lease involving real property pursuant to which the Company or any Company Subsidiary is required to pay a monthly base rental in excess of $25,000;
(l) each lease or rental Contract involving personal property (and not include relating primarily to real property) pursuant to which the Company or any Company Subsidiary is required to make rental payments in excess of $25,000 per month (excluding leases or rental Contracts for office equipment entered into in the ordinary course of business in a manner consistent with past practice);
(m) each Contract relating to the acquisition, sale or disposition of any business unit or product line (other than, for the avoidance of doubt, acquisitions of inventory, equipment or raw materials in the ordinary course of business in a manner consistent with past practice) of the Company or any Company Subsidiary and with any outstanding obligations that are invoices, statements of work or purchase orders entered into pursuant material to the terms of other Contracts listed therein)Company and the Company Subsidiaries, taken as a whole, as of the date hereofof this Agreement;
(n) any Government Contract with any outstanding obligations under which the Company or the Company Subsidiaries received in excess of $500,000 in fiscal year 2023, or is expected to receive in excess of $500,000 in fiscal year 2024;
(o) each Contract with any material “most favored nation” provision or that otherwise requires the Company or any Company Subsidiary (or, following the Closing, would require Parent or any Parent Subsidiary) to conduct business with any Person on a preferential or exclusive basis that is material, or that includes a material price protection provision in favor of the counterparty to such Contract;
(p) each settlement agreement entered into since January 1, 2022 (i) with a Governmental Entity that imposes material ongoing obligations or restrictions on the Company or any Company Subsidiary; (ii) that requires the Company or any Company Subsidiary to pay more than $100,000 in excess of insurance coverage after the date of this Agreement; or (iii) that imposes any material restrictions on the business of the Company or any Company Subsidiary after the date of this Agreement;
(q) each Contract (excluding purchase orders given or received in the ordinary course of business in a manner consistent with past practice) with any Top Customer, Top Distributor or Top Supplier of the Company and the Company Subsidiaries; and
(r) each Contract relating to the creation of a Lien (other than Company Permitted Encumbrances) with respect to any material asset of the Company or any Company Subsidiary. Except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect, (1) there are no existing breaches or defaults on the part of the Company or any Company Subsidiary under any Material Contract, and (2) to the knowledge of the Company, there are no existing breaches or defaults on the part of any other Person under any Material Contract. Each Material Contract is valid, has not been terminated prior to the date of this Agreement, is enforceable against the Company or the applicable Company Subsidiary that is a party to such Material Contract, and, to the knowledge of the Company, is enforceable against the other parties thereto, in each case subject to the General Enforceability Exception, and, in each case, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect. Prior to the date of this Agreement, the Company has made available to Parent accurate and complete copies of each Material Contract in effect as of the date of this Agreement, together with all amendments and supplements thereto in effect as of the date of this Agreement (excluding purchase orders given or received in the ordinary course of business in a manner consistent with past practice). As of the date of this Agreement, no Top Customer, no Top Distributor and no Top Supplier has canceled, terminated or substantially curtailed its relationship with the Company or any Company Subsidiary, neither the Company nor any of its Subsidiaries is a party to or bound by any of the following Contracts that are Related to the Business:
(i) any Contract with any staffing company, temporary employee agency, professional employer organization or other similar company or agency;
(ii) any collective bargaining agreement or similar Contract with an employee representative or labor group representing any Business Employees;
(iii) any Contract relating to Indebtedness or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any of the Transferred Assets or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangements;
(iv) any (A) Contract (or group of related Contracts) relating to or regarding Intellectual Property or (B) IT Asset Contract (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee of less than $50,000 in the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregate);
(v) received any Contract which prohibits written notice from any Top Customer, Top Distributor or Top Supplier of any intention to cancel, terminate or substantially curtail its relationship with the Company or any of its Subsidiaries from competing or otherwise freely engaging in the Business as currently conducted anywhere in the world in any material respect or that otherwise restricts any activities of the Company or any of its Subsidiaries with respect Subsidiary, or, to the Business as currently conducted in any material respect;
(vi) any Contract for the sale of Products or services, in each case, containing “most-favored nation” pricing terms or any exclusive dealing arrangement or any “requirements” Contract;
(vii) any Shared Contract;
(viii) any Contract with any Material Customer or Material Supplier (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditions), and any other Contract which involves the payment by or to, performance of services by or for, or the delivery of goods by or to, or capital expenditures by, the Company in excess of $750,000 in the aggregate over the shorter of: (A) the term of such Contract or (B) the 2019 calendar year;
(A) any Contract relating to ownership of or investments in any business or enterprise and (B) partnership, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar Contract; and
(x) any Contract involving a Governmental Entity.
(b) Each Assumed Contract and each Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule is a legal, valid and binding obligation knowledge of the Company, and, threatened in writing to the Knowledge do any of the Company, each other party to such Contract, and is enforceable against the Company, and, to the Knowledge of the Company, each such other party in accordance with its terms subject, in each case, to the effect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and neither the Company nor, to the Knowledge of the Company, any other party to such Contract is in material default or material breach of such Contract, and, to the Knowledge of the Company, there does not exist any event, condition or omission that would constitute such a material default or material breach (whether by lapse of time or notice or both) under any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1, 2018, the Company has not received any written notice of termination or nonrenewal with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge of the Company, no other party to any such Contract intends to provide any such noticeforegoing.
Appears in 2 contracts
Sources: Merger Agreement (Superior Drilling Products, Inc.), Merger Agreement (Drilling Tools International Corp)
Contracts. (a) Except as set forth on Section 3.11 For purposes of this Agreement, the term "Company Material Contract" means any of the Disclosure Schedule (following Contracts to which (i) includes any amendment, supplement or modification to any Contract listed therein and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into pursuant to the terms of other Contracts listed therein), as of the date hereof, neither the Company nor or any of its Subsidiaries is a party to or bound by any of the following Contracts that are Related to the Business:
otherwise bound: (i) any Contract with any staffing companypursuant to which the Company and its Subsidiaries reasonably expect to spend or may receive, temporary employee agencyin the aggregate, professional employer organization or other similar company or agency;
more than $1,000,000 during the fiscal year ended December 31, 2006, (ii) any collective bargaining agreement or similar Contract with an employee representative or labor group representing containing any Business Employees;
(iii) any Contract relating to Indebtedness or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any of the Transferred Assets or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangements;
(iv) any covenant (A) Contract (or group of related Contracts) relating to or regarding Intellectual Property or (B) IT Asset Contract (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee of less than $50,000 in limiting the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregate);
(v) any Contract which prohibits the Company or any of its Subsidiaries from competing or otherwise freely engaging in the Business as currently conducted anywhere in the world in any material respect or that otherwise restricts any activities right of the Company or any of its Subsidiaries to engage in any line of business, to make use of any material Intellectual Property or to compete with any Person in any line of business, (B) granting to any customer or partner of the Company exclusive rights to use services, software or application of the Company, or (C) otherwise having a material adverse effect on the right of the Company or its Subsidiaries to sell or distribute any products or services or to purchase or otherwise obtain any software, (iii) any "material contract" (as such term is defined in Item 601(b)(10) of Regulation S-K) with respect to the Business as currently conducted Company and its Subsidiaries, (iv) any employment, consulting or indemnification Contract (other than a standard stock option, assignment of inventions or confidentiality agreement) with any executive officer or other employee of the Company, a Subsidiary of the Company or any member of the Company Board earning an annual salary in excess of $150,000, other than those that are terminable by the Company or any of its Subsidiaries on no more than 30 days' notice without material respect;
liability or financial obligation to the Company or any of its Subsidiaries, (v) any Contract relating to indebtedness or other commitment relating to the incurrence of indebtedness of the Company or an of its Subsidiaries, with respect to an amount in excess of $250,000, (vi) any Contract for relating to the sale of Products disposition or services, in each case, containing “most-favored nation” pricing terms acquisition by the Company or any exclusive dealing arrangement of its Subsidiaries, after the date of this Agreement, of a material amount of assets not in the Ordinary Course of Business or pursuant to which the Company or any “requirements” Contract;
of its Subsidiaries has any material ownership interests in any other Person other than the Company's Subsidiaries, (vii) any Shared Contract;
Contract relating to capital expenditures by the Company or any Subsidiary and involving future payments which, together with future payments under all other Contracts or commitments relating to the same capital project, exceed $1,000,000, (viii) any Contract with providing for the administration by any Material Customer Person of any part of the leases, loans, installment financing contracts, installment sales contracts, conditional sales agreements or Material Supplier (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditions), and any other Contract which involves the payment by or to, performance financial instruments of services by or for, or the delivery a similar type of goods by or to, or capital expenditures by, the Company in excess or any of $750,000 in the aggregate over the shorter of: its Subsidiaries, (A) the term of such Contract or (B) the 2019 calendar year;
(Aix) any Contract relating limiting the right of the Company or any Subsidiary to ownership of pay dividends or investments in any business or enterprise and (B) partnershipdistributions to its shareholders, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar Contract; and
(x) any Contract involving in which the Company or any Subsidiary participates as a Governmental Entity.
general partner or joint venture, (bxi) Each Assumed any Contract and each Contract disclosed between or required to be disclosed on Section 3.11 of the Disclosure Schedule is a legal, valid and binding obligation of among the Company, andon the one hand, and any of its Affiliates (other than the Company or a Subsidiary), on the other hand, (xii) any Contract providing for indemnification or any guaranty that is material to the Knowledge of the CompanyCompany and its Subsidiaries, each other party to such Contract, and is enforceable against the Company, and, to the Knowledge of the Company, each such other party in accordance with its terms subject, taken as a whole (in each case, under which the Company has continuing obligations as of the date hereof), other than any guaranty by the Company of any of its Subsidiaries' obligations or any Contract providing for indemnification entered into in connection with the distribution, sale or license of services or hardware or software products in the Ordinary Course of Business, or otherwise in accordance with the Company's standard forms of software license agreement as provided or made available to Buyer, (xiii) any Contract to provide source code to any third party for any products that are material to the effect Company, including any Contract to put such source code in escrow with a third party on behalf of a licensee or contracting party, other than any applicable Laws relating customer Contracts entered into in the Ordinary Course of Business consistent with past practice and substantially on the Company's standard terms and conditions providing for placement of such source code into escrow solely for the purpose of permitting the customer or its agents to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect use such source code in support of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and neither the Company nor, to the Knowledge internal use of the Company's products, and (xiv) any settlement Contract other party to such Contract is than (A) releases immaterial in material default nature or material breach of such Contract, and, to the Knowledge amount entered into with former employees or independent contractors of the CompanyCompany in the Ordinary Course of Business or (B) settlement Contracts only involving the payment of cash (which has been paid) in amounts that do not exceed $500,000 in any individual case. All Company Material Contracts are described in Section 2.11(a)(i) and (ii) are listed in Section 2.11(a)(i) and (ii), there does not exist any eventrespectively, condition or omission that would constitute such a material default or material breach (whether by lapse of time or notice or both) under any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Company Disclosure Schedule. Since January 1, 2018, the Company has not received any written notice of termination or nonrenewal with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge of the Company, no other party to any such Contract intends to provide any such notice.
Appears in 2 contracts
Sources: Combination Agreement (WiderThan Co., Ltd.), Combination Agreement (Realnetworks Inc)
Contracts. (a) Except as set forth on Section 3.11 2.11 of the Company Disclosure Schedule (which (i) includes any amendment, supplement or modification to any Contract listed therein and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into pursuant to the terms of other Contracts listed therein), Letter contains a list as of the date hereof, neither the Company nor any of its Subsidiaries is a party to or bound by any this Agreement of each of the following Contracts to which the Company or a Company Subsidiary is a party (each such Contract required to be listed in Section 2.11 of the Company Disclosure Letter (whether or not so listed), but excluding any Company Plan, being referred to as a “Material Contract”):
(a) Each Contract that are Related would be required to be filed by the Business:Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or disclosed by the Company on a Current Report on Form 8-K, in each case, since January 1, 2020;
(b) each Contract that (i) restricts in any Contract material respect the ability of the Company, any Company Subsidiary or any Affiliate of any of them to compete in any geographic area or line of business, solicit any client or customer or contains any similar restriction or (ii) contains a “most favored nation” provision or that otherwise requires the Company or any Company Subsidiary to conduct business with any staffing companyPerson on a preferential or exclusive basis, temporary employee agencyor that includes a price protection or rebate provision in favor of the counterparty to such Contract or any similar provision (in the case of each of (i) or (ii), professional employer organization including any such Contracts that would so restrict Parent, any Parent Subsidiary or other similar company or agencyany Affiliate following the Closing);
(iic) any collective bargaining each material joint venture agreement or similar Contract agreement with an employee representative or labor group representing any Business Employeesa third party;
(iiid) each Contract between the Company or any Company Subsidiary, on the one hand, and any director, officer or Affiliate (other than a wholly owned Company Subsidiary) 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), on the other hand, including (but not limited to) any Contract pursuant to which the Company or any Company Subsidiary has an obligation to indemnify such director, officer, Affiliate or “associate” or “immediate family” member, but excluding any Contract that directly relates to employment arrangements;
(e) each material acquisition or divestiture Contract or material licensing agreement that contains material indemnities or any “earnout” or other contingent payment obligations that are outstanding obligations of the Company or any Company Subsidiary as of the date of this Agreement;
(f) each loan or credit agreement, indenture, mortgage, note or other Contract evidencing Indebtedness for borrowed money of the Company or any Company Subsidiary from a third party lender, and each Contract pursuant to which any such Indebtedness for borrowed money is guaranteed by the Company or any Company Subsidiary, in each case in excess of $10,000,000, and any Contract relating to Indebtedness or to mortgaging, pledging or otherwise placing the creation of a Lien (other than a Company Permitted LienEncumbrances) on any of the Transferred Assets or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangements;
(iv) any (A) Contract (or group of related Contracts) relating with respect to or regarding Intellectual Property or (B) IT Asset Contract (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee of less than $50,000 in the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregate);
(v) any Contract which prohibits the Company or any of its Subsidiaries from competing or otherwise freely engaging in the Business as currently conducted anywhere in the world in any material respect or that otherwise restricts any activities asset of the Company or any of its Subsidiaries with respect to the Business as currently conducted in any material respectCompany Subsidiary;
(vig) any each Contract for that obligates the sale of Products or services, in each case, containing “most-favored nation” pricing terms Company or any exclusive dealing arrangement Company Subsidiary to make any loans, advances or any “requirements” Contract;
(vii) any Shared Contract;
(viii) any Contract with any Material Customer or Material Supplier (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditions), and any other Contract which involves the payment by or to, performance of services by or for, or the delivery of goods by or capital contributions to, or capital expenditures byinvestments in, any Person (other than the Company or any Company Subsidiary), except for (i) loans or advances for indemnification, attorneys’ fees, or travel and other business expenses in the ordinary course of business, (ii) extended payment terms for customers in the ordinary course of business or (iii) loans, advances or capital contributions to, or investments in, any Person that is not an Affiliate or employee of the Company not in excess of $750,000 500,000 individually;
(h) each Contract that grants any right of first refusal or right of first offer or similar right with respect to any material assets, rights or properties of the Company or any Company Subsidiary;
(i) each material Contract relating to the EchoStar XXIV satellite;
(j) each collective bargaining or other labor or works council agreement covering employees of the Company or a Company Subsidiary;
(k) each lease, sublease or license involving real property or equipment pursuant to which the Company or any Company Subsidiary is required to pay an annual base rental in excess of $1,200,000;
(l) each settlement agreement entered into since January 1, 2020 (i) with a Governmental Entity, (ii) that requires the aggregate over Company or any Company Subsidiary to pay more than $1,000,000 after the shorter of: date of this Agreement or (iii) that imposes any material restrictions on the business of the Company or any Company Subsidiary;
(m) each Contract (i) granting to the Company or any Company Subsidiary a material license, covenant not to sue or other right under any Intellectual Property (excluding Contracts for Software or information technology services that are both (A) the term of such Contract or (B) the 2019 calendar year;
(A) any Contract relating to ownership of or investments in any business or enterprise generally commercially available on non-discriminatory pricing terms, and (B) partnershipnot material to the operation, joint venturetracking, co-ownercontrol or use of satellites, limited liability company collaboration or strategic alliance the processing of telemetry data), (ii) granting to any third Person a license, covenant not to sue or other similar Contractright under any Company IP (other than non-exclusive licenses granted to customers, vendors or service providers in the ordinary course in connection with the sale, distribution or use of Company Products or goods or services, including licenses that are merely implied or incidental to such sale, distribution or use), (iii) materially restricting the Company’s or any Company Subsidiary’s use or exploitation of any material Company IP or (iv) governing the development or ownership of Intellectual Property material to the businesses of the Company or any Company Subsidiary (other than Contracts with employees, contractors or consultants entered into in the ordinary course of business);
(n) each Contract with any Top Customer or Top Supplier;
(o) each Contract with a Top Governmental Customer (other than any Contract that is the subject of Section 2.11(n)); and
(xp) any Contract involving a Governmental Entity.
(b) Each Assumed Contract and each Contract disclosed relating to the operation or required to be disclosed on Section 3.11 maintenance of any Company Major Station with expenditures in excess of $1,000,000 per annum (excluding, for clarity, Contracts with employees of the Disclosure Schedule is a legalCompany or any Company Subsidiaries which employees operate or maintain such Company Major Stations and excluding any Contracts relating to cleaning, valid security and binding obligation catering services provided to such Company Major Station in the ordinary course of business). There are no existing breaches or defaults on the part of the Company, and, to the Knowledge of the Company, each other party to such Contract, and is enforceable against the Company, and, to the Knowledge of the Company, each such other party in accordance with its terms subject, in each case, to the effect of Company or any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and neither the Company nor, to the Knowledge of the Company, Subsidiary under any other party to such Contract is in material default or material breach of such Material Contract, and, to the Knowledge knowledge of the Company, there does are no existing breaches or defaults on the part of any other Person under any Material Contract, in each case except where such breaches or defaults would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. No event has occurred or not exist occurred through the Company’s or any eventCompany Subsidiary’s action or inaction or, condition to the knowledge of the Company, through the action or omission that would constitute such a material default inaction of any third party, that, with notice or material breach (whether by the lapse of time or notice both, would constitute a breach of or both) default under the terms of any Assumed Material Contract, in each case except where such breaches or defaults would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Each Material Contract is valid, has not been terminated prior to the date of this Agreement, is enforceable against the Company or any Contract disclosed or required the applicable Company Subsidiary that is a party to be disclosed on Section 3.11 such Material Contract, and, to the knowledge of the Disclosure ScheduleCompany, is enforceable against the other parties thereto, in each case subject to laws of general application relating to bankruptcy, insolvency, reorganization, moratorium or other similar laws, now or hereafter in effect, affecting creditors’ rights generally, other than as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Since January 1, 2018Prior to the date of this Agreement, the Company has not received made available to Parent accurate and complete copies of each Material Contract in effect as of the date of this Agreement, together with all material amendments and supplements thereto in effect as of the date of this Agreement. Prior to the date of this Agreement, no Top Customer or Top Supplier has canceled, terminated or substantially curtailed its relationship with the Company or any Company Subsidiary, given written notice of termination or nonrenewal with respect to any Assumed Contract the Company or any Contract disclosed Company Subsidiary of any intention to cancel, terminate or required to be disclosed on Section 3.11 of substantially curtail its relationship with the Disclosure Schedule andCompany or any Company Subsidiary, or, to the Knowledge knowledge of the Company, no other party threatened to do any such Contract intends to provide any such noticeof the foregoing.
Appears in 2 contracts
Sources: Merger Agreement (EchoStar CORP), Merger Agreement (DISH Network CORP)
Contracts. (a) Except as set forth on Section 3.11 of the Disclosure Schedule (which (i) includes any amendment, supplement or modification to any Contract listed therein and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into pursuant to the terms of other Contracts listed therein), as of the date hereoffor this Agreement, neither the Company nor any of its Subsidiaries Company Subsidiary is a party to or bound any Contract required to be filed by any the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act (a “Filed Company Contract”) that has not been so filed.
(b) Section 3.13(b) of the following Contracts that are Related Company Disclosure Letter sets forth, as of the date of this Agreement, a true and complete list, and the Company has made available to the BusinessParent true and complete copies (including all amendments and supplements thereto), of each:
(i) any Contract with any staffing companyagreement, temporary employee agencyContract, professional employer organization understanding, or other similar company or agency;
(ii) any collective bargaining agreement or similar Contract with an employee representative or labor group representing any Business Employees;
(iii) any Contract relating undertaking to Indebtedness or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any of the Transferred Assets or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangements;
(iv) any (A) Contract (or group of related Contracts) relating to or regarding Intellectual Property or (B) IT Asset Contract (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee of less than $50,000 in the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregate);
(v) any Contract which prohibits the Company or any of the Company Subsidiaries is a party that (A) restricts the ability of the Company or the Company Subsidiaries to compete in any business or with any Person in any geographical area (B) could reasonably be expected to restrict the ability of Parent or any of its Subsidiaries from competing or otherwise freely engaging in the Business as currently conducted anywhere in the world 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 respect 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 otherwise restricts 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 activities Indebtedness of the Company or any of its the Company Subsidiaries with respect 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 Business as currently conducted in mortgaging, pledging or the placing of any Lien (other than Permitted Liens) on any material respectasset of the Company or any Company Subsidiary,
(iv) Partnership, joint venture or similar agreement, Contract, understanding or undertaking to which the Company or any of the Company Subsidiaries is a party relating to the formation, creation, operation, management or control of any partnership or joint venture;
(v) agreement, Contract, understanding or undertaking with any Company Top Supplier,
(vi) any Current Government Contract for involving current annual payments to the sale of Products or services, in each case, containing “most-favored nation” pricing terms Company or any exclusive dealing arrangement or any “requirements” Contract;Company Subsidiary in excess of $5,000,000,
(vii) any Shared ContractCompany Lease;
(viii) Judgment that provides for any Contract material injunctive or other non-monetary relief after the date of this Agreement;
(ix) agreement, Contract, understanding or undertaking with any Material Customer current or Material Supplier 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 Company Subsidiary is a licensee (other than to “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 party,
(xi) agreement, Contract, understanding or undertaking relating to the disposition or acquisition by the Company or any of the Company Subsidiaries of any business or Person (whether by merger, purchase of equity interests or otherwise) or any material amount of assets (excluding ordinary course task orders dispositions or service estimates containing terms acquisitions which were consummated prior to the date of this Agreement and conditions materially consistent with respect to which there is no ongoing liability or obligation of the Company’s standard terms and conditionsCompany or any Company Subsidiaries), and any other Contract which and
(xii) agreement, Contract, understanding or undertaking not otherwise described above that involves the payment by annual payments to or to, performance of services by or for, or the delivery of goods by or to, or capital expenditures by, from the Company or any Company Subsidiary in excess of $750,000 5,000,000 individually or $15,000,000 in the aggregate over aggregate. Each agreement, Contract, understanding or undertaking of the shorter of: (Atype described in this Section 3.13(b) the term of such and each Filed Company Contract or (B) the 2019 calendar year;
(A) any Contract relating is referred to ownership of or investments in any business or enterprise and (B) partnership, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar herein as a “Company Material Contract; and
(x) any Contract involving a Governmental Entity”.
(bc) Each Assumed Except for matters which, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect, (i) each Company Material Contract and each (including, for purposes of this Section 3.13(c), any Contract disclosed or required to be disclosed entered into after the date of this Agreement that would have been a Company Material Contract if such Contract existed on Section 3.11 the date of the Disclosure Schedule this Agreement) is a legalvalid, valid binding and binding legally enforceable obligation of the CompanyCompany or one of the Company Subsidiaries, as the case may be, and, to the Knowledge of the Company, each other party to such Contract, and is enforceable against the Company, and, to the Knowledge of the Companyother parties thereto, each such other party in accordance with its terms subjectexcept, in each case, to as enforcement may be limited by the effect of any applicable Laws relating to bankruptcyBankruptcy and Equity Exception, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity (regardless of whether ii) each such enforceability is considered in a proceeding in equity or at law), and neither the Company nor, to the Knowledge of the Company, any other party to such Material Contract is in material default full force and effect and (iii) none of Company or material breach of such Contract, and, to the Knowledge any of the Company, there does not exist any event, condition Company Subsidiaries is (with or omission that would constitute such a material default without notice or material breach (whether by lapse of time or notice time, or both) in breach or default under any Assumed such Company Material Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1, 2018, the Company has not received any written notice of termination or nonrenewal with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge of the Company, no other party to any such Company Material Contract intends 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 provide result in a breach or default by the Company, any such noticeCompany Subsidiary or any other party thereto of any Company Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Jacobs Engineering Group Inc /De/), Merger Agreement (Keyw Holding Corp)
Contracts. (a) Except as set forth on Section 3.11 of the Disclosure Schedule (which (i) includes any amendmentfor this Agreement, supplement or modification to any Contract listed therein and (ii) shall not include for the Contracts that are invoices, statements of work or purchase orders entered into pursuant filed as exhibits to the terms Company SEC Documents filed prior to the date of other Contracts listed therein)this Agreement (a “Filed Company Contract”) and (iii) for the Company Benefit Plans and Company Leases, Section 4.14 of the Company Disclosure Letter sets forth, as of the date hereofof this Agreement, neither the Company nor any of its Subsidiaries is a party to or bound by any true and complete list of the following Contracts that are Related to which the BusinessCompany or any Company Subsidiary is a party:
(i) any Contract with any staffing company, temporary employee agency, professional employer organization or other similar company or agencyeach “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act);
(ii) any collective bargaining agreement each agreement, Contract, understanding, or similar Contract with an employee representative or labor group representing any Business Employees;
(iii) any Contract relating undertaking to Indebtedness or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any of the Transferred Assets or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangements;
(iv) any (A) Contract (or group of related Contracts) relating to or regarding Intellectual Property or (B) IT Asset Contract (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee of less than $50,000 in the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregate);
(v) any Contract which prohibits the Company or any of its the Company Subsidiaries from competing or otherwise freely engaging in the Business as currently conducted anywhere in the world is a party that restricts in any material respect or that otherwise restricts any activities the ability of the Company or any of its the Company Subsidiaries to compete in any business or with any Person in any geographical area, except if terminable by the Company or any Company Subsidiary on no more than 90 days’ notice without penalty;
(iii) each loan and credit agreement, debenture, bond, indenture, mortgage, security agreement, or other similar Contract, including each promissory note not issued pursuant to the Company’s existing revolving credit facility, relating to Indebtedness of the Company or any of the Company Subsidiaries with respect an aggregate outstanding principal and interest amount in excess of $1,000,000 individually, other than any such agreement solely between or among the Company and the wholly owned Company Subsidiaries;
(iv) each partnership, joint venture or similar agreement, Contract, understanding or undertaking to which the Company or any of the Company Subsidiaries is a party relating to the Business as currently conducted formation, creation, operation, management or control of any partnership or joint venture or to the ownership of any equity interest in any entity or business enterprise other than the Company Subsidiaries, in each case material respectto the Company and the Company Subsidiaries, taken as a whole, other than any such agreement solely between or among the Company and the wholly owned Company Subsidiaries;
(v) each Contract with (x) any member of the Company Board or (y) any Section 16 officer of the Company, in each case other than those Contracts filed as exhibits (including exhibits incorporated by reference) to any Filed Company SEC Documents or Contracts terminable by the Company or any of the Company Subsidiaries on no more than 30 days’ notice without liability or financial obligation to the Company or any of the Company Subsidiaries;
(vi) any Contract for each agreement, Contract, understanding or undertaking relating to the sale of Products disposition or services, in each case, containing “most-favored nation” pricing terms acquisition by the Company or any exclusive dealing arrangement of the Company Subsidiaries of any business or any “requirements” Contractamount of assets for consideration in excess of $1,000,000, with obligations remaining to be performed or liabilities continuing after the date of this Agreement;
(vii) any Shared each material hedge, collar, option, forward purchasing, swap, derivative, or similar Contract;
(viii) each agreement, Contract, understanding or undertaking (A) pursuant to which the Company or any Contract with of the Company Subsidiaries is granting or being granted any Material Customer or Material Supplier material Intellectual Property License (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with other than the Company’s standard terms and conditions), and any other Contract which involves the payment by or to, performance of services by or for, or the delivery of goods by Company Subsidiaries’ standard customer Contracts or to, standard license Contracts for “off the shelf” generally available Software or capital expenditures by, the Company in excess of $750,000 in the aggregate over the shorter of: (A) the term of such Contract software-as a service platforms or standard Contracts for information technology services that include non-exclusive Software or Technology licenses); (B) that materially limits or restricts the 2019 calendar yearright of the Company or any of the Company Subsidiaries to enforce, transfer, license, register or practice any right under any of the material Company-Owned Intellectual Property Rights (other than the Company’s or the Company Subsidiaries’ standard customer Contracts); or (C) that contains an agreement for the Company or any of the Company Subsidiaries to indemnify any other Person against any claim of infringement, unauthorized use, misappropriation, dilution or violation of Intellectual Property Rights (except for customer Contracts entered into in the ordinary course of business or standard license Contracts for “off the shelf” generally available Software or software-as-a-service platforms) or standard Contracts for information technology services that include non-exclusive Software or Technology licenses;
(Aix) any agreements, understandings or arrangements granting “most favored nations” or similar terms to another Person and pursuant to such Contract relating to ownership of the Company or investments in any business or enterprise and (B) partnershipCompany Subsidiary received during the period ended December 31, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar Contract2015 more than $1,000,000; and
(x) any Company Government Contract involving with annual aggregate payments to the Company and the Company Subsidiaries under such master agreement for at least $5,000,000. Each agreement, Contract, understanding or undertaking of the type described in this Section 4.14(a) and each Filed Company Contract is referred to herein as a Governmental Entity“Material Contract.” The Company has made available to Parent true, correct and complete copies of all Material Contracts.
(b) Each Assumed Except for matters which, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect, (i) each Material Contract and each Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule is a legalvalid, valid binding and binding legally enforceable obligation of the Company, and, to the Knowledge Company or one of the CompanyCompany Subsidiaries, each other party to such Contractas the case may be, and is enforceable against the Company, and, to the Knowledge of the Company, each such other party in accordance with its terms subjectexcept, in each case, to the effect of any applicable Laws relating to as enforcement may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, moratorium or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of by general principles of equity equity, (regardless of whether ii) each such enforceability is considered in a proceeding in equity or at law), and neither the Company nor, to the Knowledge of the Company, any other party to such Material Contract is in material default or material breach of such Contractfull force and effect, and, to the Knowledge and (iii) none of the Company, there does not exist Company or any event, condition of the Company Subsidiaries is (with or omission that would constitute such a material default without notice or material breach (whether by lapse of time or notice time, or both) in breach or default under any Assumed such Material Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1, 2018, the Company has not received any written notice of termination or nonrenewal with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge of the Company, no other party to any such Material Contract intends is (with or without notice or lapse of time, or both) in breach or default thereunder.
(c) Except to provide the extent permitted by Section 5.01(b)(viii) and for any Filed Company Contracts, neither the Company nor any of the Company Subsidiaries are parties to or bound by any loan agreement, credit agreement, note, debenture, bond, indenture, mortgage, security agreement, pledge, capital or financing method leases or other similar agreement that prevents or restricts the Company, any Company Subsidiary or any direct or indirect Subsidiary thereof from (i) paying dividends or distributions to the Person or Persons who owns such noticeentity, (ii) incurring or guaranteeing Indebtedness or (iii) creating Liens that secure Indebtedness.
(d) Within the past six years, neither the Company nor any of the Company Subsidiaries has (i) breached or violated in any material respect any Law, certification, representation, clause, provision or requirement pertaining to any Company Government Contract; (ii) been suspended or debarred from bidding on government contracts by a Governmental Entity; (iii) been audited or investigated by any Governmental Entity with respect to any Company Government Contract; (iv) conducted or initiated any internal investigation or made any disclosure, nor has any Governmental Entity made any finding, with respect to any alleged or potential material irregularity, misstatement, omission or overpayment arising under or relating to a Company Government Contract; (v) received from any Governmental Entity or any other Person any written notice of any material breach, cure, set-off, show cause or default with respect to any Company Government Contract; (vi) had any Company Government Contract terminated by any Governmental Entity or any other Person for default or failure to perform; or (vii) violated any laws regarding post-employment conflicts of interest for federal officials. To the Knowledge of the Company, all claims submitted by the Company or any Company Subsidiary within the past six years pursuant to a Company Government Contract were current, accurate and complete in all material respects as of their effective date. To the Knowledge of the Company, each Company Government Contract has been legally awarded, is binding on the parties thereto, and is in full force and effect in accordance with its terms. The Company has complied in all material respects with all Laws, regulations and other governmental policies related to any Company or Company Subsidiary facility security clearance or personnel security clearance.
Appears in 2 contracts
Sources: Merger Agreement (CEB Inc.), Merger Agreement (Gartner Inc)
Contracts. Part 2.11 of the Company Disclosure Schedule contains a list as of the date of this Agreement of each of the following Contracts to which the Company or a Company Subsidiary is a party (each such Contract (x) required to be listed in Part 2.11 of the Company Disclosure Schedule or (y) that is required to be filed as a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) as an exhibit to the Most Recent Company 10-K under the Exchange Act prior to the date of this Agreement (other than any Company Plan), being referred to as a “Material Contract”):
(a) Except as set forth on Section 3.11 each Contract that restricts in any material respect the ability of the Disclosure Schedule (which Company, any Company Subsidiary or any Affiliate of any of them to (i) includes engage or compete in any amendmentgeographic area or line of business, supplement market or modification field, or to develop, sell, supply, manufacture, market, distribute, or support any Contract listed therein and material product or service, (ii) shall not include Contracts transact with any Person or (iii) solicit any client or customer (or that would so restrict Parent, any Parent Subsidiary or any Affiliate of any of them following the Closing);
(b) each joint venture agreement, partnership agreement or similar agreement with a third party;
(c) each material acquisition or divestiture Contract that contains any material indemnification obligations or any material “earnout” or other material contingent payment obligations that are invoicesoutstanding obligations of the Company or any Company Subsidiary as of the date of this Agreement;
(d) each Contract (other than any Organizational Document) between the Company or any Company Subsidiary, statements on the one hand, and any director, officer or Affiliate (other than a wholly owned Company Subsidiary) of work 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), on the other hand, including (but not limited to) any Contract pursuant to which the Company or any Company Subsidiary has an obligation to indemnify such director, officer, Affiliate or “associate” or “immediate family” member, but excluding any Company Plan;
(e) each Contract evidencing indebtedness for money borrowed by the Company or any Company Subsidiary from a third party lender, and each Contract pursuant to which any such indebtedness for borrowed money is guaranteed by the Company or any Company Subsidiary, in each case in excess of $500,000;
(f) each Contract expressly limiting or restricting the ability of the Company or any Company Subsidiary (i) to make distributions or declare or pay dividends in respect of their capital stock, partnership interests, membership interests or other equity interests, as the case may be, (ii) to pledge their capital stock or other equity interests, (iii) to issue any guaranty, (iv) to make loans to the Company or any Company Subsidiary, or (v) to grant Liens on the property of the Company or any Company Subsidiary;
(g) each Contract that obligates the Company or any Company Subsidiary to make any loans, advances or capital contributions to, or investments in, any Person in excess of $500,000 individually, except for prepayment of Taxes for repatriated employees of the Company or any Company Subsidiary;
(h) each Contract that grants any right of first refusal, first notice, first negotiation or right of first offer or similar right with respect to any material assets, rights or properties of the Company and the Company Subsidiaries, taken as a whole;
(i) each Contract or series of related Contracts (excluding (i) purchase orders given or received in the ordinary course of business consistent with past practice, (ii) any Contract for sales of Company Products of up to $2,000,000 and (iii) Contracts between the Company and any wholly owned Company Subsidiary or among any wholly owned Company Subsidiaries) under which the Company or any Company Subsidiary (A) paid in excess of $2,000,000 in fiscal year 2020, or is expected to pay in excess of $2,000,000 in fiscal year 2021 or (B) received in excess of $2,000,000 in fiscal year 2020, or is expected to receive in excess of $2,000,000 in fiscal year 2021;
(j) each material “single source” supply Contract pursuant to which goods or materials are required to be supplied to the Company or a Company Subsidiary from a sole source;
(k) each material Contract containing any “take or pay,” minimum commitments or similar provisions (other than bandwidth purchase Contracts with fixed term and pricing in the ordinary course of business consistent with past practice);
(l) each collective bargaining or other labor or works council agreement covering employees of the Company or a Company Subsidiary;
(m) each lease involving real property pursuant to which the Company or any Company Subsidiary is required to pay a monthly base rental in excess of $30,000;
(n) each lease or rental Contract involving personal property (and not relating primarily to real property) pursuant to which the Company or any Company Subsidiary is required to make rental payments in excess of $30,000 per month (excluding leases or rental Contracts for vehicles or office equipment entered into pursuant in the ordinary course of business);
(o) each Contract relating to the terms acquisition, sale or disposition of other Contracts listed therein)any business unit or product line of the Company or any Company Subsidiary and with any outstanding obligations that are material to the Company and the Company Subsidiaries, taken as a whole, as of the date hereof, neither the Company nor any of its Subsidiaries is a party to or bound by any of the following Contracts that are Related to the Business:this Agreement;
(p) each Contract (i) between the Company or any Company Subsidiary and any Governmental Entity or (ii) between the Company or any Company Subsidiary, as a subcontractor and any prime contractor to any Governmental Entity (excluding, in each case, Contracts in the ordinary course of business consistent with past practice with (i) national oil companies or any prime contractors thereof or (ii) government-owned telecommunications providers);
(q) each material Contract with any staffing company“most favored nation” provision or that otherwise requires the Company or any Company Subsidiary (or, temporary employee agencyfollowing the Closing, professional employer organization would require Parent or other similar company any Parent Subsidiary) to conduct business with any Person on a preferential or agencyexclusive basis, or that includes a price protection or rebate provision in favor of the counterparty to such Contract;
(iir) any collective bargaining agreement each settlement agreement, consent decree, commitment letter, or similar Contract arrangement entered into with an employee representative a Governmental Entity that imposes material ongoing obligations or labor group representing restrictions on the Company or any Business EmployeesCompany Subsidiary;
(iiis) each settlement agreement (i) that requires the Company or any Company Subsidiary to pay more than $500,000 after the date of this Agreement or (ii) that imposes any material restrictions on the business of the Company or any Company Subsidiary;
(t) each Contract (excluding purchase, work or similar orders pursuant to master service or similar Contracts) with any Top Customer or Top Supplier of the Company and its Subsidiaries;
(u) each Contract relating to the creation of a Lien (other than Company Permitted Encumbrances) with respect to any Governmental Authorization or material asset of the Company or any Company Subsidiary; and
(v) (i) each employment Contract or consulting Contract that (A) is not terminable at will or for convenience by the Company on thirty (30) days’ or less notice and (B) obligates the Company or any Company Subsidiary to make payments or provide compensation in excess of $250,000 annually; and (ii) any Contract relating to Indebtedness any retention, change in control or transaction bonus or severance or other termination obligation to mortgagingany current or former employee, pledging individual, consultant, officer or otherwise placing a Lien (other than a Permitted Lien) on any of the Transferred Assets or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangements;
(iv) any (A) Contract (or group of related Contracts) relating to or regarding Intellectual Property or (B) IT Asset Contract (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee of less than $50,000 in the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregate);
(v) any Contract which prohibits the Company or any of its Subsidiaries from competing or otherwise freely engaging in the Business as currently conducted anywhere in the world in any material respect or that otherwise restricts any activities director of the Company or any of its Subsidiaries with respect to the Business as currently conducted in any material respect;
(vi) any Contract for the sale of Products or servicesCompany Subsidiary, in each case, containing “most-favored nation” pricing terms case other than Company Equity Plans. There are no existing breaches or defaults on the part of the Company or any exclusive dealing arrangement or any “requirements” Contract;
(vii) any Shared Contract;
(viii) any Contract with Company Subsidiary under any Material Customer or Material Supplier (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditions), and any other Contract which involves the payment by or to, performance of services by or for, or the delivery of goods by or to, or capital expenditures by, the Company in excess of $750,000 in the aggregate over the shorter of: (A) the term of such Contract or (B) the 2019 calendar year;
(A) any Contract relating to ownership of or investments in any business or enterprise and (B) partnership, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar Contract; and
(x) any Contract involving a Governmental Entity.
(b) Each Assumed Contract and each Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule is a legal, valid and binding obligation of the Company, and, to the Knowledge of the Company, each other party to such Contract, and is enforceable against the Company, and, to the Knowledge of the Company, each such other party in accordance with its terms subject, in each case, to the effect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and neither the Company nor, to the Knowledge of the Company, any other party to such Contract is in material default or material breach of such Contract, and, to the Knowledge knowledge of the Company, there does are no existing breaches or defaults on the part of any other Person under any Material Contract, in each case except where, individually or in the aggregate, such breaches or defaults would not exist reasonably be expected to constitute or result in a Company Material Adverse Effect. No event has occurred or not occurred through the Company’s or any eventCompany Subsidiary’s action or inaction or, condition to the knowledge of the Company, through the action or omission that would constitute such a material default inaction of any third party, that, with notice or material breach (whether by the lapse of time or notice both, would constitute a breach of or bothdefault under the terms of any Material Contract, in each case except where, individually or in the aggregate, such breaches or defaults would not reasonably be expected to constitute or result in a Company Material Adverse Effect. Each Material Contract is valid, has not been terminated prior to the date of this Agreement, is enforceable against the Company or the applicable Company Subsidiary that is a party to such Material Contract, and, to the knowledge of the Company, is enforceable against the other parties thereto, in each case subject to: (i) under any Assumed Contract laws of general application relating to bankruptcy, insolvency, reorganization, moratorium or other similar laws, now or hereafter in effect, affecting creditors’ rights generally; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies, and, in each case, except as, individually or in the aggregate, would not reasonably be expected to constitute or result in a Company Material Adverse Effect. To the knowledge of the Company, none of the Company or any Contract disclosed Company Subsidiary has any outstanding dispute with a Top Customer or required Top Supplier, other than disputes arising in the ordinary course of business that are not material to be disclosed on Section 3.11 the business of the Disclosure ScheduleCompany and the Company Subsidiaries, taken as a whole. Since January 1, 2018Prior to the date of this Agreement, the Company has not received made available to Parent correct and complete copies of each Material Contract in effect as of the date of this Agreement, together with all material amendments and supplements thereto in effect as of the date of this Agreement. Prior to the date of this Agreement, no Top Customer or Top Supplier to the Company or a Company Subsidiary has canceled, terminated or substantially curtailed its relationship with the Company or any Company Subsidiary, given written notice of termination or nonrenewal with respect to any Assumed Contract the Company or any Contract disclosed Company Subsidiary of any intention to cancel, terminate or required to be disclosed on Section 3.11 of substantially curtail its relationship with the Disclosure Schedule andCompany or any Company Subsidiary, or, to the Knowledge knowledge of the Company, no other party threatened to do any such Contract intends to provide any such noticeof the foregoing.
Appears in 2 contracts
Sources: Merger Agreement (RigNet, Inc.), Merger Agreement (Viasat Inc)
Contracts. (ai) Section 3.15(a) of the Photomedex Technology Disclosure Schedule sets forth an accurate list of the following Contracts to which the Company engaged in the Company Business is a Party or by which the Company is bound that is primarily used in, or otherwise necessary for, the operation of the Company Business (collectively, the “Company Business Contracts”):
(i) each Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials by the Company engaged in the Company Business of an amount or value in excess of $25,000;
(ii) each Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials to the Company engaged in the Company Business of an amount or value in excess of $25,000;
(iii) each Lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000);
(iv) each Contract in respect of Intellectual Property (other than licenses for shrinkwrap, clickwrap or other similar commercially available off-the-shelf software that has not been modified or customized by a third Party for the Company Business);
(v) each collective bargaining agreement and other Contract to or with any labor union or other employee representative of a group of employees;
(vi) each joint venture, partnership, and other Contract (however named) involving a sharing of profits, losses, costs, or liabilities by the Company with any other Person;
(vii) any agreement relating to indebtedness for borrowed money or extensions of credit;
(viii) each Contract containing covenants that restrict the business activity of the Company, including, but not limited to, any exclusivity covenants, or limit the freedom of the Company to engage in any line of business or to compete with any Person;
(ix) any agreement providing for indemnification by the Company, other than indemnification provided to customers or vendors in the Ordinary Course of Business;
(x) any employment or consulting Contract with any Business Employee, or any consultant or contractor of the Company Business, other than at-will arrangements that do not include severance or “change of control” provisions; and
(xi) each amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing.
(ii) Except as set forth on in Section 3.11 3.15(b) of the Photomedex Technology Disclosure Schedule (which (i) includes any amendment, supplement or modification to any Contract listed therein and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into pursuant to the terms of other Contracts listed therein)Schedule, as of the date hereof, neither all of the Company nor any of its Subsidiaries is a party to or bound by any of the following Business Contracts that are Related in full force and effect and are enforceable in accordance with their terms except to the Business:
extent that such enforceability (i) any Contract with any staffing companymay be limited by bankruptcy, temporary employee agencyinsolvency, professional employer organization reorganization, moratorium or other similar company or agency;
laws relating to creditors’ rights generally, and (ii) any collective bargaining agreement or similar Contract with an employee representative or labor group representing any Business Employees;is subject to general principles of equity.
(iii) any Contract relating to Indebtedness or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted LienExcept as set forth in Section 3.15(c) on any of the Transferred Assets or letter Photomedex Technology Disclosure Schedule, as of credit arrangementsthe date hereof, surety or performance bonds, guarantee, support or similar arrangements;
(iv) any (A) Contract (or group of related Contracts) relating to or regarding Intellectual Property or (B) IT Asset Contract (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee of less than $50,000 in the aggregate or for which the Company has made less than $50,000 is not in customized improvements in the aggregate);
(v) any Contract which prohibits the Company or any of its Subsidiaries from competing or otherwise freely engaging in the Business as currently conducted anywhere in the world breach in any material respect of or that otherwise restricts any activities default under (and to PHMD’s Knowledge, no event has occurred which with notice or the passage of the Company time or any of its Subsidiaries with respect to the Business as currently conducted both would constitute a breach in any material respect;
(virespect of or default under) any Business Contract for the sale of Products or services, in each case, containing “most-favored nation” pricing terms or any exclusive dealing arrangement or any “requirements” Contract;
(vii) any Shared Contract;
(viii) any Contract with any Material Customer or Material Supplier (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditions), and any other Contract which involves the payment by or to, performance of services by or for, or the delivery of goods by or to, or capital expenditures by, the Company in excess of $750,000 in the aggregate over the shorter of: (A) the term of such Contract or (B) the 2019 calendar year;
(A) any Contract relating to ownership of or investments in any business or enterprise and (B) partnership, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar Contract; and
(x) any Contract involving a Governmental Entity.
(b) Each Assumed Contract and each Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule is a legal, valid and binding obligation of the Company, and, to the Knowledge of the Company, each other party to such Contract, and is enforceable against the Company, and, to the Knowledge of the Company, each such other party in accordance with its terms subject, in each case, to the effect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and neither the Company nor, to the Knowledge of the CompanyPHMD’s Knowledge, is any other party to such Contract is in material default or material breach of such Contract, and, to the Knowledge of the Company, there does not exist any event, condition or omission that would constitute such a material default or material breach (whether by lapse of time or notice or both) under any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1, 2018, the Company has not received any written notice of termination or nonrenewal with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge of the Company, no other party Party to any such Business Contract intends to provide in breach in any material respect of or default under such noticeBusiness Contract.
Appears in 2 contracts
Sources: Merger Agreement (Photomedex Inc), Merger Agreement (Ds Healthcare Group, Inc.)
Contracts. (a) Except as set forth on in Section 3.11 5.19(a) of the Company Disclosure Schedule (which (i) includes and any amendment, supplement or modification Contract filed as an exhibit to any Contract listed therein Company Report filed between January 1, 2014 and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into pursuant to the terms of other Contracts listed therein)date hereof, as of the date hereof, neither none of the Company nor or any of its Subsidiaries is a party to or bound by any of the following Contracts that are Related to the Businessany:
(i) any Contract required to be filed by the Company with any staffing company, temporary employee agency, professional employer organization or other similar company or agencythe SEC pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(ii) Contract with respect to any collective bargaining agreement partnership, joint venture, limited liability or similar Contract with an employee representative arrangement or labor group representing any Business Employees;
(iii) any Contract agreement relating to Indebtedness the formation, creation, operation, management or to mortgaging, pledging control of any partnership or otherwise placing a Lien (other than a Permitted Lien) on any of the Transferred Assets or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangements;
(iv) any (A) Contract (or group of related Contracts) relating to or regarding Intellectual Property or (B) IT Asset Contract (excluding commercially available, off-the-shelf Software joint venture with a replacement cost or an annual license fee of less than $50,000 in the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregate);
(v) any Contract which prohibits third Person material to the Company or any of its Subsidiaries from competing or otherwise freely engaging in which the Company owns any interest valued at more than $25,000,000 without regard to percentage voting or economic interest;
(iii) Contract that grants any rights of first refusal, rights of first negotiation or other similar rights to any Person with respect to the sale of any material business of the Company and its Subsidiaries, taken as a whole, or of any Subsidiary of the Company that is material to the Company and its subsidiaries, taken as a whole;
(iv) Contract (x) material to any line of business of, or material geographic region in which a material portion of the business of, the Company and its Subsidiaries, taken as a whole, is conducted or (y) that to the Knowledge of the Company as of the date hereof, would following the Effective Time, purport to bind Parent or any of its Subsidiaries (other than the Surviving Corporation and any of its Subsidiaries) in a way that would be material to the life science tools and performance materials businesses of Parent and its Subsidiaries, in the Business as currently conducted anywhere in the world in any material respect or that otherwise restricts any activities case of clauses (x) and (y), containing covenants of the Company or any of its Subsidiaries with respect Subsidiaries, in each case purporting to the Business as currently conducted limit in any material respectrespect any (A) line of business, (B) type of product or service, and channel of distribution, or field of commercial endeavor or (C) geographical area in which or with regard to which the Company, its Subsidiaries or, after the Effective Time, Parent or any Affiliate of Parent (including the Surviving Corporation and its Subsidiaries) may operate excluding, in each case, Contracts which limit the right of the Company and its Subsidiaries to use assets or properties of the counterparty to such Contract (or any Affiliate of such counterparty) and any license of Intellectual Property that purports to limit the scope of use thereof;
(v) Collective Bargaining Agreement (excluding agreements with terms set by applicable Law);
(vi) Contract pursuant to which the Company or any of its Subsidiaries has, or has guaranteed, any Indebtedness in an amount in excess of $50,000,000 outstanding (other than intercompany indebtedness);
(vii) each Contract to which the Company or any of its Subsidiaries is a party for the sale direct or indirect acquisition or disposition by the Company or any of Products its Subsidiaries of properties, assets, capital stock or servicesbusinesses (including by way of a put, call, right of first refusal or similar right pursuant to which the Company could be required to purchase or sell) for, in each case, containing “most-favored nation” pricing terms aggregate consideration of more than $50,000,000, which has not yet been consummated or pursuant to which the Company or any exclusive dealing arrangement of its Subsidiaries has continuing material warranty, indemnity or any “requirementsearn-out” Contract;
obligations (vii) any Shared Contractor other current, future or contingent material obligations), except in each case for acquisitions and dispositions of properties and assets in the ordinary course of business (including acquisitions of supplies and acquisitions and dispositions of inventory);
(viii) Contract containing any standstill or similar agreement pursuant to which the Company or any of its Subsidiaries has agreed not to acquire assets or securities of another Person that may reasonably be expected to bind the Surviving Corporation or any of its Affiliates on or after March 31, 2015;
(ix) Contract (or series of related Contracts) with any Material Customer agency or Material Supplier (excluding ordinary course task orders department of the United States federal government or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditions), and any other Contract which involves the payment by or to, performance of services by or forGovernmental Entity, or other Government Contract, for the delivery purchase of goods by or to, or capital expenditures by, and/or services from the Company or any of its Subsidiaries which would reasonably be expected to result in payments to the Company or any of its Subsidiaries in excess of $750,000 25,000,000 in any fiscal year;
(x) Contract that is material to the aggregate over Company and its Subsidiaries, taken as a whole, that prohibits the shorter of: payment of dividends or distributions in respect of the capital stock or other ownership interests of the Company or any of its wholly-owned Subsidiaries, prohibits the pledging of the capital stock or other ownership interests of the Company or any wholly-owned Subsidiary of the Company or prohibits the issuance of guarantees by any wholly-owned Subsidiary of the Company;
(xi) Contract material to the business of the Company and its Subsidiaries, taken as a whole, and concerning Intellectual Property pursuant to which the Company or any of its Subsidiaries is a party or by which any of them or their assets are bound or otherwise benefits, including any Contract material to the business of the Company and its Subsidiaries, taken as a whole, under which (A) the term Company or any of such Contract its Subsidiaries is granted any right, title or interest in or to any Intellectual Property, (B) any Person is granted any right, title or interest in or to any Intellectual Property by the Company or any of its Subsidiaries (including, in the case of clause (A) or (B), any license or any other right to use or otherwise exploit, any assignment of, any option, right of first or last refusal, or similar right in respect of, any royalty or revenue interest relating to, and any right to research, develop or manufacture, distribute, market, sell or otherwise commercialize any Intellectual Property related to any products of the Company or any of its Subsidiaries, and that is otherwise material to the business of the Company and its Subsidiaries, taken as a whole) or (C) the 2019 calendar yearCompany’s or any of its Subsidiaries’ use of any Intellectual Property owned by, or exclusively licensed to, the Company or any of its Subsidiaries is restricted (including by any coexistence agreement, settlement agreement, covenant not to ▇▇▇ or any other forbearance or restriction) (collectively, “IP Contracts”), provided, that the following IP Contracts shall not be required to be set forth in Section 5.19(a) of the Company Disclosure Schedule: (1) licenses for commercial “off-the-shelf” or “shrink-wrap” software that have not been modified or customized for the Company or any of its Subsidiaries and that are not material to the conduct of the business of any member of the Company Group, and (2) nondisclosure agreements, consulting agreements, materials transfer agreements or evaluation agreements that are not material to any product or to the conduct of the business of a Company Group member;
(Axii) Contract to which the Company or any Contract relating of its Subsidiaries is a party that would reasonably be expected to ownership require by its terms aggregate payments by any party thereto of or investments more than $25,000,000 in any business or enterprise and (B) partnershipfiscal year after the date hereof, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar Contract; and
(x) any Contract involving a Governmental Entity.
(b) Each Assumed Contract and each Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule is a legal, valid and binding obligation of the Company, and, to the Knowledge of the Company, each other party to such Contract, and is enforceable against the Company, and, to the Knowledge of the Company, each such other party in accordance with its terms subject, in each case, to the effect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and neither the Company nor, to the Knowledge of the Company, any other party to such Contract is in material default or material breach of such Contract, and, to the Knowledge of the Company, there does not exist any event, condition or omission that would constitute such a material default or material breach (whether by lapse of time or notice or both) under any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1, 2018, the Company has not received any written notice of termination or nonrenewal with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge of the Company, no other party to except for any such Contract intends that may be cancelled by the Company or any of its Subsidiaries, without any material penalty or other liability to provide the Company or any such noticeof its Subsidiaries, upon notice of 90 days or less; or
(xiii) Contract pursuant to which the Company or any of its Subsidiaries has made any loan to any Person that has an outstanding principal balance as of the date hereof of more than $15,000,000 (other than to the Company or any of its wholly owned Subsidiaries and other than extensions of trade credit in the ordinary course of business consistent with past practice).
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Sigma Aldrich Corp)
Contracts. The Company Disclosure Schedule lists all written and oral contracts and other written agreements, arrangements and understandings (a“Contracts”) Except as set forth on Section 3.11 to which any of the Disclosure Schedule (which (i) includes any amendment, supplement or modification to any Contract listed therein Company and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into pursuant to the terms of other Contracts listed therein), as of the date hereof, neither the Company nor any of its Subsidiaries is a party to or bound by any of the following Contracts that are Related to the Businessis bound:
(i) any Contract with any staffing company, temporary employee agency, professional employer organization or other similar company or agencywhere the performance of which will involve consideration in excess of $100,000;
(ii) any collective bargaining agreement or similar Contract with an employee representative or labor group representing any Business Employees;
(iii) any Contract relating to Indebtedness or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any of the Transferred Assets or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangements;
(iv) any (A) Contract (or group of related Contracts) relating to or regarding Intellectual Property or (B) IT Asset Contract (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee of less than $50,000 in the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregate);
(v) any Contract which prohibits restrict the Company or any of its Subsidiaries from competing or otherwise freely engaging in the Business as currently conducted anywhere in the world any line of business in any material respect geographic area or that otherwise restricts competing with any activities person or entity or restricting the ability of the Company or any of its Subsidiaries with respect from acquiring equity securities of any Person;
(iii) which are employment, engagement, consulting or severance contracts applicable to any employee, officer, director, consultant, stockholder, distributor, dealer or sales representative of any of the Business as currently conducted in Company or a Subsidiary;
(iv) which are acquisition, disposition, joint venture or similar agreements (each, an “Acquisition or Divestiture Agreement”);
(v) which is an evidence of any material respectIndebtedness;
(vi) which is an intercompany agreement, including without limitation, any Contract for the sale of Products tax sharing, expense sharing, employee leasing or services, in each case, containing “most-favored nation” pricing terms or any exclusive dealing arrangement or any “requirements” Contractother similar agreement;
(vii) which is a contract with any Shared ContractGovernmental Authority;
(viii) any Contract with any Material Customer or Material Supplier (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditions), and any other Contract which involves the payment by or to, performance of services by or for, or the delivery of goods by or to, or capital expenditures by, is a lease pursuant to which the Company leases (as lessor or lessee) any personal property in excess of $750,000 100,000;
(ix) which is an agreement, arrangement or program pursuant to which the Company has offered or made available to its customers (including its distributors) any volume discount, rebate or advertising or promotional credit or allowance;
(x) which is an agreement with a customer which provides for a rebate, lowest price guarantee or volume discount;
(xi) which is a guaranty under which the Company is a guarantor or otherwise responsible for any liability or obligation (including Indebtedness) of any other Person;
(xii) which is an outstanding power of attorney;
(xiii) which is an other agreement or commitment which is material to the Company or its business or operations; or
(xiv) which is a management, administrative services or data processing Contract (the Contracts in clause (i)-(xiv), each a “KCI Contract” and collectively, the “KCI Contracts”). Except as set forth in the aggregate over Company Disclosure Schedule, there are no continuing or contingent payment obligations under any Acquisition or Divestiture Agreement, and there are no outstanding indemnity claims under any Acquisition or Divestiture Agreement. The Company has made available to Purchaser a correct and complete copy of each of the shorter ofKCI Contracts. With respect to each KCI Contract: (A) the term KCI Contract is legal, binding, enforceable, and in full force and effect, subject to the laws of such Contract or (B) the 2019 calendar year;
(A) any Contract general application relating to ownership bankruptcy, insolvency and relief of debtors and rules of law governing specific performance, injunctive relief or investments in any business or enterprise other equitable remedies; and (B) partnership, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar Contract; and
(x) any Contract involving a Governmental Entity.
(b) Each Assumed Contract and each Contract disclosed or required to be disclosed on Section 3.11 none of the Disclosure Schedule is a legal, valid Company and binding obligation of the Company, and, to the Knowledge of the Company, each other party to such Contractits Subsidiaries is, and is enforceable against the Company, and, to the Knowledge of the Company, each such other party in accordance with its terms subject, in each case, to the effect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and neither the Company nor, to the Knowledge of the Company, any other party to such Contract is in material default or material breach of such Contract, and, to the Knowledge of the Company, there does not exist any event, condition or omission that would constitute such a material default or material breach (whether by lapse of time or notice or both) under any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1, 2018, the Company has not received any written notice of termination or nonrenewal with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge of the Company, no other party is, in breach or default, and no event has occurred which with notice or lapse of time would constitute a breach or default. Neither the Company nor any Subsidiary has received or given any written notice of an intention to cancel or terminate any such Contract intends to provide any such noticeKCI Contract.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Actuant Corp), Stock Purchase Agreement (Actuant Corp)
Contracts. Section 3(j) of the Disclosure Schedule lists the following contracts and other agreements relating to the Business to which Seller is a party with respect to the Acquired Assets:
(ai) Except as set forth Any agreement (or group of related agreements) for the lease of personal property to or from any Person;
(ii) Any agreement concerning a partnership or joint venture;
(iii) Any agreement (or group of related agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation under which it has imposed a Security Interest on any of its assets, tangible or intangible;
(iv) Any confidentiality or non-competition agreement;
(v) Any profit sharing, deferred compensation, severance, or other material plan or arrangement for the benefit of the current or former employees (other than in connection with any Client Contract);
(vi) Any agreement for the employment of any individual on a full-time, part-time, consulting, or other basis (other than in connection with any Client Contract);
(vii) Any agreement under which it has advanced or loaned any amount to any of the directors, officers, and employees of Seller other than expense advances made in the ordinary course of business;
(viii) Any agreement (other than a Client Contract) under which the consequences of a default or termination could have a material adverse effect on the business, financial condition, operations, results of operations, or future prospects of the Business; or
(ix) Any other agreement (or group of related agreements) the performance of which involves consideration in excess of $5,000 (other than a Client Contract). Seller has delivered to Buyer a correct and complete copy of each written agreement listed in Section 3.11 3(j) of the Disclosure Schedule (which (ias amended to date) includes any amendment, supplement or modification to any Contract listed therein and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into pursuant to a written summary setting forth the terms of other Contracts listed therein), as of the date hereof, neither the Company nor any of its Subsidiaries is a party to or bound by any of the following Contracts that are Related to the Business:
(i) any Contract with any staffing company, temporary employee agency, professional employer organization or other similar company or agency;
(ii) any collective bargaining agreement or similar Contract with an employee representative or labor group representing any Business Employees;
(iii) any Contract relating to Indebtedness or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any of the Transferred Assets or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangements;
(iv) any (A) Contract (or group of related Contracts) relating to or regarding Intellectual Property or (B) IT Asset Contract (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee of less than $50,000 in the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregate);
(v) any Contract which prohibits the Company or any of its Subsidiaries from competing or otherwise freely engaging in the Business as currently conducted anywhere in the world in any material respect or that otherwise restricts any activities of the Company or any of its Subsidiaries with respect to the Business as currently conducted in any material respect;
(vi) any Contract for the sale of Products or services, in each case, containing “most-favored nation” pricing terms or any exclusive dealing arrangement or any “requirements” Contract;
(vii) any Shared Contract;
(viii) any Contract with any Material Customer or Material Supplier (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditions), and any other Contract which involves the payment by or to, performance of services by or for, or the delivery of goods by or to, or capital expenditures by, the Company in excess of $750,000 in the aggregate over the shorter ofeach oral agreement referred to therein. With respect to each such agreement: (A) the term of such Contract or agreement is legal, valid, binding, enforceable, and in full force and effect in all material respects; (B) the 2019 calendar year;
(A) any Contract relating to ownership of or investments in any business or enterprise and (B) partnershipSeller’s Knowledge, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar Contract; and
(x) any Contract involving a Governmental Entity.
(b) Each Assumed Contract and each Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule is a legal, valid and binding obligation of the Company, and, to the Knowledge of the Company, each other no party to such Contract, and is enforceable against the Company, and, to the Knowledge of the Company, each such other party in accordance with its terms subject, in each case, to the effect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and neither the Company nor, to the Knowledge of the Company, any other party to such Contract is in material default breach or material breach of such Contractdefault, and, to the Knowledge of the Company, there does not exist any event, condition and no event has occurred which with notice or omission that would constitute such a material default or material breach (whether by lapse of time would constitute a material breach or notice default, or bothpermit termination, modification, or acceleration, under the agreement; and (C) under to Seller’s Knowledge, no party has repudiated any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 material provision of the Disclosure Schedule. Since January 1, 2018, the Company has not received any written notice of termination or nonrenewal with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge of the Company, no other party to any such Contract intends to provide any such noticeagreement.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Futuris Co), Asset Purchase Agreement (Recruiter.com Group, Inc.)
Contracts. (a) Except for this Agreement, the Contribution, Assumption and Purchase Agreement, any Company Plans or as set forth in Section 3.16(a) of the Company Disclosure Schedule, as of the date of this Agreement, neither the Company nor any of its Subsidiaries is a party to or expressly bound by, and none of their respective properties or assets is subject to, any Contract that
(i) is (x) a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities Act) or is (y) a Contract attached as an exhibit to a Current Report on Form 8-K filed by the Company with the SEC under which the Company or any of its Subsidiaries still has material rights or obligations;
(ii) relates to any joint venture, partnership, limited liability or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any joint venture, partnership or other similar arrangement;
(iii) is (x) an indenture, credit agreement, loan agreement, security agreement, guarantee, credit enhancement, note, mortgage or other Contract providing for or securing Indebtedness (other than capital lease obligations) of the Company or any of its Subsidiaries (in each case, whether incurred, assumed, guaranteed or secured by any asset) in excess of $250,000 or (y) a capital lease obligation in excess of $1,000,000;
(iv) is (x) an Inbound License Agreement, (y) an Outbound License Agreement or (z) a Technology Agreement;
(v) is a settlement, conciliation or similar Contract with any Governmental Authority which (x) would require the Company or any of its Subsidiaries to pay consideration of more than $250,000 after the date of this Agreement or (y) would otherwise limit the operation of the Company (or Surviving Corporation or Parent or any of their respective Affiliates) in any material respect after the Closing;
(vi) limits the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, would restrict the ability of the Surviving Corporation or Parent or any of their respective Affiliates) (x) to engage in any line of business, to compete with any Person or operate at any geographic location, or to sell or supply any service (including any non-compete, exclusivity or “most-favored nation” provisions), or (y) to purchase or acquire an ownership interest in any other entity, or includes a covenant not to ▇▇▇ a third party, except, in the case of (x) and (y), for any such Contract that may be canceled without penalty or other liability of the Company upon notice of ninety (90) days or less;
(vii) is a Contract under which the Company or any of its Subsidiaries is (w) a lessee of real property, (x) a lessee of, or holds or uses, any machinery, equipment, vehicle or other tangible personal property owned by a third person or entity, (y) a lessor of real property, or (z) a lessor of any tangible personal property owned by the Company or any of its Subsidiaries, in each case of (w), (x), (y) and (z), which requires future payments in excess of $1,000,000 per annum;
(viii) involves any directors, executive officers (as such term is defined in the Exchange Act) or five-percent stockholders of the Company or, to the Knowledge of the Company, any of its Affiliates (other than the Company) or immediate family members of any of the foregoing;
(ix) is a consulting agreement requiring the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 per annum or a collective bargaining agreement;
(x) provides for (x) “earn-outs” or similar contingent payment obligations by the Company or any of its Subsidiaries or (y) continuing indemnification obligations outside the ordinary course consistent with past practice by the Company or any of its Subsidiaries, in each case of (x) and (y) other than any such Contract with respect to which there are no further obligations of more than $250,000 under such provisions;
(xi) was entered into after January 1, 2012, or has not yet been consummated, and involves the acquisition or disposition, directly or indirectly (by merger or otherwise), of a business or capital stock or other equity interest of another Person or any assets or properties with a value of more than $250,000, excluding acquisitions or dispositions of equipment or other personal assets (other than any Vessels) in the ordinary course consistent with past practice;
(xii) (x) contains a standstill or similar provision pursuant to which the Company or any of its Subsidiaries has agreed not to acquire assets or securities of a third party, (y) contains any “non-solicitation”, “no hire” or similar provision which restricts the Company or any of its Subsidiaries from soliciting, hiring, engaging, retaining or employing such third party’s current or former employees in a manner or to an extent that would materially interfere with the business of the Company or any of its Subsidiaries or (z) contains a confidentiality obligation, except for (A) any agreement containing a confidentiality obligation entered into by the Company or any of its Subsidiaries in the ordinary course of business consistent with past practice and (B) any non-disclosure agreement entered into in connection with a potential sale of the Company or one or more of its businesses;
(xiii) prohibits the payment of dividends or distributions in respect of, or the pledging of, any equity interest of, or the issuance of guarantees by, the Company or any of its Subsidiaries;
(xiv) involves a grant to any Person of any right of first offer or right of first refusal to purchase, lease, sublease, use, possess or occupy any material assets, rights or properties of the Company or any of its Subsidiaries;
(xv) would be reasonably expected to involve aggregate payments by the Company or any of its Subsidiaries, or to the Company or any of its Subsidiaries, of more than $1,000,000 per annum, other than any ▇▇▇▇ of lading and any such Contract that may be canceled without penalty or other liability of the Company upon notice of thirty (30) days or less;
(xvi) involves any obligation to provide equity or debt financing to any Person (other than any Subsidiary of the Company that is not an Acquired Entity), or provide any guarantee or credit enhancement to, or assume any liability or obligation of, any Person (other than any Subsidiary of the Company that is not an Acquired Entity) in an amount in excess of $250,000; or
(xvii) with a Governmental Authority, other than (x) any ▇▇▇▇ of lading or other one-time shipping Contracts or (y) any non-customer Contract for services provided to the Company in the ordinary course of business consistent with past practice that is not material to the Company’s business operations. Each Contract of the type described in this Section 3.16(a) is referred to herein as a “Company Material Contract.”
(b) Each Company Material Contract is valid and binding on the Company and any of its Subsidiaries to the extent the Company or 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 and enforceable in accordance with its terms (subject to the Bankruptcy and Equity Exception). Neither the Company nor any Subsidiary of the Company is in material breach of or material default under the terms of any Company Material Contract. To the Knowledge of the Company, no other party to any Company Material Contract is in material breach of or material default under the terms of any Company Material Contract. No Event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default on the part of the Company or any of its Subsidiaries or, to the Knowledge of the Company, any other party thereto under any such Company Material Contract, nor has the Company or any of its Subsidiaries received any notice of any such material default, Event or condition.
(c) The Company has made available to Parent and Merger Sub complete and correct copies of each of the Company Material Contracts in effect as of the date hereof.
(d) Except as set forth on Section 3.11 3.16(d) of the Company Disclosure Schedule (which (i) includes any amendment, supplement or modification to any Contract listed therein and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into pursuant to the terms of other Contracts listed therein), as of the date hereofSchedule, neither the Company nor any of its Subsidiaries is a party to or bound by any of the following Contracts that are Related to the Business:
(i) any Contract with any staffing companyguarantee, temporary employee agencyperformance bond, professional employer organization bid bond or other similar company or agency;
(ii) Contract in any collective bargaining agreement or similar Contract with an employee representative or labor group representing any Business Employees;
(iii) any Contract amount relating to Indebtedness or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any of the Transferred Assets or letter of credit arrangementsthe Transferred Liabilities, surety or guaranteeing any obligation, payment or performance bonds, guarantee, support of or similar arrangements;
(iv) any (A) Contract (or group of related Contracts) relating to or regarding Intellectual Property or (B) IT Asset Contract (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee of less than $50,000 in the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregate);
(v) any Contract which prohibits the Company or by any of its Subsidiaries from competing or otherwise freely engaging in the Business as currently conducted anywhere in the world in any material respect or that otherwise restricts any activities of the Company or any of its Subsidiaries with respect to the Business as currently conducted in any material respect;
(vi) any Contract for the sale of Products or services, in each case, containing “most-favored nation” pricing terms or any exclusive dealing arrangement or any “requirements” Contract;
(vii) any Shared Contract;
(viii) any Contract with any Material Customer or Material Supplier (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditions), and any other Contract which involves the payment by or to, performance of services by or for, or the delivery of goods by or to, or capital expenditures by, the Company in excess of $750,000 in the aggregate over the shorter of: (A) the term of such Contract or (B) the 2019 calendar year;
(A) any Contract relating to ownership of or investments in any business or enterprise and (B) partnership, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar Contract; and
(x) any Contract involving a Governmental EntityAcquired Entities.
(b) Each Assumed Contract and each Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule is a legal, valid and binding obligation of the Company, and, to the Knowledge of the Company, each other party to such Contract, and is enforceable against the Company, and, to the Knowledge of the Company, each such other party in accordance with its terms subject, in each case, to the effect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and neither the Company nor, to the Knowledge of the Company, any other party to such Contract is in material default or material breach of such Contract, and, to the Knowledge of the Company, there does not exist any event, condition or omission that would constitute such a material default or material breach (whether by lapse of time or notice or both) under any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1, 2018, the Company has not received any written notice of termination or nonrenewal with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge of the Company, no other party to any such Contract intends to provide any such notice.
Appears in 2 contracts
Sources: Merger Agreement (Horizon Lines, Inc.), Merger Agreement (Matson, Inc.)
Contracts. Section 4.14 of the Company Disclosure Letter contains a true and correct list, by reference to the applicable subsection of this Section 4.14, of the following Contracts to which any Company Entity is a party or by which any Company Entity is bound or any of their respective assets or properties is bound (a) Except as collectively, the contracts required to be set forth on Section 3.11 4.14 of the Company Disclosure Schedule Letter, the “Material Contracts”):
(which (ia) includes any amendment, supplement or modification Contracts required to any Contract listed therein and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into be filed as an exhibit to the Company’s Annual Report on Form 10-K pursuant to the terms of other Contracts listed thereinItem 601(b)(2), as (4), (9) or (10) of Regulation S-K promulgated by the SEC;
(b) all selling, distribution, dealer, product or marketing Contracts or similar commission-based Contracts with third parties, all Contracts with Financial Advisors and all Advisory Contracts;
(c) any Contracts with any current, or containing ongoing obligations to or rights in favor of any former, officer, director, stockholder or Affiliate of any Company Entity;
(d) any Contracts with any labor or trade union or association or works council representing any employee of any Company Entity;
(e) any Contracts for correspondent securities clearing, payment and settlement activities;
(f) any Contracts for joint ventures or similar Contracts involving a sharing of profits or expenses, strategic alliances or partnerships;
(g) any Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by any Company Entity of any operating business or material assets or the capital stock of any other Person;
(h) any Contracts relating to the incurrence, assumption or guarantee of any Indebtedness of the date hereof, neither the Company nor Entities or imposing a Lien on any of its Subsidiaries is a party to or bound by any of the following Contracts that are Related to the Business:their respective assets;
(i) any Contract settlement or conciliation agreement with any staffing companyPerson (including any Governmental Authority) currently in effect;
(j) any Contract or series of related Contracts under which any Company Entity has made loans to any other Person, temporary employee agencyincluding loans to Financial Advisors, professional employer organization currently in effect;
(k) any Contracts providing for severance, retention, change in control or other similar company or agencypayments;
(iil) any collective bargaining agreement Contracts under which any Company Entity has ongoing obligations as of the date hereof for the employment of any individual on a full-time, part-time or similar Contract with an employee representative consulting or labor group representing any Business Employeesother basis providing annual base and bonus compensation in excess of $75,000;
(iiim) any Contract relating to Indebtedness or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any outstanding Contracts of the Transferred Assets or letter of credit arrangementsguaranty, surety or performance bondsindemnification, guaranteedirect or indirect, support or similar arrangementsby any Company Entity, other than third party Contracts entered into in the ordinary course of business consistent with past practice that contain ordinary course indemnification provisions;
(ivn) other than selling agreements for the sale and distribution of securities and other financial instruments and products entered into in the ordinary course of business consistent with past practice, any Contracts that contain covenants (including exclusive rights, covenants not to compete and non-solicit agreements) that restrain, restrict, limit or impede the ability of any Company Entity, or that, following the consummation of the transactions contemplated hereby, would restrain, restrict, limit or impede the ability of the Surviving Entity or its Affiliates, to (i) compete in any business or with any Person or in any geographic area, (ii) sell, supply or distribute any service or product (including any “most favored customer” or similar clauses), or (iii) acquire any property (tangible or intangible) from any Person;
(o) all Real Property Leases and all leases, subleases or other rental agreements under which any Company Entity is a party that call for annual lease payments in excess of $75,000 individually or are otherwise material to the operations of its business;
(p) any (A) Contract (Contracts providing for liquidated damages or group of related Contracts) relating to or regarding Intellectual Property or (B) IT Asset Contract (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee of less than $50,000 similar penalties in the aggregate or for which event of a breach that would reasonably be expected to result in a material liability of any Company Entity (or, following the Company has made less than $50,000 in customized improvements in Closing, of the aggregateSurviving Entity);
(vq) any Contracts which individually provide for payments to or from any Company Entity of $250,000 or more over any 12-month period; and
(r) any Contracts that are otherwise material to any Company Entity. True and complete copies of all Material Contracts (and true and correct summaries of any oral agreements) have been delivered or made available to Parent. Each of the Material Contracts is presently in full force and effect in all material respects in accordance with its terms, and no condition exists that, with notice or lapse of time or both, would constitute a material breach of or material default under any such Contract by any Company Entity or, to the Company’s knowledge, by any other party thereto. No other party to any of the Material Contracts has notified any Company Entity in writing that such party has any defense, setoff or counterclaim under any such Contract or has exercised any option to cancel or terminate, shorten the term of or fail to renew or extend the term of any such Contract. Each Contract to which prohibits any Company Entity is a party as of the date hereof that is a “material contract” (as such term is defined in Item 601(b)(1) of Regulation S-K of the SEC) required to be filed with the SEC by the Company or any of its Subsidiaries from competing or otherwise freely engaging in the Business as currently conducted anywhere in the world in any material respect or that otherwise restricts any activities of the Company or any of its Subsidiaries with respect to the Business as currently conducted in any material respect;
(vi) any Contract for the sale of Products or services, in each case, containing “most-favored nation” pricing terms or any exclusive dealing arrangement or any “requirements” Contract;
(vii) any Shared Contract;
(viii) any Contract with any Material Customer or Material Supplier (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent has been filed with the Company’s standard terms and conditions), and any other Contract which involves the payment SEC by or to, performance of services by or for, or the delivery of goods by or to, or capital expenditures by, the Company in excess of $750,000 accordance in the aggregate over the shorter of: (A) the term of such Contract or (B) the 2019 calendar year;
(A) any Contract relating to ownership of or investments in any business or enterprise and (B) partnership, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar Contract; and
(x) any Contract involving a Governmental Entityall material respects with applicable Law.
(b) Each Assumed Contract and each Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule is a legal, valid and binding obligation of the Company, and, to the Knowledge of the Company, each other party to such Contract, and is enforceable against the Company, and, to the Knowledge of the Company, each such other party in accordance with its terms subject, in each case, to the effect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and neither the Company nor, to the Knowledge of the Company, any other party to such Contract is in material default or material breach of such Contract, and, to the Knowledge of the Company, there does not exist any event, condition or omission that would constitute such a material default or material breach (whether by lapse of time or notice or both) under any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1, 2018, the Company has not received any written notice of termination or nonrenewal with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge of the Company, no other party to any such Contract intends to provide any such notice.
Appears in 2 contracts
Sources: Merger Agreement (RCS Capital Corp), Merger Agreement (Investors Capital Holdings LTD)
Contracts. (a) Except for Contracts filed as set forth on exhibits to the Filed Company SEC Documents, Section 3.11 3.11(a) of the Company Disclosure Schedule Letter sets forth a correct and complete list, and the Company has made available to Parent correct and complete copies, of all Contracts (which (i) includes any amendmentincluding all material amendments, supplement modifications, extensions or modification to any Contract listed therein renewals with respect thereto, but excluding all names, terms and (ii) shall not include Contracts conditions that are invoices, statements of work or purchase orders entered into pursuant to have been redacted in compliance with the terms of other Contracts listed therein), each such Contract or with applicable Legal Requirements governing the sharing of information) to which the Company or any Company Subsidiary is a party as of the date hereofof this Agreement (collectively, neither the “Company nor any of its Subsidiaries is a party to or bound by any of the following Contracts that are Related to the Business:Contracts”):
(i) required to be filed as an exhibit to any Contract with any staffing company, temporary employee agency, professional employer organization or other similar company or agencyreport of the Company filed pursuant to the Exchange Act of the type described in Item 601(b) of Regulation S-K promulgated by the SEC;
(ii) that contain a covenant restricting the ability of the Company or any collective bargaining agreement Company Subsidiary to compete in any business or similar Contract with an employee representative any Person or labor group representing in any Business Employeesgeographic area;
(iii) with any Contract relating to Indebtedness or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any Affiliate of the Transferred Assets or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangementsCompany;
(iv) any which primarily relates to (A) Contract (the granting to the Company or group any Company Subsidiary of related Contracts) relating any IP License in or to or regarding any Company Intellectual Property owned by a third party, with annual license fees of more than $50,000, or (B) IT Asset Contract (the granting by the Company or any Company Subsidiary to a third party of any IP License in or to any Company Intellectual Property, with annual license fees of more than $25,000, excluding commercially available“click-wrap” or “shrink-wrap” agreements, agreements contained in or pertaining to “off-the-shelf Software with a replacement cost shelf” Software, or an annual license fee the terms of less than $50,000 in the aggregate use or service for which the Company has made less than $50,000 in customized improvements in the aggregate)any web site;
(v) any Contract which prohibits the Company or any of its Subsidiaries from competing or otherwise freely engaging in the Business as currently conducted anywhere in the world in relating to any material respect joint venture, partnership or that otherwise restricts 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 activities Indebtedness of the Company or any of its Subsidiaries with respect Company Subsidiary is outstanding or may be incurred or pursuant to which the Business as currently conducted in any material respect;
(vi) any Contract for the sale of Products or services, in each case, containing “most-favored nation” pricing terms Company or any exclusive dealing arrangement Company Subsidiary has guaranteed any Indebtedness of any other Person (other than the Company or any “requirements” Contract;
(vii) any Shared ContractCompany Subsidiary and excluding Company trade payables arising in the ordinary course of business);
(viii) any Contract with any Material Customer or Material Supplier (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with pursuant to which the Company’s standard terms and conditions), and any Company Subsidiary or any other Contract which involves party thereto has continuing obligations, rights or interests relating to the payment by research, development, clinical trial, distribution, supply, manufacture, marketing or co-promotion of, or collaboration with respect to, performance of services by any product or for, or the delivery of goods by or to, or capital expenditures by, product candidate for which the Company or any Company Subsidiary is currently engaged in excess of $750,000 in the aggregate over the shorter of: research or development, including manufacture or supply services or Contracts with contract research organizations for clinical trials-related services; and
(ix) which are to any extent executory and relate to (A) the term disposition or acquisition of such Contract any material assets or properties, other than dispositions or acquisitions in the ordinary course of business, or (B) the 2019 calendar year;
(A) any Contract relating to ownership of or investments in any business or enterprise and (B) partnership, joint venture, co-owner, limited liability company collaboration or strategic alliance merger or other similar Contract; and
(x) any Contract involving a Governmental Entitybusiness combination transaction.
(b) Each Assumed Company Contract and each Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule is a legal, valid and binding obligation on the Company and each Company Subsidiary which is party thereto and, to the Knowledge of the Company, each other party thereto, and is in full force and effect, and the Company and each Company Subsidiary has performed all obligations required to be performed by it before the date hereof under each Company Contract and, to the Knowledge of the Company, each other party to such Contract, and is enforceable against the Company, and, to the Knowledge of the Company, each such other party in accordance with its terms subject, in each case, to the effect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and neither the Company nor, to the Knowledge of the Company, any other party to such Contract is in material default or material breach of such Contract, and, to the Knowledge of the Company, there does not exist any event, condition or omission that would constitute such a material default or material breach (whether by lapse of time or notice or both) under any Assumed Contract or any Contract disclosed or has performed all obligations required to be disclosed on Section 3.11 of performed by it before the Disclosure Schedule. Since January 1date hereof under such Company Contract, 2018except for such failures to be in compliance as would not, individually or in the aggregate, reasonably be expected to result in a material breach thereof.
(c) The Company has not received or enjoyed any written notice benefit, inducement or incentive from any Governmental Entity which will, as a result of termination this Agreement or nonrenewal with respect to any Assumed Contract the Transactions or any Contract disclosed or required to be disclosed on Section 3.11 the sale of the Disclosure Schedule and, to Real Estate or the Knowledge cessation of the Company’s business operations in the geographic area where they are currently conducted or the termination of all or substantially all Company employees, no result in any clawback, recapture, recoupment, repayment obligation, penalty, Tax or other party such liability.
(d) The redacted provisions of the copy of the Merck Agreement which has been provided to Parent for review in such redacted form do not include any such Contract intends term which would result in a material reduction of the benefits provided by the Merck Agreement to provide any such noticethe Company or Parent from the terms in the unredacted provisions of the Merck Agreement and described in the Summary of Merck Financial Related Information furnished to Parent on the date hereof.
Appears in 2 contracts
Sources: Merger Agreement (Ligand Pharmaceuticals Inc), Merger Agreement (Neurogen Corp)
Contracts. (a) Except as set forth on Section 3.11 3.11(a) of the Company Disclosure Schedule (which (i) includes any amendmentsets forth a complete and accurate list of all Company Material Contracts. As used in this Agreement, supplement or modification to any Contract listed therein and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into pursuant to the terms of other Contracts listed therein), as of the date hereof, neither the “Company nor any of its Subsidiaries is a party to or bound by any of the following Contracts that are Related to the Business:
Material Contract” means (i) any Contract agreement or contract pursuant to which the Company and its Subsidiaries is reasonably likely to spend, in the aggregate, more than $250,000 with respect to any staffing companysuch agreement or contract during the current fiscal year or during the next fiscal year, temporary employee agency, professional employer organization or other similar company or agency;
(ii) any collective bargaining non-competition or other agreement or similar Contract with an employee representative or labor group representing any Business Employees;
(iii) any Contract relating to Indebtedness or to mortgaging, pledging that prohibits or otherwise placing a Lien (other than a Permitted Lien) on restricts, in any of the Transferred Assets or letter of credit arrangementsmaterial respect, surety or performance bonds, guarantee, support or similar arrangements;
(iv) any (A) Contract (or group of related Contracts) relating to or regarding Intellectual Property or (B) IT Asset Contract (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee of less than $50,000 in the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregate);
(v) any Contract which prohibits the Company or any of its Subsidiaries from competing or otherwise freely engaging in any business material to the Business Company and its Subsidiaries, taken as currently conducted a whole, anywhere in the world in world, (iii) any material respect agreement or that otherwise restricts any activities of contract to which the Company or any of its Subsidiaries is a party involving research, development or the license of any Company Intellectual Property (other than non-exclusive licenses of Company Intellectual Property made in the Ordinary Course of Business), (iv) any agreement or contract to which the Company or any of its Subsidiaries is a party granting a right of first refusal, or right of first offer or comparable right with respect to any material Company Intellectual Property, (v) any agreement or contract to which the Company or any of its Subsidiaries is a party relating to a material joint venture, partnership or other material arrangement involving a sharing of profits, losses, costs or liabilities with another person, (vi) any agreement or contract which would be binding on an Affiliate of the Company or the Buyer or an Affiliate of the Buyer and (vii) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to the Business as currently conducted Company and its Subsidiaries filed with the SEC on or following March 7, 2013 or included in any material respect;
(vi) any Contract for the sale of Products or services, in each case, containing “most-favored nation” pricing terms or any exclusive dealing arrangement or any “requirements” Contract;
(vii) any Shared Contract;
(viii) any Contract with any Material Customer or Material Supplier (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent Exhibit List filed with the Company’s standard terms and conditions)Form 10-K filed on the SEC’s ▇▇▇▇▇ system on March 7, and any other Contract which involves the payment by or to, performance of services by or for, or the delivery of goods by or to, or capital expenditures by, the 2013. The Company in excess of $750,000 in the aggregate over the shorter of: (A) the term of such Contract or (B) the 2019 calendar year;
(A) any Contract relating to ownership of or investments in any business or enterprise and (B) partnership, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar Contract; and
(x) any Contract involving a Governmental Entity.
(b) Each Assumed Contract and each Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule is a legal, valid and binding obligation of the Company, and, has made available to the Knowledge Parent a complete and accurate copy of the Company, each other party to such Company Material Contract, . Each Company Material Contract is in full force and effect and is enforceable against the Company, and, to the Knowledge of the Company, each such other party in accordance with its terms subjectterms, in each case, subject to the effect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally Bankruptcy and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and neither Equity Exception. Neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company’s Knowledge, any other party to such any Company Material Contract is in material violation of or in material default or material breach of such Contract, and, to the Knowledge of the Company, under (nor does there does not exist any eventcondition, condition or omission that would constitute such a material default or material breach (whether by lapse which, upon the passage of time or the giving of notice or both, would cause such a violation of or default under), nor will the consummation of the Merger and the other transactions contemplated by this Agreement result in any material violation of or material default under (x) under any Assumed Contract loan or credit agreement, note, bond, mortgage or indenture to which it is a party or by which it or any Contract disclosed of its properties or required to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1, 2018, the assets is bound or (y) any Company has not received any written notice of termination or nonrenewal with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge of the Company, no other party to any such Contract intends to provide any such noticeMaterial Contract.
Appears in 2 contracts
Sources: Merger Agreement (Sonus Networks Inc), Merger Agreement (Performance Technologies Inc \De\)
Contracts. (a) Except for the Company Benefit Plans and Contracts filed as exhibits to any Company Report or set forth on in Section 3.11 3.15 of the Company Disclosure Schedule (which (i) includes any amendment, supplement or modification to any Contract listed therein and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into pursuant to the terms of other Contracts listed therein)Letter, as of the date hereof, neither the Company nor any of its Subsidiaries Company Subsidiary is a party to to, and none of their respective properties or assets is bound by any of the following categories of Contracts that are Related (each such Contract required to be filed as an exhibit to any Company Report or listed in Section 3.15 of the Business:Company Disclosure Letter, a “Company Contract”):
(i) any Contract with any staffing company, temporary employee agency, professional employer organization or other similar company or agencyrequired to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act that has not been so filed;
(ii) any collective bargaining agreement Contract to which the Company or any Company Subsidiary is a party that (1) restricts the ability of the Company or any Company Subsidiary to engage in or compete in any business in any manner that is material to the Company and the Company Subsidiaries, taken as a whole, (2) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole, or (3) provides for “exclusivity,” rights of first refusal or offer or any similar Contract with an employee representative requirement or labor group representing right in favor of any Business Employeesthird party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole;
(iii) any Contract relating (1) constituting a credit agreement, loan agreement, indenture or similar agreement for outstanding Indebtedness of the Company or any of the Company Subsidiaries in excess of $25 million, whether secured or unsecured; or (2) that requires the Company or any Company Subsidiary to Indebtedness make any advance, loan or to mortgagingcommitment therefor or provide any credit support or any capital contribution to, pledging or otherwise placing a Lien other investment in, any Person (other than a Permitted Lienthe Company) on any in excess of the Transferred Assets or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangements$25 million;
(iv) any (A1) material Contract (with respect to the creation, formation, governance or group control of related Contracts) relating to any material partnerships, joint ventures, joint ownership arrangements, strategic alliances or regarding Intellectual Property other similar arrangements with third parties or (B2) IT Asset Contract (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee of less than $50,000 in the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregate)any material Tax Equity Transaction Document;
(v) any Contract that (1) relates to the acquisition of assets (other than in the ordinary course of business) or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement with a total consideration of more than $25 million in the aggregate, (2) relates to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than $25 million in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (3) contains a put, call, right of first refusal or similar right pursuant to which prohibits the Company or any of its Subsidiaries from competing Company Subsidiary could be required to purchase or otherwise freely engaging in the Business sell, as currently conducted anywhere in the world in applicable, any material respect or that otherwise restricts any activities of the Company or any of its Subsidiaries with respect to the Business as currently conducted in any material respectforegoing;
(vi) any Contract with a term exceeding one (1) year after the date of this Agreement for future purchases, exchanges or sales of gas, oil or electric energy in excess of $50 million in the sale aggregate (other than Contracts solely between the Company and any of Products its wholly owned Subsidiaries or services, in each case, containing “most-favored nation” pricing terms or any exclusive dealing arrangement or any “requirements” Contractsolely among its wholly owned Subsidiaries);
(vii) any Shared ContractContract that otherwise limits or restricts the payment of dividends or distributions in respect of the capital stock or equity interests of the Company or any Company Subsidiary;
(viii) any Contract with entered into since January 1, 2022 that relates to the settlement (or proposed settlement) of any Material Customer pending or Material Supplier threatened proceeding (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditionsother than Regulatory Proceedings), and other than any other Contract which involves the payment settlement that would reasonably be expected to result in aggregate payments of less than $25 million in cash (net of any amount covered by insurance or to, performance of services indemnification that is reasonably expected to be received by or for, or the delivery of goods by or to, or capital expenditures by, the Company or any Company Subsidiary); or
(ix) any Contract entered into since January 1, 2022 that relates to the sale, transfer or other disposition of a business or assets by the Company or any Company Subsidiary pursuant to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of $750,000 in 25 million after the aggregate over the shorter of: (A) the term of such Contract or (B) the 2019 calendar year;
(A) any Contract relating to ownership of or investments in any business or enterprise and (B) partnership, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar Contract; and
(x) any Contract involving a Governmental Entitydate hereof.
(b) Each Assumed Except as would not have or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Company Contract and each Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule is a legalvalid, valid binding and binding legally enforceable obligation of the CompanyCompany or one of the Company Subsidiaries, as the case may be, and, to the Knowledge of the Company, each of the other party to such Contractparties thereto, and is enforceable against the Company, and, subject in all respects to the Knowledge of the CompanyBankruptcy and Equity Exceptions, (ii) each such other party in accordance with its terms subject, in each case, to the effect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and neither the Company nor, to the Knowledge of the Company, any other party to such Contract is in material default or material breach of such Contract, and, to the Knowledge full force and effect and (iii) none of the Company, there does not exist Company or any event, condition Company Subsidiary is (with or omission that would constitute such a material default without notice or material breach (whether by lapse of time or notice time, or both) in breach or default under any Assumed such Company Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1, 2018, the Company has not received any written notice of termination or nonrenewal with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge of the Company, no other party to any such Company Contract intends is (with or without notice or lapse of time, or both) in breach or default thereunder. Neither the Company nor any Company Subsidiary has received written notice of (1) any violation or default under any Company Contract or (2) any termination or threatened termination of any Company Contract, except for violations, defaults or terminations that have not had and would not reasonably be expected to provide any such noticehave, individually or in the aggregate, a Company Material Adverse Effect. The Company has made available to Parent, or have otherwise filed with the SEC, true and complete copies of each Company Contract in all material respects (including, for the avoidance of doubt, all material amendments, modifications, extensions or renewals with respect thereto).
Appears in 2 contracts
Sources: Merger Agreement (Allete Inc), Merger Agreement (Allete Inc)
Contracts. (a) Except as set forth on Section 3.11 List of Contracts. Schedule 3.11(a) of the Disclosure Schedule (which (i) includes any amendment, supplement or modification to any Contract listed therein and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into pursuant to the terms of other Contracts listed therein)accurately identifies, as of the date hereof, neither the Company nor any of its Subsidiaries is a party to or bound by any of the following Contracts that are Related to the Business:
(i) any each Company Contract with any staffing company, temporary labor union or association representing any employee agency, professional employer organization or other similar company or agencyof the Company;
(ii) any collective bargaining agreement or similar each Company Contract with an employee representative or labor group representing for the benefit of any Business Employeesofficer or director of any Acquired Company which provides for indemnification of such officer or director;
(iii) any each Company Contract relating to Indebtedness the acquisition, sale, spin-off or to mortgaging, pledging outsourcing of any Subsidiary or otherwise placing a Lien (other than a Permitted Lien) on any business unit or operations of the Transferred Assets or letter of credit arrangementsCompany since August 16, surety or performance bonds, guarantee, support or similar arrangements2016;
(iv) each Company Contract imposing any material restriction on any Acquired Company’s right or ability: (A) Contract (or group of related Contracts) relating to or regarding Intellectual Property or compete with any other Person; (B) IT Asset Contract to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person; or (excluding commercially availableC) to design, off-the-shelf Software with a replacement cost develop, deliver, use, market, distribute, license out or an annual license fee of less than $50,000 otherwise exploit any Company Product or Company Intellectual Property, anywhere in the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregate)world;
(v) each Company Contract: (A) granting exclusive rights to license, market, sell or deliver any Contract Company Product, or to exclusively supply any product or service to any Acquired Company; (B) otherwise granting any exclusive license to any Company Product or Company Intellectual Property or contemplating an exclusive relationship between any Acquired Company and any other Person; (C) under which prohibits any Acquired Company grants most favored nation terms, rights of first refusal or similar rights or terms to any Person; or (D) under which any Acquired Company grants to any other Person (1) the right to receive updates or new versions of Company Products or any of its Subsidiaries from competing new Company Products before other customers (other than beta-testing or otherwise freely engaging similar arrangements entered into in the Business as currently conducted anywhere in ordinary course of business); (2) the world in right to guaranteed or preferred placement on any material respect marketplace, software, web site or that otherwise restricts service of any activities of the Company Acquired Company; or (3) any of its Subsidiaries with respect to the Business as currently conducted in any material respectsimilar preferential rights;
(vi) any each Company Contract for the sale of any of the assets of any Acquired Company, other than in the ordinary course of business, or for the grant to any Person of any preferential rights to purchase any of the assets of any Acquired Company;
(vii) each Company Contract evidencing Indebtedness in an amount in excess of $500,000;
(viii) each Company Contract with any customer involving annual payments in excess of $750,000;
(ix) each Company Contract involving annual payments in excess of $100,000 that provides to another Person the right to purchase, license or otherwise acquire an unlimited quantity of or unlimited usage of Company Products (as compared to the Acquired Companies’ ordinary pricing metrics for such Company Products) for a fixed aggregate price or servicesat no additional charge (including through “enterprise wide,” “unlimited use” or “all you can eat” provisions);
(x) each Company Contract with any Related Party (other than offer letters, employment agreements and option agreements entered into in the ordinary course of business); and
(xi) each Company Contract pursuant to which an Acquired Company has entered into a HIPAA Business Associate Agreement with another Person or otherwise acknowledges or agrees that it is a HIPAA Business Associate of another Person, in each case, containing “most-favored nation” pricing terms or any exclusive dealing arrangement or any “requirements” Contract;
(vii) any Shared Contract;
(viii) any Contract with any Material Customer or Material Supplier (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditions), and any other Contract which involves the payment by or to, performance of services by or for, or the delivery of goods by or to, or capital expenditures by, the Company involving annual payments in excess of $750,000 in the aggregate over the shorter of: (A) the term of such Contract or (B) the 2019 calendar year;
(A) any Contract relating to ownership of or investments in any business or enterprise and (B) partnership, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar Contract; and
(x) any Contract involving a Governmental Entity150,000.
(b) Each Assumed Contract and each Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule is a legal, valid and binding obligation of the Company, and, to the Knowledge of the Company, each other party to such Contract, and is enforceable against the Company, and, to the Knowledge of the Company, each such other party in accordance with its terms subject, in each case, to the effect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and neither the Company nor, to the Knowledge of the Company, any other party to such Contract is in material default or material breach of such Contract, and, to the Knowledge of the Company, there does not exist any event, condition or omission that would constitute such a material default or material breach (whether by lapse of time or notice or both) under any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1, 2018, the Company has not received any written notice of termination or nonrenewal with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge of the Company, no other party to any such Contract intends to provide any such notice.
Appears in 1 contract
Contracts. (a) Except as set forth on Section 3.11 3.11(a)(i) of the Company Disclosure Schedule (which (i) includes any amendment, supplement or modification to any Contract listed therein sets forth a correct and (ii) shall not include Contracts that are invoices, statements complete list of work or purchase orders entered into pursuant to the terms of other Contracts listed therein), as each of the date hereof, neither Contracts with the Material Suppliers (including verbal agreements which shall be identified as such in Section 3.11(a)(i) of the Company nor Disclosure Schedule) to which the Company or any of its Subsidiaries is a party to or bound by which the Company, any of its Subsidiaries or any of their respective assets or properties are bound (and any amendments, supplements and modifications thereto) (collectively, the following Contracts that are Related “Material Supplier Contracts”). Except as set forth on Section 3.11(a)(ii) or Section 3.11(b)(xix) of the Company Disclosure Schedule, there is no Material Supplier Contract, or to the Business:
(i) any Contract with any staffing company, temporary employee agency, professional employer organization or other similar company or agency;
(ii) any collective bargaining agreement or similar Contract with an employee representative or labor group representing any Business Employees;
(iii) any Contract relating to Indebtedness or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any Knowledge of the Transferred Assets or letter of credit arrangementsCompany, surety or performance bonds, guarantee, support or similar arrangements;
(iv) any (A) other Contract (or group of related Contractsincluding any binding purchase order) relating to or regarding Intellectual Property or (B) IT Asset Contract (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee of less than $50,000 in the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregate);
(v) any Contract which prohibits the Company or any of its Subsidiaries from competing is a party or by which the Company, any of its Subsidiaries or any of their respective assets or properties are bound, that has an aggregate future liability by the Company or any of its Subsidiaries to any Person in excess of $375,000 per year and that is not terminable by the Company or any of its Subsidiaries by notice of not more than 30 days for a cost (including any premium, penalty, inventory purchase obligation or any other financial obligation) of not more than $375,000.
(b) Section 3.11(b) of the Company Disclosure Schedule sets forth, by category, a correct and complete list of each of the following Contracts (including verbal agreements which shall be identified as such in Section 3.11(b) of the Company Disclosure Schedule) 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 assets or properties are bound (and any amendments, supplements and modifications thereto):
(i) collective bargaining agreement or other Contract with any labor organization, union or association;
(ii) Contract including any covenant not to compete or any other restriction that limits the freedom of the Company or any of its Subsidiaries to engage in any line of business or in any geographic area or location (excluding any radius based restrictions in any Leases), compete with any person, solicit or hire any person or that otherwise freely engaging in has the Business as currently conducted anywhere in the world effect of restricting in any material respect the Company, any of its Subsidiaries or their respective Representatives (acting on behalf of the Company or any of its Subsidiaries) from the development, manufacture, marketing or distribution of the products and services of the Company or any of its Subsidiaries, including non-competition non-solicitation and standstill obligations, exclusivity rights and “most favored nation” provisions;
(iii) Contract that involves a license to (or a requirement to license to) or from a third person, or giving (or a requirement to give) or receiving a covenant not to ▇▇▇ or immunity to or from any third person, as to any Intellectual Property, including any Company Intellectual Property, or otherwise restricts relating to the licensing, acquisition, development, disposition, appropriation, exploitation or the nondisclosure of any activities Intellectual Property, other than non-exclusive inbound license agreements relating to commercially available off the shelf Software licensed to the Company in object code form;
(iv) Contract between the Company or its Subsidiaries, on the one hand, and (A) any Seller or any Related Person of any Seller (other than the Company or any of its Subsidiaries) or (B) any officer, director, manager, or employee of the Company or any of its Subsidiaries, any Seller or any Related Person of any Seller, on the other hand;
(v) lease (including the Leases), sublease or similar Contract with any Person under which the Company or any of its Subsidiaries (A) is a lessee, sublessee, licensee, occupant or user of any property or premise or (B) is a lessor, sublessor or licensor of, or makes available for use to any Person, (1) any Company Property or (2) any portion of any premises otherwise occupied or used by the Company or any of its Subsidiaries in the current conduct of its business;
(vi) lease, sublease or similar Contract with any Person under which (A) the Company or any of its Subsidiaries is lessee of, or holds or uses, any machinery, equipment, vehicle or other tangible personal property owned by any Person or (B) the Company or any of its Subsidiaries is a lessor or sublessor of, or makes available for use by any Person, any tangible personal property owned or leased by the Company or any of its Subsidiaries in the operations of its business, in any such case under (A) or (B), that is not terminable by the Company or any of its Subsidiaries by notice of not more than 60 days for a cost (including any premium or penalty) of more than $250,000;
(vii) Contract under which the Company or any of its Subsidiaries has borrowed any money from, or issued any note, bond, debenture or other evidence of Indebtedness to, any Person (other than the Company or any of its Subsidiaries) or any other note, bond or debenture (other than in favor of the Company or any of its Subsidiaries) to the extent outstanding as of the date of this Agreement;
(viii) Contract (including any so-called take-or-pay or keepwell agreements) under which (A) any Person including the Company or any of its Subsidiaries has directly or indirectly guaranteed Indebtedness, liabilities or obligations of the Company or any of its Subsidiaries or (B) the Company or any of its Subsidiaries has directly or indirectly guaranteed Indebtedness, liabilities or obligations of any Person, including the Company or any of its Subsidiaries (in each case other than endorsements for the purpose of collection in the Ordinary Course of Business, in each case, to the extent outstanding as of the date of this Agreement);
(ix) Contract under which the Company or any of its Subsidiaries has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or any of its Subsidiaries), other than advances to employees for travel and other business expenses in the Ordinary Course of Business;
(x) Contract relating to the mortgaging or pledging of, or otherwise granting a Lien upon any Company Property or any other asset or securities of the Company or any of its Subsidiaries other than a Permitted Lien;
(xi) (A) any indemnification agreement (i.e., an agreement with the primary purpose of providing indemnification to one or more counterparties); or (B) any other Contract (x) providing for indemnification by the Company or any of its Subsidiaries of one or more counterparties and (y) entered into outside the Ordinary Course of Business;
(xii) a power of attorney granted by the Company or any of its Subsidiaries with respect to the Business as currently conducted in operation of the business of the Company or any material respectof its Subsidiaries;
(vixiii) a confidentiality or nondisclosure Contract between the Company or any of its Subsidiaries, on the one hand, and any other Person, on the other hand, which Contract was not made in the Ordinary Course of Business;
(xiv) a Contract (including a binding sales order or other Contract) involving the obligation of the Company or any of its Subsidiaries to deliver products or services for payment of more than $250,000 or extending for a term more than 365 days from the Closing Date (unless terminable without payment or penalty upon no more than 60 days’ notice);
(xv) a Contract for the sale of Products or services, in each case, containing “most-favored nation” pricing terms any material asset of the Company or any exclusive dealing arrangement of its Subsidiaries or the grant of any preferential rights to purchase any such material asset, other than the sale of inventory by the Company or any “requirements” of its Subsidiaries in the Ordinary Course of Business;
(xvi) a currency exchange, interest rate exchange, commodity exchange or similar Contract;
(viixvii) a Contract for any Shared Contractjoint venture, partnership or similar arrangement, or any Contract involving a sharing of profits, losses, costs, or liabilities by the Company or any of its Subsidiaries with any other Person;
(viiixviii) a Contract granting to any Person any options, rights of first refusal, first offer or co-sale or similar preferential rights to purchase any material assets, properties or securities of the Company or any of its Subsidiaries;
(xix) a Contract with requiring the Company or any Material Customer of its Subsidiaries to purchase all or Material Supplier (excluding ordinary course task orders substantially all of its requirements for a particular product or service estimates containing terms and conditions materially consistent with from a vendor, supplier or subcontractor or to make periodic minimum purchases of a particular product or service from a vendor, supplier or subcontractor;
(xx) a Contract involving the Company’s standard terms and conditions), and settlement of any other Contract which involves the payment by Proceeding or to, performance of services by or for, or the delivery of goods by or to, or capital expenditures by, the Company in excess of $750,000 in the aggregate over the shorter of: threatened Proceeding (A) that (i) involves payments by the term Company or any of such Contract its Subsidiaries after the Closing Date or (ii) imposes monitoring or reporting obligations on the Company or any of its Subsidiaries to any other Person after the Closing Date or (B) with respect to which conditions precedent to the 2019 calendar yearsettlement thereof have not been satisfied as of the Closing Date;
(Axxi) any a Contract or other arrangement relating to ownership of or investments in any business acquisition or enterprise and disposition by the Company or any of its Subsidiaries (Bwhether by merger, asset sale, equity sale, option exercise or otherwise);
(xxii) partnershipa Contract by which the Company or any of its Subsidiaries has potential liability in respect of any purchase price adjustment, joint ventureearn-out or contingent consideration price;
(xxiii) a Contract with any Governmental Entity;
(xxiv) a Contract with employees, co-owneragents, limited liability company collaboration consultants or strategic alliance advisors not cancellable at will without cost or other similar Contractliability by reason of such termination; andor
(xxxv) any a direct Contract involving with a Governmental Entitygeneral contractor or a design professional for Company Property under development in the Ordinary Course of Business and identified on Section 3.08(a) of the Company Disclosure Schedule.
(bc) Each Assumed Contract and each Contract disclosed All Contracts set forth or required to be disclosed on set forth in Section 3.11 3.11(a) and Section 3.11(b) of the Company Disclosure Schedule is a legal(the “Company Contracts”) are valid, valid binding and binding obligation of in full force and effect and are enforceable by the Company, and, to the Knowledge of the Company, each other party to such Contract, and is enforceable against the Company, and, to the Knowledge of the Company, each such other party Company in accordance with its terms subjecttheir terms, in each case, to the effect of any except as limited by applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting the enforcement of creditors’ rights generally and subject, as or by general equitable principles. The Company has performed all material obligations required to enforceability, to be performed by it under the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law)Company Contracts, and neither the Company nor, to the Knowledge of the Company, any other party to such Contract it is in material default not (with or material breach of such Contract, and, to the Knowledge of the Company, there does not exist any event, condition without notice or omission that would constitute such a material default or material breach (whether by lapse of time or notice time, or both) under in breach or default in any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1, 2018, the Company has not received any written notice of termination or nonrenewal with material respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule thereunder and, to the Knowledge of the Company, no other party to any Company Contract is (with or without notice or lapse of time, or both) in breach or default in any material respect thereunder. In the past three years, the Company has not received written notice of any violation of, or failure to comply with, any term or requirement of any Company Contract. The Company has not received any written notice of the intention of any party to terminate or cancel any Company Contract. Accurate and complete copies of all Company Contracts, together with all amendments, supplements and modifications thereto, have been made available to Purchaser, except as set forth on Section 3.11(c) of the Company Disclosure Schedule. There are no ongoing renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to the Company under any Company Contracts with any Person, and no such Contract intends Person has made written demand to provide any the Company for such noticerenegotiation.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Cheesecake Factory Inc)
Contracts. (a) Except as set forth on Section 3.11 3.17 of the Seller’s Disclosure Schedule (which (i) includes any amendment, supplement or modification to any Contract listed therein and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into pursuant to the terms of other Contracts listed therein)contains a complete list, as of the date hereof, neither the Company nor of all Contracts (other than Business Plans and other than any Material Contracts that are Excluded Assets) to which any of its Subsidiaries the Transferred PMD Companies or any PMD Asset Seller (in respect of the PMD Business) is a party or by which any of the Transferred PMD Companies or any PMD Asset Seller (in respect of the PMD Business) or their Affiliates is bound that predominately relates to or bound by the PMD Business, and that fall within any of the following Contracts that are Related categories (the “Material Contracts”):
(a) each material Contract with a Key Customer (other than purchase orders, sales orders, or invoices under such contracts entered into in the ordinary course of business);
(b) each material Contract with a Key Supplier (other than purchase orders, sales orders, or invoices under such contracts entered into in the ordinary course of business);
(c) each Contract which limits the ability of a Transferred PMD Company or a PMD Asset Seller (in respect of the PMD Business) to compete in any material respect with any Person generally or in any geographic area;
(d) each Contract material to the PMD Business relating to Intellectual Property, including any joint development agreement, research agreement or customer formulation agreement, other than non-exclusive licenses to “off the shelf” software;
(e) any joint venture, partnership or other similar agreement;
(f) each Contract relating to the acquisition or disposition of any business (whether by merger, sale of stock, sale of assets or otherwise) under which, after the Closing, the PMD Business will have a material obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation, or any other contingent obligation (but excluding indemnity obligations with respect to any Retained Liabilities);
(g) each Material Lease;
(h) each Contract containing any capital expenditure obligations of the Transferred PMD Companies or the PMD Asset Sellers (in respect of the PMD Business:) after the date hereof in excess of $20,000,000; and
(i) each Contract evidencing Indebtedness, or under which any Contract with any staffing company, temporary employee agency, professional employer organization or other similar company or agency;
(ii) any collective bargaining agreement or similar Contract with an employee representative or labor group representing any Business Employees;
(iii) any Contract relating to Indebtedness or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any of the Transferred Assets or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangements;
(iv) any (A) Contract (or group of related Contracts) relating to or regarding Intellectual Property or (B) IT Asset Contract (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee of less than $50,000 in the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregate);
(v) any Contract which prohibits the PMD Company or any of its Subsidiaries from competing or otherwise freely engaging PMD Asset Seller (in the Business as currently conducted anywhere in the world in any material respect or that otherwise restricts any activities of the PMD Business) has issued any note, bond, indenture, mortgage, security interest or other evidence of Indebtedness, or has directly or indirectly guaranteed Indebtedness of any Person. Each such Material Contract is valid, binding and enforceable against the Transferred PMD Company or any of its Subsidiaries with respect to the Business as currently conducted in any material respect;
(vi) any Contract for the sale of Products or services, in each case, containing “most-favored nation” pricing terms or any exclusive dealing arrangement or any “requirements” Contract;
(vii) any Shared Contract;
(viii) any Contract with any Material Customer or Material Supplier (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditions), and any other Contract which involves the payment by or to, performance of services by or for, or the delivery of goods by or to, or capital expenditures by, the Company in excess of $750,000 in the aggregate over the shorter of: (A) the term of such Contract or (B) the 2019 calendar year;
(A) any Contract relating to ownership of or investments in any business or enterprise and (B) partnership, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar Contract; and
(x) any Contract involving a Governmental Entity.
(b) Each Assumed Contract and each Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule is a legal, valid and binding obligation of the Company, PMD Asset Seller party thereto and, to the Knowledge of APD, the Company, each other party to such Contract, and is enforceable against the Company, and, to the Knowledge of the Company, each such other party parties thereto in accordance with its terms subjectterms, in each case, to the effect of any applicable Laws relating subject to bankruptcy, insolvency, fraudulent transfer, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or moratorium and similar Laws of general applicability relating to or affecting creditors’ rights generally and subjectto general equity principles, as and is in full force and effect, except where such failure to enforceabilitybe so valid, binding and enforceable or in full force and effect would not, individually or in the aggregate, reasonably be expected to be materially adverse to the effect PMD Business. None of general principles the Transferred PMD Companies or PMD Asset Sellers (in respect of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and neither the Company nor, PMD Business) nor to the Knowledge of the CompanyAPD, any other party to such Contract a Material Contract, is in material default under or in material breach of any such Contract, Material Contract (other than agreements between or among any of the Transferred PMD Companies) and, to the Knowledge of the CompanyAPD, there does not exist any event, condition no event has occurred that with notice or omission that lapse of time or both would constitute such a material default breach or material breach default (whether by lapse of time or notice or both) under any Assumed ). Each Material Contract or any Contract disclosed or required to be disclosed on Section 3.11 (and all amendments, supplements and modifications that are as in effect as of the Disclosure Schedule. Since January 1, 2018, the Company has not received any written notice date of termination or nonrenewal this Agreement with respect thereto) has been made available to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge of the Company, no other party to any such Contract intends to provide any such noticeBuyer.
Appears in 1 contract
Sources: Purchase Agreement (Air Products & Chemicals Inc /De/)
Contracts. (a) Except as set forth on Section 3.11 As of the Disclosure Schedule (which (i) includes date of this Agreement, none of the Company or any amendment, supplement or modification Company Subsidiary is a party to any Contract listed therein and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the terms Securities Act (a “Filed Company Contract”) that has not been so filed.
(b) Section 5.14(b) of other Contracts listed therein)the Company Disclosure Letter sets forth, as of the date hereofof this Agreement, neither a true and complete list, and the Company nor any of its Subsidiaries is a party has made available to or bound by any of the following Contracts that are Related to the BusinessParent true and complete copies, of:
(i) each Contract to which the Company or any Contract with of the Company Subsidiaries is a party that purports to restrict in any staffing companymaterial respect the ability of the Company or any Company Subsidiaries to (A) compete in any line of business or geographic area or (B) solicit any customers or individuals for employment, temporary employee agencyin each case that is material to the Company and the Company Subsidiaries, professional employer organization or other similar company or agencytaken as a whole;
(ii) each Contract that relates to the creation, incurrence, assumption, security of, or guarantee of Indebtedness in excess of $100,000 (other than any Indebtedness described in clause (iii) of the definition of Indebtedness) of the Company or any of the Company Subsidiaries that is outstanding or may be incurred by its terms, other than any such agreement solely between or among the Company and the wholly owned Company Subsidiaries or between or among wholly owned Company Subsidiaries;
(iii) each partnership, joint venture, limited liability agreement or similar Contract to which the Company or any of the Company Subsidiaries is a party relating to the formation, creation, operation, management or control of any partnership or joint venture or to the ownership of any equity interest in any entity or business enterprise other than the Company Subsidiaries or securities held for investment by the Company or the Company Subsidiaries in the Ordinary Course of Business;
(iv) each material Contract between the Company or any Company Subsidiary, on the one hand, and, on the other hand, (A) any present executive, officer or director of either the Company or any of the Company Subsidiaries or (B) to the Knowledge of the Company, any affiliate of any such executive, officer or director (other than the Company or any of the Company Subsidiaries), in each case, other than those Contracts filed as exhibits (including exhibits incorporated by reference) to any Company SEC Documents and other than any Company Benefit Plan;
(v) any labor, collective bargaining agreement or similar Contract agreement with an employee representative any collective bargaining representative, works council or labor industry trade group representing any Business Employeesto which the Company or a Company Subsidiary is party;
(iiivi) any each Contract relating to Indebtedness the disposition or to mortgaging, pledging acquisition by the Company or otherwise placing a Lien (other than a Permitted Lien) on any of the Transferred Assets Company Subsidiaries of any material business or letter any material amount of credit arrangements, surety assets (x) with material obligations remaining to be performed or performance bonds, guarantee, support or similar arrangementsmaterial liabilities continuing after the date of this Agreement and (y) involving consideration in excess of $250,000;
(ivvii) each Contract pursuant to which the Company or any of the Company Subsidiaries has entered into in the six (6) years prior to the date hereof (or prior thereto, if the Company or any Company Subsidiary has ongoing obligations in respect thereof or if the Company or any Company Subsidiary granted to any Person an exclusive license with respect to any Company Intellectual Property) that (A) Contract (grants any Patent license to any Person or group any other exclusive or material license to any Person to use any of related Contracts) relating to or regarding the Company Intellectual Property or (B) IT Asset receives any material license from any Person to use the Intellectual Property Rights of a third party, in each case, excluding any Contract (excluding commercially available, offpursuant to which the Company or any Company Subsidiary receives any license to use any Off-the-shelf Shelf Software with a replacement cost or an annual license fee of less than $50,000 receives any non-exclusive licenses entered into in the aggregate Ordinary Course of Business;
(viii) each material research or for development agreement (whether related to singular or joint research or development) to which the Company has made less than $50,000 in customized improvements in the aggregate)or a Company Subsidiary is party;
(vix) each Contract with a third party to which the Company or any Company Subsidiary is a party that would reasonably be expected to involve aggregate payments by the Company or such Company Subsidiary during calendar year 2019 or any subsequent twelve (12)-month period of at least $250,000;
(x) each Contract with a third party to which the Company or any Company Subsidiary is a party that would reasonably be expected to involve aggregate payments to the Company or such Company Subsidiary during calendar year 2019 of at least $125,000;
(xi) any Contract pursuant to which prohibits the Company or any Company Subsidiary grants any third party any “most favored nation” or similar most favored customer status, or rights of first or last offer, negotiation or refusal, in each case, that cannot be cancelled by the Company or any Company Subsidiary without penalty upon less than ninety (90) days’ notice and which is material to the Company and the Company Subsidiaries, taken as a whole;
(xii) any Contract that requires or otherwise relates to any future capital expenditures by the Company or any of its the Company Subsidiaries from competing in excess of $125,000 individually or otherwise freely engaging $250,000 in the Business as currently conducted anywhere in the world in aggregate;
(xiii) any material respect or that otherwise restricts any activities of Contract between the Company or any Company Subsidiary and a U.S. federal or state Governmental Entity of its Subsidiaries with respect which the Company has Knowledge, pursuant to which the Business as currently conducted in Company or any material respectCompany Subsidiary provides any goods or services;
(vi) any Contract for the sale of Products or services, in each case, containing “most-favored nation” pricing terms or any exclusive dealing arrangement or any “requirements” Contract;
(vii) any Shared Contract;
(viiixiv) any Contract with any Material Customer a third party that provides for indemnification or Material Supplier (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditions), and any other Contract which involves the payment assumption of liability by or to, performance of services by or for, or the delivery of goods by or to, or capital expenditures by, the Company in excess of $750,000 in the or any Company Subsidiary without limit as to aggregate over the shorter of: (A) the term of amount but excluding any such Contract with resellers, customers, licensees or (B) the 2019 calendar yearsuppliers in their capacity as such;
(Axv) any Contract relating to ownership which the Company or a Company Subsidiary is party providing for the payment, increase or vesting of any material benefits or investments compensation in connections with the transactions contemplated hereby;
(xvi) any business hedging, swap, derivative or enterprise and (B) partnership, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar Contract; and
(xxvii) any Contract involving that involves any resolution or settlement of any actual or threatened suit, action or proceeding (x) with a Governmental Entityvalue in excess of $250,000 individually, (y) that provides for any injunctive or other non-monetary relief or (z) pursuant to which the Company or any of the Company Subsidiaries have any other continuing material obligations, liabilities or restrictions. Each Contract described in this Section 5.14(b) and each Filed Company Contract, in each case, is referred to herein as a “Material Contract”.
(bc) Each Assumed Except for matters which, individually or in the aggregate, would not have a Company Material Adverse Effect, (i) each Material Contract is in full force and each Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule is effect and a legalvalid, valid binding and binding legally enforceable obligation of the CompanyCompany or one of the Company Subsidiaries, as the case may be, and, to the Knowledge of the Company, each other party to such Contract, and is enforceable against the Company, and, to the Knowledge of the Companyother parties thereto, each such other party in accordance with its terms subjectexcept, in each case, to the effect of any applicable Laws relating to as enforcement may be limited by bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, reorganization or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of by general principles of equity and (regardless ii) none of whether such enforceability is considered in a proceeding in equity or at law), and neither the Company nor, to the Knowledge or any of the Company, any other party to such Contract Company Subsidiaries is in material default (with or material breach of such Contract, and, to the Knowledge of the Company, there does not exist any event, condition without notice or omission that would constitute such a material default or material breach (whether by lapse of time or notice time, or both) in breach or default under any Assumed such Material Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1, 2018, the Company has not received any written notice of termination or nonrenewal with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge of the Company, no other party to any such Material Contract intends is (with or without notice or lapse of time, or both) in breach or default thereunder, except, in the case of clause (i), with respect to provide any such noticeMaterial Contract which expires by its terms (as in effect as of the date hereof). As of the date of this Agreement, neither the Company nor any of the Company Subsidiaries has received any written notice regarding any actual or alleged material violation or breach of or material default under, or intention to cancel or materially modify to the detriment of the Company or the Company Subsidiaries, any Material Contract, except in each case as would not, individually or in the aggregate, have a Company Material Adverse Effect.
Appears in 1 contract
Contracts. (a) Except as set forth on Section 3.11 Part 3.10(a) of the Disclosure Schedule (which (i) includes any amendment, supplement or modification to any Contract listed therein sets forth a true and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into pursuant to the terms of other Contracts listed therein)complete list, as of the date hereofAgreement Date, neither the Company nor any of its Subsidiaries is a party to or bound by any all of the following Contracts that are Related to which the BusinessCompany or any Company Subsidiary is a party or by which any of them is bound:
(i) any Company Contract with any staffing company, temporary employee agency, professional employer organization or other similar company or agencythat is required by the rules and regulations of the SEC to be filed as an exhibit to the Company SEC Documents;
(ii) any collective bargaining agreement Company Contract in connection with which or similar Contract with an employee representative pursuant to which the Company or labor group representing any Business EmployeesCompany Subsidiary is committed to spend, in the aggregate, more than $2,000,000 during the current fiscal year;
(iii) any Company Contract relating to Indebtedness that generated more than $2,000,000 in revenues for the Company or to mortgagingany Company Subsidiary in the fiscal year ended December 31, pledging or otherwise placing a Lien (other than a Permitted Lien) on any of the Transferred Assets or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangements2016;
(iv) any Company Contract concerning the license, covenant not to ▇▇▇, or other waiver or grant of rights in Intellectual Property Rights (whether the Company or any of the Company Subsidiaries is the grantor or grantee of such rights), or the development or modification of any Intellectual Property, other than (A) Contract (licenses to COTS or group nonexclusive to customers in the ordinary course of related Contracts) relating to or regarding Intellectual Property or business, (B) IT Asset Contract (excluding commercially availableContracts entered into with employees, off-the-shelf Software with a replacement cost or an annual license fee of less than $50,000 contractors, consultants and vendors in the aggregate or for ordinary course of business and under which the Company or any Company Subsidiary has made less than $50,000 in customized improvements not granted or received any material Intellectual Property Rights, and (C) non-disclosure and confidentiality agreements entered into in the aggregate)ordinary course of business;
(v) any Company Contract which prohibits the Company or any of its Subsidiaries from competing or otherwise freely engaging in the Business as currently conducted anywhere in the world in any material respect or that otherwise restricts any activities of the Company or any of its Subsidiaries with respect to the Business as currently conducted in any material respectevidencing Indebtedness;
(vi) any Company Contract for evidencing any obligations of the sale of Products or services, in each case, containing “most-favored nation” pricing terms Company or any exclusive dealing arrangement Company Subsidiary with respect to the issuance, sale, repurchase or redemption of any equity securities of the Company or any “requirements” ContractCompany Subsidiary;
(vii) any Shared ContractLease;
(viii) any collective bargaining agreement or other Company Contract with any Material Customer labor union, labor organization, works council or Material Supplier group of employees;
(excluding ordinary course task orders ix) any Company Employee Agreement or service estimates containing terms Company Contract for the employment or engagement of any Person on a full-time or part-time basis, including directors, employees (temporary and conditions materially consistent with the Company’s standard terms seasonal) and conditions)independent contractors, and any other Contract which involves the payment by or toin each case, performance of services by or for, or the delivery of goods by or to, or capital expenditures by, the Company at annual compensation in excess of $750,000 in 150,000; Table of Contents (x) any lease of personal property under which the aggregate over Company or any Company Subsidiary is the shorter of: (A) the term lessee and is obligated to make payments of such Contract $50,000 or (B) the 2019 calendar yearmore per annum;
(Axi) any Company Contract relating to ownership any resolution or settlement of any actual or investments threatened Legal Proceeding involving the Company or any Company Subsidiary that imposes material continuing obligations upon the Company or any Company Subsidiary;
(xii) any Company Contract relating to the acquisition or disposition of any business, properties or assets, for consideration in excess of $500,000 by the Company or any business Company Subsidiary or, to the extent still in force, with respect to which the Company or enterprise and any Company Subsidiary has material continuing obligations;
(Bxiii) any Company Contract creating or relating to any material partnership, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar Contractjoint development agreement involving material continuing obligations;
(xiv) any Company Contract that constitutes an Affiliate Transaction; and
(xxv) any Company Contract involving that: (A) limits the freedom of the Company or any Company Subsidiary to engage in any line of business, acquire any entity or compete with any Person or in any market or geographical area; or (B) contains a Governmental Entitygrant of exclusivity or “most favored nation” terms by the Company or any Company Subsidiaries to any other Person.
(b) Each Assumed Contract and each Contract Except as disclosed or required to be disclosed on Section 3.11 in Part 3.10(b) of the Disclosure Schedule, all Contracts that are set forth in Part 3.10(a) of the Disclosure Schedule is (each a legal, “Material Contract”) are valid and binding obligation of the Company, and, to the Knowledge of the Company, each other party to such Contractin full force and effect, and is are enforceable against the Company, and, to the Knowledge of the Company, each such other party in accordance with its terms subjecttheir respective terms, in each case, to the effect subject to: (i) Laws of any applicable Laws general application relating to bankruptcy, reorganizationinsolvency and the relief of debtors; and (ii) rules of Law governing specific performance, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally injunctive relief and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and neither the Company nor, to the Knowledge of the Company, any other party to such Contract is in material default or material breach of such Contract, and, to the Knowledge of the Company, there does not exist any event, condition or omission that would constitute such a material default or material breach (whether by lapse of time or notice or both) under any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1, 2018, the Company has not received any written notice of termination or nonrenewal with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge of the Company, no other party to any such Contract intends to provide any such noticeequitable remedies.
Appears in 1 contract
Sources: Merger Agreement (NCI, Inc.)
Contracts. (a) Except as set Set forth on in Section 3.11 3.14(a) of the Company Disclosure Schedule (which (i) includes any amendment, supplement or modification to any Contract listed therein and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into pursuant to the terms of other Contracts listed therein)is a list, as of the date hereofof this Agreement, neither of (i) 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 nor with the SEC on the date of this Agreement, and (ii) each of the following to which the Company or any of its Subsidiaries is a party to or bound by any of the following Contracts that are Related to the Businessotherwise bound:
(iA) any Contract with any staffing company, temporary employee agency, professional employer organization or other similar company or agency;
(ii) any collective bargaining agreement or similar Contract with an employee representative or labor group representing any Business Employees;
(iii) any Contract relating to Indebtedness or to mortgaging, pledging or otherwise placing that contains a Lien (other than a Permitted Lien) on any of the Transferred Assets or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangements;
(iv) any (A) Contract (or group of related Contracts) relating to or regarding Intellectual Property or (B) IT Asset Contract (excluding commercially available, offnon-the-shelf Software with a replacement cost or an annual license fee of less than $50,000 in the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregate);
(v) any Contract which prohibits the Company or any of its Subsidiaries from competing or otherwise freely engaging in the Business as currently conducted anywhere in the world in any material respect competition provision or that otherwise restricts any activities purports to limit, curtail or restrict the ability of the Company or any of its Subsidiaries with respect (or, after the Effective Time, Parent or any of its Affiliates) to the Business as currently conducted solicit customers, compete in any material respect;geographic area or line of business or restrict the Persons to whom the Company or any of its Subsidiaries may sell products or deliver services,
(viB) any Contract for the sale of Products or services, in each case, containing that grants any third party “most-most favored nation” pricing terms status or the exclusive right to deal with the Company or any exclusive dealing arrangement or any “requirements” Contract;of its Subsidiaries,
(viiC) any Shared Contract;partnership or joint venture agreement,
(viiiD) any Government Contract,
(E) any Contract with any Material Customer director or Material Supplier officer of the Company or any of its Subsidiaries or any Affiliate of the Company (except for Contracts listed on Section 3.14(a)(J) of the Company Disclosure Schedule),
(F) any loan or credit agreement, mortgage, indenture, note or other Contract or instrument evidencing Indebtedness of the Company or any of its Subsidiaries,
(G) any mortgage, pledge, security agreement, deed of trust or other Contract granting a Lien on any property or assets of the Company or any of its Subsidiaries,
(H) any customer or client Contract that involves total consideration of in excess of $50,000 annually,
(I) any Contract pursuant to which the Company or any of its Subsidiaries (x) is granted a license to use any Company Intellectual Property from third parties (excluding Contracts pertaining to unmodified, commercially available Software pursuant to a click-wrap, shrink-wrap or similar agreement and which is licensed to the Company or the relevant Subsidiary that is not material to the functionality of any currently licensed or supported Company Products) or (y) has granted a license to any Person under any Intellectual Property (other than nonexclusive object code licenses granted to customers in the ordinary course task orders or service estimates containing terms of business of the Company and conditions materially its Subsidiaries consistent with the Company’s standard terms and conditionspast practice), and ,
(J) any other Contract which is an employment agreement with an executive officer or employee with an annual base salary of $100,000 or more or which includes a change-in-control provision,
(K) any Contract which is a collective bargaining agreement or similar agreement with any labor union or association representing employees of the Company or any of its Subsidiaries,
(L) any Contract which is a lease, whether as a lessor or lessee, with respect to any real property that involves the payment by payments to or to, performance of services by or for, or the delivery of goods by or to, or capital expenditures by, from the Company in excess of $750,000 in the aggregate over the shorter of: (A) the term of such Contract or (B) the 2019 calendar year;50,000 annually,
(AM) any Contract which is an agreement for any development, marketing, resale, distribution or similar arrangement relating to ownership any Company Product involving payments to or from the Company in excess of or investments in any business or enterprise and (B) partnership, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar Contract; and$50,000,
(xN) any Contract involving a Governmental Entity.
(b) Each Assumed Contract and each Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule which is a legalcontract, valid and binding obligation agreement or arrangement (other than pursuant to Company Charter Documents) providing for indemnification by the Company of any officer, director or employee of the Company, and(O) any Contract other than endorsements of checks, which is a contract, agreement or arrangement pursuant to which the Knowledge Company or any of the Companyits Subsidiaries has any obligations or liabilities as guarantor, each other party to such Contractsurety, and is enforceable against the Companyco-signer, and, to the Knowledge of the Company, each such other party endorser or co-maker in accordance with its terms subject, in each case, to the effect respect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfersobligation of any Person, or any capital maintenance, keep well or similar Laws relating to agreements or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and neither the Company nor, to the Knowledge of the Company, any other party to such Contract is in material default or material breach of such Contract, and, to the Knowledge of the Company, there does not exist any event, condition or omission that would constitute such a material default or material breach (whether by lapse of time or notice or both) under any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1, 2018, the Company has not received any written notice of termination or nonrenewal with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge of the Company, no other party to any such Contract intends to provide any such notice.arrangements,
Appears in 1 contract
Contracts. (a) Except (i) for this Agreement, (ii) for the Contracts filed no less than two Business Days prior to the date hereof as exhibits to the SEC Reports, (iii) for the Company Plans and (iv) as set forth on in Section 3.11 3.8(a) of the Company Disclosure Schedule (which (i) includes any amendment, supplement or modification to any Contract listed therein and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into pursuant to the terms of other Contracts listed therein)Letter, as of the date hereof, neither the Company nor any of its Subsidiaries subsidiaries or Affiliated Entities is a party to or bound by any of the following Contracts that are Related to the Businessnote, bond, mortgage, indenture, contract, agreement, lease, license, permit or other instrument (each, a “Contract”) that:
(i) contains covenants binding upon the Company or any Contract of its subsidiaries or Affiliated Entities that materially restrict the ability of the Company or any of its subsidiaries or Affiliated Entities to engage in any business or compete in any business or with any staffing companyPerson or operate in any geographic area, temporary employee agency, professional employer organization that in each case are material to the Company or other similar company any of its subsidiaries or agencyAffiliated Entities taken as a whole;
(ii) other than with respect to any collective bargaining partnership that is wholly owned by the Company or any of its wholly owned subsidiaries or its Affiliated Entities, is a joint venture, partnership, limited liability company or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, joint venture or other similar Contract with an employee representative or labor group representing any Business Employeesarrangement, in each case, that is material to the business of the Company and its subsidiaries and Affiliated Entities, taken as a whole;
(iii) is an indenture, credit agreement, loan agreement, security agreement, guarantee, bond, mortgage or similar Contract pursuant to which any Contract relating to Indebtedness indebtedness of the Company or to mortgagingany of its subsidiaries or Affiliated Entities, pledging in each case in excess of $10,000,000, is outstanding or otherwise placing a Lien (secured, other than a Permitted Lien) on any such Contract between or among any of the Transferred Assets Company and any of its wholly owned subsidiaries or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangementsits Affiliated Entities;
(iv) prohibits the payment of dividends or distributions in respect of the capital stock of the Company or any of its subsidiaries or Affiliated Entities or prohibits the pledging of the capital stock of the Company or any subsidiary or Affiliated Entity of the Company;
(Av) is with the 10 largest suppliers and vendors of the Company (as determined by total payments in the prior fiscal year);
(vi) has resulted in payments to the Company or any of its subsidiaries or Affiliated Entities of more than $4,000,000 in the aggregate for the prior fiscal year;
(vii) with respect to any acquisition and divestiture of assets or capital stock or other equity interests (2) pursuant to which the Company or any of its subsidiaries or Affiliated Entities has continuing indemnification, guarantee, “earn-out” or other contingent payment obligations;
(viii) is a settlement, conciliation, or similar Contract with any Governmental Entity pursuant to which the Company, any of its subsidiaries or any of its Affiliated Entities has continuing obligations that materially restricts the operations of the Company, or such subsidiary or Affiliated Entity party thereto or involving the payment of more than $2,000,000 after the date of this Agreement;
(ix) is a collective bargaining or group other Contract with any labor union, works council, or other labor organization;
(x) requires the Company or any of related Contractsits subsidiaries or Affiliated Entities, directly or indirectly, to make any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or any of its wholly owned subsidiaries) in any such case which is in excess of $500,000;
(xi) (i) contains “most favored nation” pricing provisions from the Company or any of its subsidiaries or its Affiliated Entities in favor of or (ii) grants exclusive rights, rights of first refusal, rights of first negotiation or offer or similar rights to any customer where the annual payments to the Company or such subsidiary or Affiliated Entity are in excess of $5,000,000 for the prior fiscal year;
(xii) is between the Company or any of its subsidiaries or Affiliated Entities, on the one hand, and any director or officer of the Company or any of its subsidiaries or Affiliated Entities or any Person beneficially owning five percent or more of the outstanding Shares, on the other hand, except for any Company Plan;
(xiii) requires or permits the Company or any of its subsidiaries or Affiliated Entities, or any successor to, or acquirer of the Company or any of its subsidiaries or Affiliated Entities, to make any payment to another person as a result of a change of control of such party or gives another Person a right to receive or elect to receive such a payment; or
(xiv) is a Contract relating to or regarding Intellectual Property or that is material to the Company and its subsidiaries and Affiliated Entities taken as a whole, excluding (Bi) IT Asset Contract (excluding Contracts for commercially available, off-the-shelf Software with a replacement cost or an annual license fee software involving payments of less than $50,000 500,000 in the aggregate or for which the Company has made less than $50,000 in customized improvements and (ii) non-exclusive licenses in the aggregate);
(vordinary course of business consistent with past practices. Each Contract required to be set forth in Section 3.8(a) any Contract which prohibits the Company or any of its Subsidiaries from competing or otherwise freely engaging in the Business as currently conducted anywhere in the world in any material respect or that otherwise restricts any activities of the Company Disclosure Letter or any of its Subsidiaries with respect filed (or which is required to be filed) as an exhibit to the Business SEC Reports as currently conducted in any a “material respect;
contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act (vi) any Contract for the sale of Products or services, in each case, containing “most-favored nation” pricing terms or excluding any exclusive dealing arrangement or any “requirements” Contract;
(vii) any Shared Contract;
(viii) any Contract with any Material Customer or Material Supplier (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditionsCompany Plan), and any other Contract which involves the payment by or to, performance of services by or for, or the delivery of goods by or to, or capital expenditures by, the Company in excess of $750,000 in the aggregate over the shorter of: (A) the term of such Contract or (B) the 2019 calendar year;
(A) any Contract relating is referred to ownership of or investments in any business or enterprise and (B) partnership, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar herein as a “Material Contract; and
(x) any Contract involving a Governmental Entity”.
(b) Each Assumed Contract and each Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule Material Contracts is a legal, valid and binding obligation on the Company and each of the Company, its subsidiaries and Affiliated Entities party thereto and, to the Knowledge knowledge of the Company, each other party to such Contractthereto, and is in full force and effect and enforceable against the Company, and, to the Knowledge of the Company, each such other party in accordance with its terms subjectterms, in each case, subject to the effect of any applicable Laws relating to bankruptcyBankruptcy and Equity Exception, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, except (i) to the effect of general principles of equity (regardless of whether such enforceability is considered extent that any Material Contract expires or terminates in a proceeding in equity or at law)accordance with its terms, and (ii) for such failures to be valid and binding or to be in full force and effect that would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (x) neither the Company nor, to the Knowledge knowledge of the Company, any of its subsidiaries or Affiliated Entities has received written notice from any other party to a Material Contract that such other party intends to terminate, not renew, or renegotiate in any material respects the terms of any such Material Contract (except in accordance with the terms thereof) and (y) there is no breach or default under any Material Contract by the Company or any of its subsidiaries or Affiliated Entities and no event or condition has occurred that constitutes, or, with or without the lapse of time or the giving of notice or both, would constitute, a default thereunder by the Company or any of its subsidiaries or Affiliated Entities or, to the knowledge of the Company, any other party thereto. Correct and complete copies of each Material Contract have been made available to such Contract is in material default or material breach of such Contract, and, to the Knowledge of the Company, there does not exist any event, condition or omission that would constitute such a material default or material breach (whether by lapse of time or notice or both) under any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1, 2018, the Company has not received any written notice of termination or nonrenewal with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge of the Company, no other party to any such Contract intends to provide any such noticeParent.
Appears in 1 contract
Contracts. (aA) Except as Part 2.9 of the Company Disclosure Schedule identifies each Company Contract that constitutes a Significant Contract, disclosed in subsections corresponding to the list set forth on Section 3.11 below. For purposes of the Disclosure Schedule (which (i) includes any amendmentthis Agreement, supplement or modification to any Contract listed therein and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into pursuant to the terms of other Contracts listed therein), as of the date hereof, neither the Company nor any of its Subsidiaries is a party to or bound by any each of the following Contracts that are Related shall be deemed to the Businessconstitute a "Significant Contract":
(i) any Contract constituting a Company Employee Agreement providing for annual compensation to any individual in excess of $200,000, other than Contracts with any staffing company, temporary employee agency, professional employer organization or other similar company or agencyGerman employees substantially in the form of the Company's standard Contract for such employees attached to Part 2.9(a) of the Company Disclosure Schedule;
(ii) any collective bargaining agreement Contract: (A) with any works council, labor union or similar Contract with an employee representative organization or labor group representing body; (B) pursuant to which any Business Employeesof the 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 Acquired Corporations is or may become obligated to make any bonus or similar payment (other than payments constituting base salary or commissions paid in the ordinary course of business) in excess of $25,000 to any Company Associate; or (D) pursuant to which any of the Acquired Corporations is or may become obligated to accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Acquired Corporations;
(iii) any Contract relating identified or required to Indebtedness or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any be identified in Part 2.8 of the Transferred Assets or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangementsCompany Disclosure Schedule;
(iv) 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) Contract (Contracts pursuant to which the Company obtains a license from a third party only to general-purpose, non-customized business application software that is not incorporated into any Company Product and is generally available to the public pursuant to a shrink-wrap, click-wrap or group of related Contracts) relating to or regarding Intellectual Property or other similar mass-market license agreement; (B) IT Asset Contract standard forms of the type described in Section 2.8(b); and (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee of less than $50,000 C) Contracts entered into in the aggregate or ordinary course of business with customers for which the sale of Company has made less than $50,000 in customized improvements in the aggregate)Products;
(v) any Contract which prohibits creating or relating to any partnership or joint venture or requiring any Acquired Corporation to share any revenues with any other Person (it being understood that "sharing of revenues" as contemplated by this clause "(v)" is not intended to include employee bonuses that are determined in part by the Company or any of its Subsidiaries from competing or otherwise freely engaging in the Business as currently conducted anywhere in the world in any material respect or that otherwise restricts any activities revenues of the Company or any of its Subsidiaries with respect to the Business as currently conducted in any material respectAcquired Corporations);
(vi) any Contract for 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 sale defense thereof; or (B) indemnification of Products or services, in each case, containing “most-favored nation” pricing terms or any exclusive dealing arrangement or any “requirements” ContractCompany Associate;
(vii) any Shared ContractContract 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 pursuant to which any Material Customer Acquired Corporation grants or Material Supplier (excluding ordinary course task orders receives marketing, distribution, system integration, OEM or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditions), and any other Contract which involves the payment by similar rights for any product or to, performance of services by or for, or the delivery of goods by or to, or capital expenditures by, the Company in excess of $750,000 in the aggregate over the shorter of: (A) the term of such Contract or (B) the 2019 calendar yearservice;
(Aix) any Contract relating to ownership of or investments in any business or enterprise and (B) partnershipcreating a joint development, joint venturecooperative development, co-owner, limited liability company collaboration or strategic alliance collaborative research or other similar Contract; andarrangement with any Person;
(x) any Contract (other than Contracts evidencing Company Options or Company Stock Awards): (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 incorporating or relating to any guaranty, any warranty (other than warranties included in service contracts from suppliers which require annual payments of $25,000 or less and other than warranties in Contracts for the sale of Company Products), 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 that do not deviate in any material respect from the standard forms referred to in Section 2.8(b);
(xii) any Contract with a Person that supplies products or services (excluding Intellectual Property) to any Acquired Corporation where such products or services are not, as of the date of this Agreement, commercially available from another Person;
(xiii) any Contract relating to the lease or sublease by any of the Acquired Corporations of any real property involving rents of more than $25,000 per year;
(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 future payment or delivery of cash or other consideration (to or by any Acquired Corporation) in an amount or having a Governmental value in excess of $500,000 in the aggregate under such Contract (other than Contracts to purchase components for any Company Product if there is a Contract from a customer to purchase such Company Product), or contemplates or involves the performance of services (to or by any Acquired Corporation) having a value in excess of $500,000 in the aggregate under such Contract;
(xv) any Contract that has a term of more than one year and that may not be terminated by an Acquired Corporation (without penalty in excess of $25,000) within 60 days after the delivery of a termination notice by such Acquired Corporation (other than: (A) confidentiality or nondisclosure agreements entered into by any Acquired Corporation in the ordinary course of business consistent with past practices; (B) Contracts to sell Company Products entered into in the ordinary course of business consistent with past practices; (C) Contracts to purchase components for any Company Product if there is a Contract from a customer to purchase such Company Product; and (D) Contracts for the sale by the Company of spare parts in the ordinary course of business consistent with past practices);
(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; and
(xviii) any Contract: (A) requiring that any of the Acquired Corporations give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction; or (B) that could 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. The Company has delivered to Parent an accurate and complete copy of each Company Contract that constitutes a Significant Contract.
(bB) Each Assumed Company Contract that constitutes a Significant Contract is valid and each Contract disclosed or required in full force and effect, and is enforceable in accordance with its terms, subject to: (i) laws of general application relating to be disclosed on Section 3.11 bankruptcy, insolvency and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.
(C) Except as set forth in Part 2.9(c) of the Company Disclosure Schedule is a legal, valid and binding obligation of the Company, and, Schedule: (i) to the Knowledge of the Company, each other party to such Contract, and is enforceable against the Company, and, to the Knowledge none of the Company, each such other party Acquired Corporations has violated or breached in accordance with its terms subject, in each case, to the effect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfersmaterial respect, or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered committed any default in a proceeding in equity or at law), and neither the Company nor, to the Knowledge of the Companyany material respect under, any other party to such Contract is in material default or material breach of such Company Contract, and, to the Knowledge of the Company, there does not exist any event, condition or omission that would constitute such a material default or material breach ; (whether by lapse of time or notice or bothii) under any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1, 2018, the Company has not received any written notice of termination or nonrenewal with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge of the Company, no other party Person has violated or breached in any material respect, or committed any default in any material respect under, any Company 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) could reasonably be expected to: (A) result in a violation or breach in any such material respect of any of the provisions of any Company Contract; (B) give any Person the right to declare a default in any material respect under any Company 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 the maturity or performance of any Company Contract intends that constitutes a Significant Contract; or (E) give any Person the right to provide cancel, terminate or modify any such noticeCompany Contract that constitutes a Significant Contract; and (iv) since January 1, 2003, none of the Acquired Corporations has received any notice or other communication regarding any actual or possible violation or breach of, or default under, any Company Contract that constitutes a Significant Contract.
Appears in 1 contract
Contracts. (a) Except as set forth on Section 3.11 4.10(a) of the Company Disclosure Schedule (which (i) includes sets forth a true and complete list in all material respects of each Contract of the Company or any amendment, supplement or modification to any Contract listed therein and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into pursuant to the terms of other Contracts listed therein), Company Subsidiary in effect as of the date hereof, neither the Company nor any of its Subsidiaries this Agreement that is a party to or bound by included in any of the following Contracts categories (each such Contract a “Material Contract”; provided, however, that are Related to the Business:term “Material Contract” shall not include any Development Documents);
(i) all Contracts that purport to limit, curtail or restrict the freedom or right of the Company or any Contract Company Subsidiary in any material respect (A) to engage or compete in any line of business or create, develop, market, sell, supply, provide, license or distribute any product or service, in each case, in any market or geographic area, with any staffing companyPerson or during any period of time (or pursuant to which a benefit or right is required to be given or would be lost as a result of so competing, temporary employee agencyengaging, professional employer organization marketing, selling, supplying, licensing or other similar company distributing), or agency(B) to solicit or hire any Person or group of Persons;
(ii) (A) any collective bargaining Investment Advisory Agreement or services Contract between a Company or Company Subsidiary and any Public Fund or Sub-Advised Fund and any program management agreement or similar other Contract with an employee representative related to the 529 Plan or labor group representing (B) any Business Employeesprogram management agreement or other Contract related to a managed account platform that is reasonably likely to provide annual payments in excess of $2,500,000, in each case to which the Company or a Company Subsidiary is a party;
(iii) (A) any standard form Contract relating pursuant to Indebtedness which the Company or any Company Subsidiary provides brokerage services or investment advisory services to mortgagingany Client and (B) any material Contract (or group of Contracts that, pledging in the aggregate, are material) pursuant to which the Company or otherwise placing a Lien (other than a Permitted Lien) any Company Subsidiary provides brokerage services or investment advisory services to any Client that is not on such standard form and includes material deviations from any of the Transferred Assets or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangementssuch standard form;
(iv) any (A) Contract (that by its terms limits the payment of dividends or group of related Contracts) relating to or regarding Intellectual Property or (B) IT Asset Contract (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee of less than $50,000 in the aggregate or for which other distributions by the Company has made less than $50,000 in customized improvements in the aggregate)or any Company Subsidiary;
(v) any Contract which prohibits that grants any Person other than the Company or any Company Subsidiary any (A) “most favored nation” or other material preferred pricing rights; (B) rights of its Subsidiaries from competing first refusal, rights of first negotiation or otherwise freely engaging in the Business as currently conducted anywhere in the world in any material respect similar rights or that otherwise restricts any activities materially limits or purports to materially limit the ability of the Company or any Company Subsidiary to own, operate, sell, transfer, pledge or otherwise dispose of its Subsidiaries with respect to the Business as currently conducted in any material respectamount of assets or businesses; or (C) material caps, rebates or waivers on fees or expenses;
(vi) any joint venture, partnership, limited liability company agreement or similar Contract for the sale of Products or services, in each case, containing “most-favored nation” pricing terms or any exclusive dealing arrangement or any “requirements” Contractwith third parties;
(vii) any Shared ContractContract relating to the disposition or acquisition by the Company or any Company Subsidiary of any business (whether by merger, sale or purchase of assets, sale or purchase of stock or equity ownership interests or otherwise) or Subsidiary (A) entered into since January 1, 2018, (B) that contains “earn-out” provisions or other payment (including contingent payment) or holdback obligations that are or may be payable after the date of this Agreement or (C) that contains ongoing non-competition, indemnification or other obligations that are material to the Company and the Company Subsidiaries, taken as a whole;
(viii) any Contract by which a third Person sells, licenses or otherwise provides to the Company or any Company Subsidiary content, technology, Intellectual Property or Systems that are material to the Company or any Company Subsidiary (including in connection with any Material Customer Company Platforms) that provides for payments by the Company or Material Supplier any Company Subsidiary in excess of $500,000 annually, in each case, other than any licenses for Commercially Available Software;
(excluding ordinary course task orders ix) any Contract (A) granting any current or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditions), and any other Contract which involves the payment by or to, performance of services by or for, or the delivery of goods by contingent right in or to, or capital expenditures bylicense of, the any material Company in excess of $750,000 Intellectual Property to any Person (other than to a Client in the aggregate over the shorter of: (A) the term ordinary course of such Contract or business consistent with past practice), (B) providing for the 2019 calendar yearcreation, development, modification or enhancement of any material content, technology or Intellectual Property for the benefit of the Company or any Company Subsidiary (other than Contracts of employment) or (C) that includes a source code escrow arrangement, or pursuant to which a third party is granted any current or contingent right in or access to any Platform Source Code;
(A) any Contract relating to ownership of or investments in any business or enterprise and (B) partnership, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar Contract; and
(x) any Contract involving with any providers of co-location, data hosting or application services material to the Company or any Company Subsidiary;
(xi) any Contract relating to Invested Capital or otherwise requiring the Company or any Company Subsidiary to commit capital to any Fund;
(xii) any Contract (A) governing the terms of any existing equity or debt investment by the Company or any Company Subsidiary or (B) providing for ongoing capital commitments (including any obligation to provide funds, or make an investment, in the form of a Governmental Entityloan, capital contribution or otherwise);
(xiii) any Contract relating to Indebtedness for borrowed money in excess of $10,000,000, or any Contract required to be filed under Item 601(b)(4) of Regulation S-K under the Securities Act;
(xiv) any Contract relating to the settlement of any civil, administrative or judicial Action within the past five years in excess of $1,000,000 in any individual case or series of related cases;
(xv) any Contract providing for the employment or engagement of any individual on a full-time, part-time, consulting, independent contractor or other basis or otherwise providing compensation, benefits, severance, retention, change in control or other termination-related payments or other benefits to any individual who is a current or former equity holder, director, officer, manager, employee, consultant, independent contractor, partner or agent, other than (A) Contracts providing compensation, bonus or benefits aggregating less than $1,000,000 per annum in 2020 or (B) Contracts providing for severance, retention, change in control or other termination-related payments or benefits of less than $150,000;
(xvi) any (A) standstill or similar agreement restricting any Person from acquiring the securities of, soliciting proxies respecting, or affecting the control of, any other Person, or (B) Contract requiring the Company or any Company Subsidiary to provide any notice or information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal or prior to entering into any discussions or Contract relating to any Acquisition Proposal or similar transaction;
(xvii) any Contract that is reasonably likely to involve payments by or to the Company or any of the Company Subsidiaries of more than $10,000,000 over the four consecutive fiscal quarters commencing on October 1, 2020 and which is not otherwise described in clauses (i) – (xvi) above or (xviii) – (xxii) below;
(xviii) any Contract reasonably expected to result in payments made or received by the Company and the Company Subsidiaries in excess of $5,000,000 in any year that provides for any distribution arrangement, referral arrangement, commission sharing arrangement or co-marketing arrangement, including any agreement for soliciting, distributing or promoting investment advisory products or services or brokerage services by or to the Company or any of its Subsidiaries;
(xix) any Contract providing for (A) indemnification of any Person with respect to material Liabilities relating to any current or former business of the Company, any of the Company Subsidiaries or any predecessor Person, other than indemnification obligations of the Company or any of the Company Subsidiaries pursuant to the provisions of a Contract entered into by the Company or any of the Company Subsidiaries in the ordinary course of business consistent with past practice or that would not reasonably be expected to be material to the Company and the Company Subsidiaries, taken as a whole; or (B) any guaranty by the Company or any Company Subsidiary that is material to the Company or any Company Subsidiary (in each case with respect to which the Company or any Company Subsidiary has continuing obligations as of the date of this Agreement);
(xx) any other Contract under which the consequences of a default, breach or early termination would reasonably be expected to have a Company Material Adverse Effect;
(xxi) any Contract with (A) any director, executive officer or other Affiliate of the Company or (B) any record or, to the Knowledge of the Company, beneficial owner of five percent (5%) or more of the Company Common Stock; and
(xxii) all other Contracts 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 or disclosed by the Company on a Current Report on Form 8-K, whether or not so filed or disclosed.
(b) Each Assumed True and complete copies of each Material Contract have been made available by the Company to Parent or publicly filed with the SEC prior to the date hereof. Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect: (i) each Material Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule is a legal, valid and binding obligation of the Company or a Company Subsidiary and, to the Knowledge of the Company, of the other party or parties thereto, and is in full force and effect and enforceable in accordance with its terms, subject to the Bankruptcy and Equity Exception, except for such Material Contracts that expire after the date of this Agreement in accordance with their respective terms; (ii) each of the Company and each Company Subsidiary has performed all obligations required to be performed by it under each Material Contract in all material respects and, to the Knowledge of the Company, each other party to each Material Contract has performed all obligations required to be performed by it under such Contract, and is enforceable against the Company, and, to the Knowledge Material Contract in all material respects; (iii) none of the Company, each such other party in accordance with its terms subject, in each case, to the effect of Company nor any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfersCompany Subsidiary has Knowledge of, or similar Laws relating to has received written notice of, any violation or affecting creditors’ rights generally default under any Material Contract; and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and iv) neither the Company nor, to the Knowledge of the Company, nor any other party to such Contract is in material default or material breach of such Contract, and, to the Knowledge of the Company, there does not exist any event, condition or omission that would constitute such a material default or material breach (whether by lapse of time or notice or both) under any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1, 2018, the Company Subsidiary has not received any written notice of termination or nonrenewal with respect to from any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge of the Company, no other party to any such Material Contract to the effect that, and otherwise has no Knowledge that, such party intends to provide terminate, or not renew, any such noticeMaterial Contract.
Appears in 1 contract
Contracts. (a) Except as set forth on Section 3.11 3.11(a) of the Company Disclosure Schedule (sets forth a complete and accurate list of the following contracts and agreements to which (i) includes any amendment, supplement or modification to any Contract listed therein and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into pursuant to the terms of other Contracts listed therein), Company is a party as of the date hereofof this Agreement (each, neither a “Company Material Contract” and, collectively, the “Company nor any of its Subsidiaries is a party to or bound by any of the following Contracts that are Related to the Business:Material Contracts”):
(i) any Contract with contract between the Company or any staffing companyof its Subsidiaries, temporary employee agencyon the one hand, professional employer organization and any Significant Customer or other similar company or agencySignificant Supplier;
(ii) any collective bargaining agreement or similar Contract with an employee representative or labor group representing contract containing any Business Employees;
(iii) any Contract relating to Indebtedness or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any of the Transferred Assets or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangements;
(iv) any covenant (A) Contract (of the Company granting “most favored nation” or group of related Contracts) relating “exclusivity” status to or regarding Intellectual Property or a third party, (B) IT Asset Contract (excluding commercially availablethat prohibits or otherwise restricts in, off-the-shelf Software with a replacement cost or an annual license fee of less than $50,000 in the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregate);
(v) any Contract which prohibits material respect, the Company or any of its Subsidiaries from competing or otherwise freely engaging in any line of business, including making, selling, supplying, marketing or distributing any products or services, or competing with any Person or operating at any location, (C) granting any rights of first refusal, rights of first offer or other similar rights to any Person with respect to any material assets, rights or properties of the Business Company or any of its Subsidiaries;
(iii) any “material contract” (as currently conducted anywhere such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to the Company or its Subsidiaries;
(iv) any contract of the Company or any of its Subsidiaries, on the one hand, and (A) any Governmental Entity, (B) any prime contractor of any Governmental Entity in its capacity as such or (C) any subcontractor with respect to any contract described in clause (A) or (B) above, on the other hand (a “Government Contract”) under which the Company or its Subsidiaries collectively made or received payments in excess of $1,000,000 during the fiscal year ended March 31, 2016 or, to the Company’s Knowledge, is expected to make or receive payments during the fiscal year ending March 31, 2017 in excess of $1,000,000 in the world aggregate;
(v) any employment or consulting agreement with any executive officer or other employee of the Company, individual consultant or member of the Company Board (A) providing for an annual salary in excess of $100,000, (B) in the case of a consultant, providing for annual cash compensation which may exceed $100,000, or (C) providing for the payment of any material cash or other compensation or benefits upon the consummation of the transactions contemplated by this Agreement, other than those that are terminable by the Company or any of its Subsidiaries on no more than 30 days’ notice without liability or financial obligation to the Company or any of its Subsidiaries;
(vi) any collective bargaining agreement or other contract with any labor union;
(vii) any contract related to indebtedness having an outstanding amount in excess of $1,000,000 in the aggregate, other than any indebtedness between the Company and any of its Subsidiaries and letters of credit issued by the Company in the Ordinary Course of Business;
(viii) any contract that prohibits (A) the payment of dividends or distributions in respect of the capital stock of the Company or that otherwise restricts any activities of its Subsidiaries, (B) the pledging of the capital stock of the Company or any of its Subsidiaries with respect to or (C) the Business as currently conducted in incurrence of indebtedness for borrowed money or guarantees by the Company or any material respectof its Subsidiaries;
(viix) any Contract for contract that contains a commitment by the sale of Products or services, in each case, containing “most-favored nation” pricing terms Company or any exclusive dealing arrangement or of its Subsidiaries to make any “requirements” Contract;
(vii) any Shared Contract;
(viii) any Contract with any Material Customer or Material Supplier (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditions), and any other Contract which involves the payment by or to, performance of services by or for, or the delivery of goods by or to, or capital expenditures by, the Company expenditure in excess of $750,000 in the aggregate over the shorter of: (A) the term of such Contract or (B) the 2019 calendar year1,000,000;
(A) any Contract relating to ownership of or investments in any business or enterprise and (B) partnership, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar Contract; and
(x) any Contract involving contract that involves the acquisition from another Person or disposition to another Person, directly or indirectly (by merger, license or otherwise), of assets (other than inventory or equipment) or capital stock or other equity interests (A) in the past five years for aggregate consideration under such contract (or series of related contracts) in excess of $1,000,000 or (B) pursuant to which the Company or any of its Subsidiaries has continuing “earn-out”, indemnification or other similar contingent payment obligations;
(xi) any settlement or conciliation or similar agreement (A) with any Governmental Entity or (B) which would require the Company or any of its Subsidiaries to pay aggregate consideration of more than $1,000,000 after the date of this Agreement or which imposes material obligations upon the Company or any of its Subsidiaries;
(xii) any contract related to a Governmental Entityjoint venture, partnership, limited liability, profit-sharing or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture; or
(xiii) Third Party IP Agreements.
(b) The Company has made available to the Buyer a copy of each Company Material Contract. Each Assumed Company Material Contract and each Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule is a legal, valid and binding obligation of on the Company or its Subsidiaries party thereto, as applicable, and to the Company, and, to the Knowledge of the Company’s Knowledge, each other party to such Contractthereto, and is in full force and effect and enforceable against the Company, and, to the Knowledge of the Company, each such other party in accordance with its terms subject, in each case, to the effect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and neither terms. Neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company’s Knowledge, any other party to such any Company Material Contract is in material default has breached, violated, or material breach of such Contract, and, to the Knowledge of the Company, defaulted under (nor does there does not exist any eventcondition which, condition or omission that would constitute such a material default or material breach (whether by lapse upon the passage of time or the giving of notice or both) under , would cause such a violation of or default under), or received notice that it has breached, violated or defaulted under, any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1terms or conditions of any Company Material Contract, 2018except for violations or defaults that, individually or in the aggregate, would not materially affect the business and operations of the Company and its Subsidiaries.
(c) Neither the Company nor any of its Subsidiaries has entered into any transaction that would be subject to disclosure pursuant to Item 404 of Regulation S-K that has not received any written notice of termination been disclosed in the Company SEC Reports filed on or nonrenewal with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, prior to the Knowledge of the Company, no other party to any such Contract intends to provide any such noticedate hereof.
Appears in 1 contract
Sources: Merger Agreement (American Science & Engineering, Inc.)
Contracts. (a) Except as set forth on Section 3.11 Schedule 2.12 of the Disclosure Schedule (which (i) includes any amendment, supplement or modification to any Contract listed therein sets forth a complete and (ii) shall not include Contracts that are invoices, statements accurate list of work or purchase orders entered into pursuant to the terms of other Contracts listed therein), as each of the date hereof, neither following Contracts to which the Company nor or any of its Subsidiaries is a party to or bound by which the Company or any of the following Contracts that its Subsidiaries, or any of their assets or properties, are Related to the Businessbound:
(ia) any Contract with any staffing company, temporary employee agency, professional employer organization or other similar company or agency;
(ii) any collective bargaining agreement or similar Contract with an employee representative or labor group representing any Business Employees;
(iii) any Contract relating to Indebtedness or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any of the Transferred Assets or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangements;
(iv) any (A) Contract (or group series of related Contracts) relating Contracts pursuant to or regarding Intellectual Property or (B) IT Asset Contract (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee of less than $50,000 in the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregate);
(v) any Contract which prohibits the Company or any of its Subsidiaries has made aggregate expenditures or payments in excess of $50,000 in the past twelve (12) months and for which the Company or any of its Subsidiaries has ongoing obligations or rights thereunder, other than Company Employee Plans and Employee Agreements;
(b) any Contract for the purchase, lease, license or rental of equipment in excess of $25,000 on a one-time or annual basis;
(c) any Contract that will not expire in accordance with its terms, and that the Company may not terminate in its discretion, with ninety (90) or fewer days’ notice, during the twelve (12)-month period following the date of this Agreement, in each case without Liability or other further material obligations, other than (i) nondisclosure or confidentiality provisions in Contracts entered into in the ordinary course of business, (ii) Employee Proprietary Information Agreements entered into with the Employees that do not differ from competing the Company’s form Made Available to Parent pursuant to Section 2.14(l) and (iii) Company Employee Plans and Employee Agreements;
(d) any Contract (including Contracts with customers of Company Products or licensees of Company Technology) between the Company or any of its Subsidiaries and any other Person other than Standard Form Agreements, wherein or whereby the Company or any of its Subsidiaries has agreed to, or assumed, any obligation or duty to indemnify, reimburse, hold harmless, guarantee or otherwise freely engaging in assume or incur any obligation or liability or provide a right of rescission with respect to the Business as currently conducted anywhere in infringement or misappropriation by the world Company or any of its Subsidiaries or such other Person of the Technology or Intellectual Property of any Person;
(e) any distributor, reseller, sales representative or similar Contract (indicating on Schedule 2.12(e) of the Disclosure Schedule which are based on, and do not deviate in any material respect or that otherwise restricts respect, from the applicable Standard Form Agreement);
(f) any activities Contract (i) limiting the freedom of the Company or any of its Subsidiaries to engage or participate, or compete with respect to the Business as currently conducted any other Person, in any material respectline of business, market or geographic area, or to make use of any Company Intellectual Property, (ii) under which the Company or any of its Subsidiaries grants most favored nation pricing, exclusive sales, distribution, marketing or other exclusive rights, rights of refusal, rights of first negotiation or similar rights and/or terms to any Person, or (iii) otherwise limiting the right of the Company or any of its Subsidiaries to (A) sell, distribute or manufacture any products or services, (B) purchase or otherwise obtain any services or any software or other Technology, or (C) grant reseller rights to third parties;
(vig) (i) any Contract for restricting the sale ability of Products or services, in each case, containing “most-favored nation” pricing terms the Company or any exclusive dealing arrangement or any “requirements” Contract;
(vii) any Shared Contract;
(viii) any Contract with any Material Customer or Material Supplier (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditions), and any other Contract which involves the payment by or to, performance of services by or for, or the delivery of goods by or to, or capital expenditures by, the Company in excess of $750,000 in the aggregate over the shorter of: (A) the term of such Contract or (B) the 2019 calendar year;
(A) any Contract relating to ownership of or investments in any business or enterprise and (B) partnership, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar Contract; and
(x) any Contract involving a Governmental Entity.
(b) Each Assumed Contract and each Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule is a legal, valid and binding obligation of the Company, and, to the Knowledge of the Company, each other party to such Contract, and is enforceable against the Company, and, to the Knowledge of the Company, each such other party in accordance with its terms subject, in each case, to the effect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and neither the Company norSubsidiaries or, to the Knowledge of the Company, any other of their respective employees to hire or solicit potential employees, consultants or independent contractors and (ii) any Contract restricting the ability of any third party to such Contract is in material default or material breach of such Contract, andor, to the Knowledge of the Company, there does any of their respective employees to hire or solicit potential employees, consultants or independent contractors of the Company or any of its Subsidiaries or Affiliates;
(h) all licenses, sublicenses and other Contracts as to which the Company or any of its Subsidiaries is a party and pursuant to which any Person is authorized to use or otherwise exploit any Company Intellectual Property or Company Technology (other than nonexclusive licenses to Company Intellectual Property granted by the Company or its Subsidiaries in the ordinary course of business in the form (without additional material terms) of the Company’s applicable Standard Form Agreement);
(i) all Contracts pursuant to which the Company or any of its Subsidiaries has agreed to any restriction on the right of the Company or any of its Subsidiaries to use or enforce any Company Intellectual Property (other than nonexclusive licenses to Company Intellectual Property granted by the Company or its Subsidiaries in the ordinary course of business) and that do not exist otherwise grant any eventexclusive rights;
(j) all Contracts pursuant to which the Company or any of its Subsidiaries has agreed to transfer or sell rights in or with respect to any Company Intellectual Property;
(k) any Contract providing for the development of any Technology, condition independently or omission that would constitute such a jointly, by or for the Company or any of its Subsidiaries, including any invention assignment or similar Contract between the Company or any of its Subsidiaries and an Employee;
(l) any trust, loan agreement, indenture, note, bond, debenture or any other document or Contract evidencing Indebtedness to any Person, any capitalized lease obligation, or any commitment to provide any of the foregoing, or any agreement of guaranty, indemnification or other similar commitment with respect to the obligations or Liabilities of any other Person;
(m) any Contract for the past, present or future disposition of any material default portion of the assets or material breach business (whether by lapse merger, sale of time stock, sale of assets or notice or bothotherwise) under any Assumed Contract of the Company or any of its Subsidiaries;
(n) any Contract disclosed for the acquisition of the business or required capital stock of another party (whether by merger, sale of stock, sale of assets or otherwise);
(o) any Contract concerning a joint venture, partnership, joint development or other similar arrangement with one or more Persons;
(p) any Contract under which the Company or any of its Subsidiaries has sold any products, provided any services, or licensed any Technology pursuant to be disclosed on which the Company or any of its Subsidiaries has received since its incorporation any payment in excess of $50,000 or $100,000 in aggregate payments;
(q) any Contract relating to (i) any facility (or related services) where the computer equipment used to operate or provide Company Products is located or (ii) the lease, license or rental of any such equipment (or the provision of related services) to the Company or any of its Subsidiaries;
(r) any settlement agreement;
(s) any Contract not listed in clauses (a)–(r) of this Section 3.11 2.12, inclusive, with any Company Top Customer or Company Top Supplier; or
(t) any other agreement not listed in clauses (a)–(s) of this Section 2.12, inclusive, that is otherwise material to the business of the Company or its Subsidiaries. Each Contract set forth in Schedule 2.12 of the Disclosure Schedule. Since January 1, 2018Schedule 2.13(a) of the Disclosure Schedule, Schedule 2.14(g)(2) of the Company has not received any written notice Disclosure Schedule, Schedule 2.14(f) of termination the Disclosure Schedule, Schedule 2.16(c) of the Disclosure Schedule, Schedule 2.16(d) of the Disclosure Schedule, Schedule 2.22 of the Disclosure Schedule, or nonrenewal with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 Schedule 2.25 of the Disclosure Schedule and(or, in each case, required to be so disclosed therein, whether or not actually disclosed therein) (each, a “Material Contract” and collectively, the “Material Contracts”) is a valid and binding agreement of the Company or its Subsidiary, as applicable, and is in full force and effect in accordance with its terms. True and complete copies of each of the Material Contracts (including all amendments thereto) have been Made Available to Parent. Neither the Company nor any of its Subsidiaries is in material default or breach under the terms of any Contract (a “default” being defined for purposes hereof as an actual default or event of default or the existence of any fact or circumstance that would, upon receipt of notice or with the passage of time, constitute a default or give rise to a right of termination) 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 assets is bound, nor will the consummation of the Merger or any other transactions contemplated by this Agreement give rise to any such material default or breach. Neither the Company nor any of its Subsidiaries has failed to satisfy (and no Person has claimed or, to the Company’s Knowledge, threatened to claim, that the Company or any of its Subsidiaries has failed to satisfy) any service level requirement, minimum performance guaranty, or similar commitment or arrangement under any Contract 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 assets is bound, and the Company has no Knowledge of any basis for such a claim. Neither the Company nor any of its Subsidiaries has ever provided, and neither the Company nor any of its Subsidiaries has any reason to believe it will be required to provide, any refund, credit or other compensation to any Person as a result of any such service level requirement, minimum performance guaranty, or similar commitment or arrangement. To the Company’s Knowledge, no other party to any Material Contract is in material default or breach of such Contract intends to provide any such noticeMaterial Contract.
Appears in 1 contract
Sources: Merger Agreement (Fusion-Io, Inc.)
Contracts. (a) Except as set forth on Section 3.11 Part 2.10 of the Disclosure Schedule (which (i) includes any amendment, supplement or modification to any Contract listed therein and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into pursuant to the terms of other Contracts listed therein), as of the date hereof, neither the Company nor any of its Subsidiaries is a party to or bound by any of the following Contracts that are Related to the Businessidentifies:
(i) each Acquired Company Contract relating to the employment of, or the performance of services by, any Contract with any staffing companyemployee, temporary employee agency, professional employer organization consultant or other similar company or agencyindependent contractor;
(ii) each Acquired Company Contract relating to the acquisition, transfer, use, development, sharing or license of any collective bargaining agreement material technology or similar Contract with an employee representative any material Intellectual Property or labor group representing any Business Employeesmaterial Intellectual Property Right;
(iii) each Acquired Company Contract imposing any Contract relating restriction on any Acquired Company’s right or ability (A) to Indebtedness compete with any other Person, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to mortgagingtransact business or deal in any other manner with any other Person, pledging or otherwise placing a Lien (other than a Permitted LienC) on develop or distribute any of the Transferred Assets or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangementstechnology;
(iv) each Acquired Company Contract creating or involving any (A) Contract (agency relationship, distribution arrangement or group of related Contracts) relating to or regarding Intellectual Property or (B) IT Asset Contract (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee of less than $50,000 in the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregate)franchise relationship;
(v) any each Acquired Company Contract which prohibits the Company or any of its Subsidiaries from competing or otherwise freely engaging in the Business as currently conducted anywhere in the world in any material respect or that otherwise restricts any activities of the Company or any of its Subsidiaries with respect relating to the Business as currently conducted in acquisition, issuance or transfer of any material respectsecurities;
(vi) each Acquired Company Contract relating to the creation of any Contract for the sale Encumbrance with respect to any asset of Products or services, in each case, containing “most-favored nation” pricing terms or any exclusive dealing arrangement or any “requirements” ContractAcquired Company;
(vii) any Shared Contracteach Lease Agreement;
(viii) each Acquired Company Contract involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangement;
(ix) each Acquired Company Contract with creating or relating to any Material Customer partnership or Material Supplier joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(excluding ordinary course task orders x) each Acquired Company Contract relating to the purchase or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditions), and sale of any product or other Contract which involves the payment asset by or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18);
(xi) each Acquired Company Contract constituting or the delivery of goods by relating to a Government Contract or to, Government Bid;
(xii) any Acquired Company Contract that contain “most favored nation” or preferred pricing provisions;
(xiii) any Acquired Company Contract or commitment relating to capital expenditures by, the Company and involving future payments in excess of $750,000 25,000 individually;
(xiv) any sales representative, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor, or other agreement for use or distribution of the Acquired Company Product;
(xv) any purchase order or Acquired Company Contract for the purchase of materials or data involving in excess of $25,000;
(xvi) any other Acquired Company Contract that was entered into outside the aggregate over ordinary course of business or was inconsistent with any Acquired Company’s past practices;
(xvii) any other Acquired Company Contract that has a term of more than 60 days and that may not be terminated by the shorter of: Acquired Company (without penalty) within 60 days after the delivery of a termination notice by the Acquired Company;
(xviii) any inter-company Contract between the Acquired Companies; and
(xix) any other Acquired Company Contract that contemplates or involves (A) the term payment or delivery of such Contract cash or other consideration in an amount or having a value in excess of $100,000 in the aggregate, or (B) the 2019 calendar year;
performance of services having a value in excess of $100,000 in the aggregate. (A) any Contract relating Contracts in the respective categories described in clauses “(i)” through “(xix)” above are referred to ownership of or investments in any business or enterprise and (B) partnership, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar Contract; and
(x) any Contract involving a Governmental Entitythis Agreement as “Material Contracts.”)
(b) Each Assumed Contract The Company has delivered to Parent accurate and each Contract disclosed or required to be disclosed on Section 3.11 complete copies of all written Material Contracts, including all amendments thereto. Part 2.10 of the Disclosure Schedule provides an accurate description of the terms of each Acquired Company Contract that is a legal, not in written form. Each Material Contract is valid and binding obligation of the Companyin full force and effect, and, to the Knowledge of the CompanyAcquired Companies, each other party to such Contract, and is enforceable against by the CompanyCompany or the Subsidiary, andas applicable, to the Knowledge of the Company, each such other party in accordance with its terms subjectterms, in each case, subject to the effect (i) laws of any applicable Laws general application relating to bankruptcy, reorganizationinsolvency and the relief of debtors, insolvencyand (ii) rules of law governing specific performance, moratorium, fraudulent conveyance injunctive relief and other equitable remedies.
(c) Except as set forth in Part 2.10 of the Disclosure Schedule:
(i) none of the Acquired Companies have violated or preferential transfersbreached, or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and neither the Company nor, to the Knowledge of the Companycommitted any default under, any other party to such Contract is in material default or material breach of such Acquired Company Contract, and, to the Knowledge of the CompanyAcquired Companies, there does not exist no other Person has violated or breached, or committed any eventdefault under, condition or omission that would constitute such a material default or material breach any Acquired Company Contract;
(whether by lapse of time or notice or bothii) under any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1, 2018, the Company has not received any written notice of termination or nonrenewal with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge of the CompanyAcquired Companies, no event has occurred and is continuing, and no circumstance or condition currently exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, (A) result in a material violation or material breach of any of the provisions of any Acquired Company Contract, (B) give any Person the right to declare a default or exercise any remedy under any Acquired Company Contract, (C) give any Person the right to accelerate the maturity or performance of any Acquired Company Contract, or (D) give any Person the right to cancel, terminate or modify any Acquired Company Contract;
(iii) none of the Acquired Companies has received any notice or other party communication nor has any reasonable expectation of receiving any notice or other communication regarding any actual or possible violation or breach of, or default under, any Acquired Company Contract; and
(iv) none of the Acquired Companies has waived any of its material rights under any Material Contract.
(d) No Person is renegotiating, or has a right pursuant to the terms of any Acquired Company Contract to renegotiate, any amount paid or payable to the Acquired Company under any Material Contract or any other material term or provision of any Material Contract.
(e) No current customer and no material current vendor of the Company or the Subsidiary has canceled or otherwise terminated (including by failure to renew), or to the Knowledge of the Acquired Companies, since October 31, 2006, communicated to the Key Employees its intention to the Company or the Subsidiary to so cancel or otherwise terminate (including by failure to renew), its relationship with the Company or the Subsidiary or has at any time since October 31, 2006, decreased materially its services or supplies to the Company or the Subsidiary in the case of any such vendor, or its usage of the services or products of the Company or the Subsidiary in the case of such customer. To the Knowledge of the Acquired Companies, no such material vendor or customer has indicated orally (since October 31, 2006) to the Key Employees or in a writing delivered to the Company or the Subsidiary that such supplier or customer intends to cancel or otherwise terminate its relationship (including by failure to renew) with the Company or the Subsidiary or to decrease materially its delivery of services or supplies to the Company or the Subsidiary or its usage of the services or products of the Company or the Subsidiary, as the case may be. Neither the Company nor the Subsidiary has engaged in any fraudulent conduct with respect to any such Contract intends to provide any such noticecustomer or vendor of the Company or the Subsidiary.
Appears in 1 contract
Sources: Merger Agreement (Websense Inc)
Contracts. (a) Except as set forth on Section 3.11 of in Schedule 5.09(a) and except for any agreements included in the Disclosure Schedule (which (i) includes any amendment, supplement Retained Assets and Liabilities or modification to any Contract listed therein and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into pursuant to the terms of other Contracts listed therein)Argyll Road Carve-Out, as of the date hereofof this Agreement, neither the Company nor any of its Subsidiaries is not a party to or bound by any of the following Contracts that are Related to the Businessany:
(i) written employment agreement (including any Contract with any staffing company, temporary employee agency, professional employer organization severance or other similar company or agencytermination agreement);
(ii) any collective bargaining agreement or other contract with any labor organization, union, association or similar Contract with an employee representative group or labor group representing any Business Employeesorganization;
(iii) any Contract relating to Indebtedness or to mortgaging, pledging or otherwise placing a Lien agreement (other than a Permitted Lienthis Agreement) on with (A) Company or any Affiliate of Company or (B) any officer, director or employee of the Transferred Assets Company, Company or letter any Affiliate of credit arrangements, surety or performance bonds, guarantee, support or similar arrangementsCompany;
(iv) lease, sublease or similar agreement with any Person under which the Company is a lessor or sublessor of, or makes available for use to any Person any Owned Property; [ ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED
(v) lease, sublease or similar agreement with any Person under which (A) Contract (the Company is lessee of, or group of related Contracts) relating to holds or regarding Intellectual Property uses, any machinery, equipment, vehicle or other tangible personal property owned by any Person or (B) IT Asset Contract the Company is a lessor or sub-lessor of, or makes available for use by any Person, any tangible personal property owned or leased by the Company;
(excluding commercially availablevi) (A) agreement for the purchase of materials, offsupplies or equipment or (B) management, service, consulting or other similar agreement, in any such case which is not terminable by the Company by notice of not more than sixty (60) days without penalty;
(vii) license, sublicense, option or other agreement relating in whole or in part to the Intellectual Property (including any license or other agreement under which the Company is licensee or licensor of any Intellectual Property);
(viii) agreement under which the Company has borrowed any money from, or issued any note, bond, debenture or other evidence of indebtedness to, any Person or any other note, bond, debenture or other evidence of indebtedness of the Company (other than in favor of the Company);
(ix) agreement (including any so-thecalled take-shelf Software with a replacement cost or-pay or an annual license fee keepwell agreements) under which (A) any Person other than the Company, has guaranteed indebtedness, liabilities or obligations of less the Company or (B) the Company has guaranteed indebtedness, liabilities or obligations of any Person, other than $50,000 the Company (in each case other than endorsements for the purpose of collection in the aggregate or for ordinary course of business);
(x) agreement under which the Company has made less any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than $50,000 in customized improvements extensions of trade credit in the aggregateordinary course of business);
(vxi) agreement granting a Lien upon any Contract which prohibits the Company or any of its Subsidiaries from competing or otherwise freely engaging Asset;
(xii) agreement not made in the Business as currently conducted anywhere in ordinary course of business;
(xiii) confidentiality, secrecy or non-disclosure agreement or other contract limiting the world in any material respect or that otherwise restricts any activities freedom of the Company or any of its Subsidiaries with respect to the Business as currently conducted engage in any material respectbusiness or compete with any Person;
(vixiv) any Contract agreement for the sale of Products any asset of the Company (other than inventory sales in the ordinary course of business) or servicesthe grant of any preferential rights to purchase any such asset, other than any such agreement entered into in each case, containing “most-favored nation” pricing terms or any exclusive dealing arrangement or any “requirements” Contractthe ordinary course of business after the date of this Agreement and not in violation of this Agreement;
(viixv) agreements with or Permits by or from any Shared ContractGovernmental Entity;
(viiixvi) any Contract with any Material Customer currency exchange, interest rate exchange, commodity exchange or Material Supplier (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditions)similar agreement; [ ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, and any other Contract which involves the payment by or toMARKED BY BRACKETS, performance of services by or forIS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, or the delivery of goods by or to, or capital expenditures by, the Company in excess of $750,000 in the aggregate over the shorter of: (A) the term of such Contract or (B) the 2019 calendar year;AS AMENDED
(Axvii) agreement for any Contract relating to ownership of or investments in any business or enterprise and (B) partnership, joint venture, co-owner, limited liability company collaboration partnership or strategic alliance or other similar Contractarrangement; and
(xxviii) any Contract involving a Governmental Entityagreement which requires the Company to make capital expenditures in excess of Canadian f100,000 payable after the Closing.
(b) Each Assumed Contract and each Contract disclosed or required Except as set forth in Schedule 5.09(b) to be disclosed on Section 3.11 of the Disclosure Schedule is a legal, valid and binding obligation knowledge of the Company, all contracts required to be listed in Schedule 5.09(b) and not included in the Retained Assets and Liabilities or the Argyll Road Carve-Out (the “Company Contracts”) are valid, binding and in full force and effect and are enforceable by the Company in accordance with their terms. Except as set forth in Schedule 5.09(b), the Company has performed all material obligations required to be performed by it to date under the Company Contracts, and it is not (with or without the lapse of time or the giving of notice, or both) in breach or default in any material respect thereunder and, to the Knowledge of the Company, each other party to such Contract, and is enforceable against the Company, and, to the Knowledge of the Company, each such other party in accordance with its terms subject, in each case, to the effect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and neither the Company nor, to the Knowledge of the Company, any other party to such Contract is in material default or material breach of such Contract, and, to the Knowledge of the Company, there does not exist any event, condition or omission that would constitute such a material default or material breach (whether by lapse of time or notice or both) under any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1, 2018, the Company has not received any written notice of termination or nonrenewal with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge knowledge of the Company, no other party to any such Company Contract intends is (with or without the lapse of time or the giving of notice, or both) in breach or default in any material respect thereunder. The Company has not, except as disclosed in Schedule 5.09(b), received any notice of the intention of any party to provide terminate any such noticeCompany Contract and the Company has not received any claim for indemnification or breach of warranty under a Company Contract within the last two (2) years. Complete and correct copies of all Company Contracts, together with all modifications and amendments thereto, have been made available to Purchaser.
Appears in 1 contract
Contracts. (a) Except as set forth on Section 3.11 Schedule 4.10(a) of the Company Disclosure Schedule (which Schedules:
(i) includes Neither the Company nor any amendmentof its Subsidiaries has employment agreements with its officers or employees (other than setting forth an employment-at will relationship). Neither the Company nor any of its Subsidiaries has any independent contractor or similar agreement, supplement contract or modification to any Contract listed therein and commitment that is not terminable on sixty (ii60) shall not include Contracts that are invoicesdays’ notice or less without penalty, statements of work liability or purchase orders entered into pursuant to the terms of other Contracts listed therein), as of the date hereof, neither premium. Neither the Company nor any of its Subsidiaries is a party to any contract, commitment, agreement, understanding or bound arrangement that provides for any severance pay or other compensation obligations which become payable by any reason of, this Agreement or the consummation of the following Contracts that are Related to the Business:
(i) any Contract with any staffing company, temporary employee agency, professional employer organization or other similar company or agency;transactions contemplated hereby.
(ii) Neither the Company nor any of its Subsidiaries has any collective bargaining agreement or similar Contract union agreements, with an employee representative or labor group representing any Business Employees;respect to its employees.
(iii) Neither the Company nor any Contract of its Subsidiaries is party to any agreement relating to Indebtedness non-competition (whether the Company or any Subsidiary is subject to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on the beneficiary of any of the Transferred Assets or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangements;such obligation).
(iv) any (A) Contract (or group of related Contracts) relating to or regarding Intellectual Property or (B) IT Asset Contract (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee of less than $50,000 in the aggregate or for which Neither the Company nor any of its Subsidiaries has Guaranteed any obligations of other Persons or made less than $50,000 in customized improvements in the aggregate);any agreements to acquire or Guarantee any obligations of other Persons.
(v) Neither the Company nor any Contract of its Subsidiaries has any outstanding loan or advance in excess of $100,000 to any Person; nor is it party to any contract or agreement relating to Indebtedness which prohibits would permit the borrowing by the Company or any of its Subsidiaries from competing of any sum in excess of $1,000,000.
(vi) Neither the Company nor any of its Subsidiaries is a party to any partnership, joint venture or otherwise freely engaging other similar contract, commitment, agreement, understanding or arrangement.
(vii) Neither the Company nor any of its Subsidiaries is a party to any contract, commitment, agreement, understanding or arrangement for the purchase of materials, supplies, goods, services, equipment or assets (A) providing for annual payments by the Company and its Subsidiaries of greater than $500,000, (B) providing for aggregate payments by the Company and its Subsidiaries of greater than $2,500,000, or (C) having a term of greater than one year that is not terminable on 60 days’ notice or less without penalty, liability or premium in excess of $250,000.
(viii) Neither the Business as currently conducted anywhere Company nor any of its Subsidiaries is a party to any sales, distribution or other similar contract, commitment, agreement, understanding or arrangement for the sale by the Company or any of its Subsidiaries of materials, supplies, goods, services, equipment or other assets (A) providing for annual payments to the Company and its Subsidiaries of greater than $500,000, (B) providing for aggregate payments to the Company and its Subsidiaries of greater than $2,500,000, or (C) having a term of greater than one year that is not terminable on 60 days’ notice or less without penalty, liability or premium in excess of $250,000.
(ix) Neither the world Company nor any of its Subsidiaries is a party to any lease or license for any asset (A) providing for annual payments of greater than $500,000 or (B) having a term of greater than one year that is not terminable on 60 days’ notice or less without penalty, liability or premium in excess of $250,000.
(x) Neither the Company nor any material respect of its Subsidiaries is a party to any contract, commitment, agreement, understanding or arrangement relating to the acquisition or disposition of any business (whether by merger, sale of stock, sale of assets or otherwise).
(xi) Neither the Company nor any of its Subsidiaries is a party to any license for the use of Intellectual Property or similar contract, commitment, agreement, understanding or arrangement.
(xii) Neither the Company nor any of its Subsidiaries is a party to any agency, dealer, sales representative, marketing or similar contract, commitment, agreement, understanding or arrangement having a term of greater than one year that otherwise restricts is not terminable on 60 days’ notice or less without penalty, liability or premium in excess of $250,000.
(xiii) Neither the Company nor any activities of its Subsidiaries is a party to any contract, commitment, agreement, understanding or arrangement with any of its Affiliates or any current or former stockholder, officer or director of the Company or any of its Subsidiaries with respect to the Business as currently conducted in any material respect;
(vi) any Contract for the sale of Products or servicesSubsidiaries, in each case, containing “most-favored nation” pricing terms or any exclusive dealing arrangement or any “requirementsaffiliate” Contract;or “associate” of such persons (as such terms are defined in the rules and regulations promulgated under the 1933 Act) (any of the foregoing, a “Related Party”).
(viixiv) Neither the Company nor any Shared Contract;of its Subsidiaries is party to any lease in respect of real property.
(viiixv) Neither the Company nor any Contract with any Material Customer or Material Supplier (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditions), and of its Subsidiaries has any other Contract which involves the payment by material contracts or toagreements. The agreements, performance documents and instruments set forth on Schedule 4.10(a) of services by or for, or the delivery of goods by or to, or capital expenditures by, the Company in excess Disclosure Schedules are referred to herein as “Material Contracts”. True and correct copies of $750,000 in each document or instrument listed on Schedule 4.10(a) of the aggregate over the shorter of: (A) the term of such Contract or (B) the 2019 calendar year;
(A) any Contract relating Company Disclosure Schedules have been provided to ownership of or investments in any business or enterprise and (B) partnership, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar Contract; and
(x) any Contract involving a Governmental EntityParent.
(b) Each Assumed Contract and each Contract disclosed or required to be disclosed Except as set forth on Section 3.11 Schedule 4.10(b) of the Company Disclosure Schedule is a legalSchedules, valid and binding obligation all of the CompanyMaterial Contracts are valid, andbinding, to the Knowledge of the Company, each other party to such Contractin full force and effect, and is enforceable against by the Company, and, to the Knowledge of the Company, each such other party Company and/or its Subsidiaries in accordance with its terms subjecttheir respective terms, in each case, except (i) to the effect of any extent that enforceability may be limited by applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance moratorium or preferential transfers, or similar Laws relating to or other laws affecting the enforcement of creditors’ rights generally and subject, as to enforceability, to the effect of by general principles of equity (equity, regardless of whether such enforceability is considered in a proceeding at law or in equity or at law)and (ii) for such matters that would not reasonably be expected to have, and neither a Company Material Adverse Effect.
(c) Neither the Company nor, to the Knowledge nor any of the Company, any other party to such Contract its Subsidiaries is in material default under or material in breach of such Contractor violation of, and, to the Knowledge Company’s knowledge, no event has occurred which with notice or lapse of the Company, there does not exist any event, condition time or omission that both would constitute such a material default, breach or violation of, any provision of any Material Contract that would reasonably be expected to have a Company Material Adverse Effect. To the Company’s knowledge, no other party is in default under or material in breach (whether by or violation of, and, to the Company’s knowledge, no event has occurred which with notice or lapse of time or notice both would constitute such a default, breach or both) under violation of, any Assumed provision of any Material Contract or any Contract disclosed or required that would reasonably be expected to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1, 2018, the have a Company has not received any written notice of termination or nonrenewal with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge of the Company, no other party to any such Contract intends to provide any such noticeMaterial Adverse Effect.
Appears in 1 contract
Contracts. (a) Except as set forth on Section 3.11 3.17(a) of the Company Disclosure Schedule (which (i) includes any amendment, supplement or modification to any Contract listed therein sets forth a true and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into pursuant to the terms of other Contracts listed therein)complete list, as of the date hereofof this Agreement, neither of the following Contracts:
(i) each Contract to which the Company nor or any of its Subsidiaries is a party to or bound by any of the following Contracts that are Related to the Business:
(i) any Contract with any staffing company, temporary employee agency, professional employer organization or other similar company or agency;
(ii) any collective bargaining agreement or similar Contract with an employee representative or labor group representing any Business Employees;
(iii) any Contract relating to Indebtedness or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any of the Transferred Assets or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangements;
(iv) any (A) Contract (or group restricts in any material respect the ability of related Contracts) relating to or regarding Intellectual Property or (B) IT Asset Contract (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee of less than $50,000 in the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregate);
(v) any Contract which prohibits the Company or any of its Subsidiaries from competing to engage in or otherwise freely engaging in the Business as currently conducted anywhere in the world compete in any material respect business or with any Person in any geographical area, (B) requires the Company or any of its Subsidiaries to conduct any business on a “most favored nations” basis with any third party; (C) provides for any Person to be the exclusive provider of any product or service to the Company or any Subsidiary or that otherwise restricts involves the granting by the Company or any activities Subsidiary to any Person of exclusive rights of any kind; (D) grants to any Person a right of first refusal, right of first negotiation, right of first offer or similar rights on the sale, disposition or license of any asset, property or part of the business of the Company or any of its Subsidiaries or (E) contains any “take or pay” or other obligations of the Company or any of its Subsidiaries with respect to any minimum purchase requirements;
(ii) each Contract to which the Business as currently conducted Company or any of its Subsidiaries is a party that provides for payments to or from the Company or any of its Subsidiaries in excess of $5,000,000 in the aggregate after the date of this Agreement;
(iii) each Contract creating, guaranteeing or securing Indebtedness of the Company or any of its Subsidiaries in excess of $15,000,000 (other than Indebtedness solely between the Company and any of its wholly owned Subsidiaries or solely between the Company’s wholly owned Subsidiaries);
(iv) each Contract to which the Company or any of its Subsidiaries is a party with respect to the creation, formation, governance or control of any material respectpartnerships, joint ventures, strategic alliance, profit sharing arrangements, collaborations, co-promotions, joint research, joint development or similar arrangements with third parties;
(v) each Contract to which the Company or any of its Subsidiaries is a party that (A) relates to the acquisition, directly or indirectly (by merger, sale of equity, sale of assets, capital contribution or otherwise), of any equity or other securities, assets, business, unit or division of any Person with a total consideration of more than $5,000,000 in the aggregate, (B) relates to the disposition, directly or indirectly (by merger, sale of equity, sale of assets, capital contribution or otherwise), of any assets (except assets disposed of in the ordinary course of business), business unit or division of the Company or its Subsidiaries that is either material to the Company or its Subsidiaries or has a total consideration of more than $5,000,000 in the aggregate, or (C) relates to the disposition directly or indirectly (by merger, sale of equity, sale of assets, capital contribution or otherwise), of any equity or other securities of the Company or its Subsidiaries, in each case whether or not consummated;
(vi) any each Contract for not entered into in the sale ordinary course of Products or services, in each case, containing “most-favored nation” pricing terms business that requires the Company or any exclusive dealing arrangement of its Subsidiaries to make any advance, loan or commitment therefor or provide any credit support or guarantee for or any “requirements” Contractcapital contribution to, or other investment in, any Person in excess of $5,000,000;
(vii) each indemnification or similar contract with Affiliates, managers, officers or directors of the Company or any Shared Contractof its Subsidiaries;
(viii) each Contract pursuant to which the Company or any of its Subsidiaries has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of $5,000,000;
(ix) each Company IP Agreement that is material to the business of the Company and its Subsidiaries;
(x) each Contract that (A) is a settlement or similar agreement with any Governmental Authority or other Person in respect of any matter that is material to the business, assets or liabilities of the Company or its Subsidiaries pursuant to which the Company or any of its Subsidiaries will be required to pay consideration in excess of $1,000,000 after the date of this Agreement, or (B) provides for any material injunctive or similar equitable obligations on the Company or any of its Subsidiaries that will remain in effect after the date of this Agreement;
(xi) each Contract that relates to any outstanding commitment for capital or similar expenditures by the Company or its Subsidiaries in excess of $5,000,000 over the life of such Contract;
(xii) each Contract that is for the employment or engagement of any directors, employees or individual independent contractors of the Company or any of its Subsidiaries at annual base compensation in excess of $200,000;
(xiii) each Contract with any Material Customer or Material Supplier a Company Affiliated Person;
(excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditions), xiv) each Collective Bargaining Agreement;
(xv) each Lease and any other Contract which involves relating to Leased Real Property;
(xvi) each material Contract that requires consent from the payment by counterparty or, payments upon a “change in control” (or to, performance other similar concepts) of services by or for, or the delivery of goods by or to, or capital expenditures by, the Company or its Subsidiaries, including in connection with any of the Transactions;
(xvii) each Contract between any Person beneficially owning 5% or more of the outstanding shares of Company Common Stock (or its Affiliates), on the one hand, and the Company or any of its Subsidiaries, on the other hand (other than any Company Plan);
(xviii) each Contract (a) for amounts in excess of $750,000 500,000 required to comply with Nuclear Law (other than those with ANI or ▇▇▇▇); or (b) otherwise entered into with or for the benefit of a Governmental Authority (other than contracts solely for the provision of electricity), including the Company’s Standard Contracts for Spent Fuel Disposal, the NRC Support Agreement, and the agreements governing the Decommissioning Trusts;
(xix) each Contract for the transportation, disposal, storage, recycling, or the arrangement of such activities with respect to Hazardous Materials or Nuclear Materials that would reasonably be expected to result in the aggregate over the shorter of: payments in excess of $1,000,000 per year;
(xx) each Contract with any Governmental Authority;
(xxi) each Fossil Divestment Agreement; and
(xxii) (A) each Contract, including any pricing schedule, with Major Customers or Major Suppliers, other than purchase orders entered into in the term ordinary course of such Contract business and issued under a general or master agreement, or (B) any other Contract with any distributor, agent, broker, dealer, sales representative or authorized reseller of the 2019 calendar year;
(A) any Contract relating to ownership of Company Products or investments in any business or enterprise and (B) partnership, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar Contract; and
Services which (x) cannot by their terms be canceled by the Company or any of its Subsidiaries that is a party thereto without payment or penalty upon notice of sixty (60) days or less and (y) involve payments in excess of $5,000,000 in any twelve (12)-month period. Each such Contract involving described in clauses (i) through (xxii) above (whether or not set forth on Section 3.17(a) of the Company Disclosure Schedule and whether or not entered into or modified after the date of this Agreement), is referred to herein as a Governmental Entity“Company Material Contract”.
(b) Each Assumed Company Material Contract (other than any Company Material Contract that has expired or been terminated in accordance with its terms) is valid, and each Contract disclosed binding on the Company and any of its Subsidiaries to the extent the Company or required to be disclosed on Section 3.11 of the Disclosure Schedule such Subsidiary is a legalparty thereto, valid as applicable, and binding obligation of the Company, and, to the Knowledge of the Company, each other party to such Contractthereto, and is in full force and effect and enforceable against the Company, and, to the Knowledge of the Company, each such other party in accordance with its terms subject, in each case, (subject to the effect of any applicable Laws relating Bankruptcy and Equity Exception), except where the failure to bankruptcybe valid, reorganizationbinding, insolvencyenforceable and in full force and effect, moratoriumwould not, fraudulent conveyance individually or preferential transfersin the aggregate, or similar Laws relating reasonably be expected to or affecting creditors’ rights generally and subject, as to enforceability, be material to the effect Company and its Subsidiaries, taken as a whole. Each of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and neither the Company norand its Subsidiaries, and, to the Knowledge of the Company, any other party thereto, has performed all obligations required to such Contract is in material default or material breach of such be performed by it under each Company Material Contract, andexcept where such noncompliance would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole. No event has occurred that, with notice or lapse of time or both, would constitute a breach or default pursuant to any Company Material Contract by the Company or any of its Subsidiaries or, to the Knowledge of the Company, there does not exist any eventother party thereto, condition or omission except for such breaches and defaults that would constitute such not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a material default whole. No party to any Company Material Contract has (i) exercised any termination rights with respect thereto, or (ii) given written notice of any material breach with respect to, or intent not to renew, any Company Material Contract, in the case of clauses (whether by lapse of time i) and (ii) that would, individually or notice or both) under any Assumed Contract or any Contract disclosed or required in the aggregate, reasonably be expected to be disclosed on Section 3.11 material to the Company and its Subsidiaries, taken as a whole. Prior to the date of the Disclosure Schedule. Since January 1, 2018this Agreement, the Company has not received any written notice made available to Parent correct and complete copies of termination or nonrenewal with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 all Company Material Contracts as of the Disclosure Schedule anddate of this Agreement.
(c) Prior to the date of this Agreement, the Company has made available to Parent correct and complete copies of each Fossil Divestment Agreement.
(d) There is no setoff amount, counterclaim, or other circumstance that would diminish or adversely affect the availability of litigation or settlement recoveries from the United States or the Department of Energy in connection with the Standard Contracts for Spent Fuel Disposal applicable to the Nuclear Sites. The Company or one of its Subsidiaries is the sole private party to the Standard Contracts for Spent Fuel Disposal and no other Person has or could reasonably be expected to assert any rights, directly or indirectly, to settlement or litigation proceeds in connection with the Knowledge Contracts for Standard Spent Fuel Disposal applicable to the Nuclear Sites.
(e) There is no setoff amount, counterclaim, or other circumstance that would diminish or adversely affect the availability of settlement recoveries from the Company, United States or the Department of Energy in connection with the Spent Fuel Settlement Agreement for damages incurred by the Company or one of its Subsidiaries. The Company or one of its Subsidiaries is the sole private party to the Spent Fuel Settlement Agreement and no other party Person has or could reasonably be expected to assert any such Contract intends rights, directly or indirectly, to provide any such noticesettlement or litigation proceeds in connection with the Spent Fuel Settlement Agreement for damages incurred by one of its Subsidiaries.
Appears in 1 contract
Sources: Transaction Agreement (Vistra Corp.)
Contracts. (a) Except as set forth on Section Schedule 3.11 of the Disclosure Schedule Schedules contains a true, complete and accurate list (which (i) includes any amendment, supplement or modification to any Contract listed therein and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into pursuant by reference to the terms of other Contracts listed therein), applicable subsection hereof) as of the date hereof, neither the Company nor any of its Subsidiaries is a party to or bound by any of the following Contracts that are Related to the Businessthis Agreement of:
(ia) each Contract that requires the Company to pay, or entitles the Company to receive, or could result in obligations of the Company in the amount of, in the aggregate, $100,000 or more in any Contract with any staffing company, temporary employee agency, professional employer organization or other similar company or agencycalendar year;
(iib) any collective bargaining agreement or similar each Contract with an employee representative or labor group representing any Business Employees;
(iii) any Contract relating to Indebtedness or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any of the Transferred Assets or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangements;
(iv) any (A) Contract (or group of related Contracts) relating to or regarding Intellectual Property or (B) IT Asset Contract (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee of less than $50,000 in the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregate);
(v) any Contract which prohibits that restricts the Company or any of its Subsidiaries present or future Affiliates from competing with or otherwise freely engaging in the Business as currently conducted any business activity anywhere in the world or soliciting for employment, hiring or employing any Person;
(c) each Contract to acquire or dispose (by merger, purchase or sale of assets or stock or otherwise) of material assets, as to which the Company has continuing material obligations or material rights;
(d) each Contract concerning a joint venture, strategic alliance, collaboration or partnership agreements, or the sharing of profits;
(e) each Contract whereby the Company leases, subleases, licenses, or otherwise holds any rights to use or occupy any interest in real property (the “Real Property Leases”);
(f) each Contract with respect to Indebtedness;
(g) each Contract with any material respect Governmental Authority;
(h) each Contract pursuant to which the Company leases, is licensed or that otherwise restricts authorized to use or otherwise commercialize or exploit any activities Intellectual Property of any other Person or which otherwise affects the ability of the Company to use, commercialize or otherwise exploit any of the Company’s Intellectual Property (including a covenant not to ▇▇▇) material to its Subsidiaries with respect to the Business business as currently conducted in any material respect(excluding Immaterial Software Licenses);
(vii) each Contract pursuant to which the Company leases, licenses or otherwise authorizes another Person to use, distribute, sell, resell or incorporate any of the Company’s Intellectual Property;
(j) each Contract for the sale of Products that contains any fixed or servicesindexed pricing, in each case, containing “most-favored nation” pricing or similar pricing terms or any exclusive dealing arrangement provisions regarding minimum volumes, volume discounts, or any “requirements” Contractrebates;
(viik) any Shared Contracteach Collective Bargaining Agreement;
(viiil) each Contract with respect to bonus or other incentive compensation, deferred compensation, equity purchase award, salary continuation, pension, profit sharing or retirement plan, or any other Employee Benefit Plan or arrangement;
(m) each Contract with any Material Customer current Service Provider as well as each Contract with any firm or Material Supplier (excluding ordinary course task orders other organization providing commission or service estimates containing terms and conditions materially consistent with sales-based services to the Company’s standard terms and conditions), and any other Contract which involves the payment by or to, performance of services by or for, or the delivery of goods by or to, or capital expenditures by, the Company in excess of $750,000 in the aggregate over the shorter of: (A) the term of such Contract or (B) the 2019 calendar year;
(An) each Contract with any former Service Provider as well as each Contract relating to ownership of or investments in with any business or enterprise and (B) partnership, joint venture, co-owner, limited liability company collaboration or strategic alliance firm or other organization that provided commission or sales-based services to the Company under which the Company, has any Liability or other obligation;
(o) each Contract with a Related Party;
(p) each Contract that is not terminable by the Company with notice of 90 days or less without penalty;
(q) each Contract that grants any Person other than the Company any rights of first refusal, rights of first negotiation or similar Contractrights;
(r) each Contract that contains indemnification obligations of the Company; and
(xs) any Contract involving a Governmental Entity.
(b) Each Assumed Contract and each Contract disclosed not made in the ordinary course of business consistent with past practice or that is otherwise material. True, complete and accurate copies of the Contracts listed or required to be disclosed listed on Section Schedule 3.11 of the Disclosure Schedule is a legalSchedules, valid together with all modifications and binding obligation of the Companyamendments thereto, andhave previously been delivered or made available to Parent, or, to the Knowledge extent any of such Contracts are oral, Schedule 3.11 of the Company, each other party to such Contract, and is enforceable against the Company, and, to the Knowledge Disclosure Schedules contains a description of the Companymaterial terms thereof. Each such Contract is in full force and effect, each such other party is valid, binding and enforceable in accordance with its terms subject, in each case, to the effect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law)terms, and neither the Company noris not subject to any claims, to the Knowledge of the Companycharges, any other party to such Contract is in material default set-offs or material breach of such Contract, and, to the Knowledge of the Company, there does not exist any event, condition or omission that would constitute such a material default or material breach (whether by lapse of time or notice or both) under any Assumed Contract or any Contract disclosed or required to be disclosed defenses. Except as set forth on Section Schedule 3.11 of the Disclosure Schedule. Since January 1, 2018Schedules, the Company is not in breach or default, nor has not received any written event occurred which with the giving of notice or the passage of termination time or nonrenewal with respect both would constitute a breach or default by the Company, of, or which would give rise to any Assumed right of notice, modification, acceleration, payment, cancellation or termination of or by another party under, or in any manner release any party thereto from any obligation under, any such Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge of the Company, no other party is in breach or default, and no event has occurred which with the giving of notice or the passage of time or both would constitute a breach or default by any other party, or which would give rise to any right of notice, modification, acceleration, payment, cancellation or termination of or by the Company, under, or in any manner release any party thereto from any obligation under, any such Contract. Since December 31, 2018, the Company has not received any notice or communication regarding any violation or breach of, or default under any such Contract. The Company has not been notified by any counterparty to any such Contract that such counterparty is terminating, modifying, repudiating or rescinding, or intends to provide any terminate, modify, repudiate or rescind such noticeContract.
Appears in 1 contract
Contracts. (a) Except as set forth on Section 3.11 For purposes of this Agreement, each of the Disclosure Schedule (following shall be deemed to constitute a “Parent Material Contract”, which (i) includes any amendmentParent Material Contracts and all amendments thereto, supplement or modification to any Contract listed therein and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into pursuant to the terms of other Contracts listed therein), in each case as of the date hereof, neither the Company nor any of its Subsidiaries is a party to or bound by any this Agreement are listed on Schedule 3.7 of the following Contracts that are Related Parent Disclosure Letter and copies of which have been made been made available to the BusinessCompany:
(i) any ▇▇▇▇ Corporation Contract with any staffing company, temporary employee agency, professional employer organization or other similar company or agencythat is required by the rules and regulations of the SEC to be filed as an exhibit to the Parent SEC Documents;
(ii) any collective bargaining agreement ▇▇▇▇ Corporation Contract relating to (A) the employment of any employee or similar Contract with an employee representative the services of any independent contractor or labor group representing consultant and pursuant to which any Business Employeesof the ▇▇▇▇ Corporations is or may become obligated to make any severance or termination payment in excess of $50,000 or (B) any bonus, relocation or other payment in excess of a material amount to any current or former employee, independent contractor, consultant, officer or director (other than payments, in the case of (A) and (B) above, in respect of salary or pursuant to standard severance policies, existing bonus plans or standard relocation policies of Parent which are listed on Schedule 3.7(a) or Schedule 3.12(a) of the Parent Disclosure Letter);
(iii) any ▇▇▇▇ Corporation Contract relating to Indebtedness the acquisition, transfer, development, sharing or license of any material Proprietary Asset (except for any ▇▇▇▇ Corporation Contract pursuant to mortgagingwhich (A) any material Proprietary Asset is licensed to the ▇▇▇▇ Corporations under any third party software license generally available for sale to the public, pledging or otherwise placing a Lien (other than a Permitted LienB) on any material Proprietary Asset is licensed by any of the Transferred Assets or letter ▇▇▇▇ Corporations to any customer in connection with the sale of credit arrangements, surety or performance bonds, guarantee, support or similar arrangementsany product in the ordinary course of business consistent with prior practice);
(iv) any (A) ▇▇▇▇ Corporation Contract (with any officer, director or group affiliate of related Contracts) relating to or regarding Intellectual Property or (B) IT Asset Contract (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee of less than $50,000 in the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregate)Parent;
(v) any ▇▇▇▇ Corporation Contract which prohibits the Company creating or relating to any partnership or joint venture or any sharing of its Subsidiaries from competing revenues, profits, losses, costs or otherwise freely engaging in the Business as currently conducted anywhere in the world in any liabilities, under which a ▇▇▇▇ Corporation has continuing material respect or that otherwise restricts any activities of the Company or any of its Subsidiaries with respect to the Business as currently conducted in any material respectobligations;
(vi) any ▇▇▇▇ Corporation Contract for that involves the sale payment or expenditure by a ▇▇▇▇ Corporation in excess of Products or services, in each case, containing “most-favored nation” pricing terms or any exclusive dealing arrangement or any “requirements” Contract$50,000 that may not be terminated by such ▇▇▇▇ Corporation (without penalty) within sixty (60) days after the delivery of a termination notice by the applicable ▇▇▇▇ Corporation;
(vii) any Shared Contract▇▇▇▇ Corporation Contract contemplating or involving the payment or delivery of cash or other consideration to a ▇▇▇▇ Corporation in excess of $50,000;
(viii) any ▇▇▇▇ Corporation Contract with imposing any Material Customer restriction on the right or Material Supplier (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditions), and ability of any other Contract which involves the payment by or to, performance of services by or for, or the delivery of goods by or to, or capital expenditures by, the Company in excess of $750,000 in the aggregate over the shorter of: ▇▇▇▇ Corporation to (A) the term of such Contract or compete with any other Person, (B) the 2019 calendar year;
(A) acquire any Contract relating material product or other material asset or any services from any other Person, sell any material product or other material asset to ownership of or investments perform any services for any other Person or transact business or deal in any business other manner with any other Person, or enterprise and (BC) partnership, joint venture, co-owner, limited liability company collaboration develop or strategic alliance or other similar Contractdistribute any material technology; and
(xix) any other ▇▇▇▇ Corporation Contract, if a breach of such ▇▇▇▇ Corporation Contract involving could reasonably be expected to have a Governmental EntityMaterial Adverse Effect on the ▇▇▇▇ Corporations.
(b) Each Assumed Parent Material Contract and each Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule is a legal, valid and binding obligation of the Company, and, to the Knowledge of the Company, each other party to such Contractin full force and effect, and is enforceable against the Company, and, to the Knowledge of the Company, each such other party in accordance with its terms subject, in each case, subject to the effect (A) Legal Requirements of any applicable Laws general application relating to bankruptcy, reorganizationinsolvency and the relief of debtors, insolvencyand (B) rules of law governing specific performance, moratoriuminjunctive relief and other equitable remedies, fraudulent conveyance except to the extent they have expired in accordance with their terms and except where the failure to be in full force and effect, individually or preferential transfersin the aggregate, would not reasonably be expected to be material to the ▇▇▇▇ 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 ▇▇▇▇ 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) None of the ▇▇▇▇ Corporations has materially violated or breached, or similar Laws relating committed any material default under, any Parent Material Contract. To Parent’s knowledge, no other Person has materially violated or breached, or committed any material default under, any Parent Material Contract.
(d) To Parent’s knowledge, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) could reasonably be expected to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered i) result in a proceeding in equity material violation or at law), and neither the Company nor, to the Knowledge breach of any provision of any Parent Material Contract by any of the Company, ▇▇▇▇ Corporations; (ii) give any other party Person the right to such Contract is in material default or material breach of such Contract, and, to the Knowledge of the Company, there does not exist any event, condition or omission that would constitute such declare a material default or material breach (whether by lapse of time or notice or both) exercise any remedy under any Assumed Contract Parent Material Contract; (iii) give any Person the right to accelerate the maturity or performance of any Contract disclosed Parent Material Contract; or required (iv) give any Person the right to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1cancel or terminate, 2018or modify in any material respect, the Company has not received any written notice of termination or nonrenewal with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge of the Company, no other party to any such Contract intends to provide any such notice.Parent Material Contract
Appears in 1 contract
Contracts. (a) Except as set forth on Section 3.11 As of the Disclosure Schedule (which (i) includes date of this Agreement, none of the Company or any amendment, supplement or modification Company Subsidiary is a party to any Contract listed therein and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the terms Securities Act (a “Filed Company Contract”) that has not been so filed.
(b) Section 4.14(b) of other Contracts listed therein)the Company Disclosure Letter sets forth, as of the date hereofof this Agreement, neither the Company nor any of its Subsidiaries is a party to or bound by any of the following Contracts that are Related to the Business:
(i) any Contract with any staffing companytrue and complete list, temporary employee agency, professional employer organization or other similar company or agency;
(ii) any collective bargaining agreement or similar Contract with an employee representative or labor group representing any Business Employees;
(iii) any Contract relating to Indebtedness or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any of the Transferred Assets or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangements;
(iv) any (A) Contract (or group of related Contracts) relating to or regarding Intellectual Property or (B) IT Asset Contract (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee of less than $50,000 in the aggregate or for which and the Company has made less than $50,000 in customized improvements in the aggregate);
available to Parent true and complete copies, of: (vi) any each Contract to which prohibits the Company or any of its the Company Subsidiaries from competing or otherwise freely engaging in the Business as currently conducted anywhere in the world is a party that restricts in any material respect the ability of the Company or that otherwise restricts any activities Company Subsidiaries to compete in any line of business or geographic area or market segment (including any license, collaboration, agency or distribution agreements); (ii) any Contract or series of related Contracts of the Company or any of the Company Subsidiaries (A) relating to Indebtedness, or (B) evidencing any guarantee of obligations of any Person in excess of $500,000, other than any such agreement solely between or among the Company and the wholly owned Company Subsidiaries or between or among wholly owned Company Subsidiaries; (iii) each partnership, joint venture or similar Contract to which the Company or any of the Company Subsidiaries is a party relating to the formation, creation, operation, management or control of any partnership or joint venture or to the ownership of any equity interest in any entity or business enterprise other than the Company Subsidiaries or securities held for investment by the Company or the Company Subsidiaries in the ordinary course of business or any Contract involving a sharing of revenues, profits, losses, costs or liabilities by the Company or any of its Subsidiaries with respect any other Person; (iv) each Contract between the Company or any of its Subsidiaries, on the one hand, and, on the other hand, any (A) present executive, officer or director of either the Company or any of the Company Subsidiaries, (B) record or beneficial owner of more than 5% of the shares of Company Common Stock outstanding as of the date hereof or (C) to the Business Knowledge of the Company, any affiliate of any such officer, director or owner (other than the Company or any of the Company Subsidiaries), in each case, other than those Contracts filed as currently conducted in exhibits (including exhibits incorporated by reference) to any Filed Company SEC Documents; (v) each Contract relating to the disposition or acquisition by the Company or any of the Company Subsidiaries with material obligations remaining to be performed or material liabilities continuing after the date of this Agreement, if any material respect;
business or any material amount of assets; (vi) any Contract that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act; (vii) any Contract that provides for any payments that are conditioned, in whole or in part, on a change of control of the sale Company or any Company Subsidiary; (viii) any material license, sublicense, option or other Contract relating to any Intellectual Property; (ix) any Contract that provides for any “most favored nation” provision or equivalent preferential pricing terms, exclusivity or similar obligations to which the Company or any Company Subsidiary is subject which is material to the Company and the Company Subsidiaries taken as a whole; (x) any management, service, consulting or similar Contract that is material to the operation of Products the Company and the Company Subsidiaries, taken as a whole; (xi) any hedging, derivative or servicessimilar Contract (including interest rate, currency or commodity swap agreements, cap agreements, collar agreements and any similar Contract designed to protect a person against fluctuations in interest rates, currency exchange rates or commodity prices); (xii) any Contracts (A) between the Company or any Company Subsidiary and any Governmental Entity, except for sales to a Governmental Entity in the ordinary course of business or (B) between the Company or any Company Subsidiary, as a subcontractor and any prime contractor, to any Governmental Entity; provided that the following Contracts shall not be required to be listed on Section 4.14(b) of the Company Disclosure Letter, shall not be required to made available to Parent pursuant to this Section 4.14(b), and shall not be deemed a “Material Contract” for any purposes hereunder (whether or not a Filed Company Contract): (1) any Company Benefit Plan, (2) any Contract between the Company, on the one hand, and one or more Company Subsidiaries, on the other hand, or between one or more Company Subsidiaries, or (3) any Real Estate Lease (any such Contract in clauses (1) through (3), an “Excluded Contract”). Each Contract described in this Section 4.14(b) and each Filed Company Contract, in each case, containing other than any Excluded Contract, is referred to herein as a “most-favored nation” pricing terms or any exclusive dealing arrangement or any “requirements” Material Contract;
(vii) any Shared Contract;
(viii) any Contract with any Material Customer or Material Supplier (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditions), and any other Contract which involves the payment by or to, performance of services by or for, or the delivery of goods by or to, or capital expenditures by, the Company in excess of $750,000 in the aggregate over the shorter of: (A) the term of such Contract or (B) the 2019 calendar year;
(A) any Contract relating to ownership of or investments in any business or enterprise and (B) partnership, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar Contract; and
(x) any Contract involving a Governmental Entity”.
(bc) Each Assumed Material Contract and each Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule is a legalvalid, valid binding and binding legally enforceable obligation of the CompanyCompany or one of the Company Subsidiaries, as the case may be, and, to the Knowledge of the Company, each other party to such Contract, and is enforceable against the Company, and, to the Knowledge of the Company, other parties thereto and each such other party in accordance with its terms subject, in each case, to the effect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and neither the Company nor, to the Knowledge of the Company, any other party to such Material Contract is in material default or material breach of such Contract, and, to the Knowledge full force and effect. None of the Company, there does not exist Company or any event, condition of the Company Subsidiaries has received any written claim of breach or omission that would constitute such a material default under or material breach cancellation of any Material Contract and none of the Company or any of the Company Subsidiaries is (whether by with or without notice or lapse of time or notice time, or both) in breach or default under any Assumed such Material Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1, 2018, the Company has not received any written notice of termination or nonrenewal with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge of the Company, no other party to any such Material Contract is (with or without notice or lapse of time, or both) in breach or default thereunder. To the Knowledge of the Company, neither the Company nor any Company Subsidiary has received, as of date of this Agreement, any written notice from any Person that such Person intends to provide terminate or not renew any such noticeMaterial Contract.
Appears in 1 contract
Sources: Merger Agreement (Mocon Inc)
Contracts. (a) Except as set forth on Section 3.11 Schedule 2.12(A) describe all of the Disclosure Schedule (following to which the Company or any of its subsidiaries is a party as of the date of this Agreement (i) includes any amendment, supplement or modification to any Contract listed therein and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into pursuant to require active performance by the terms of other Contracts listed therein), Company as of the date hereof, neither and (ii) which are material, whether active or not, that were entered into after January 1, 1999 and (iii) other material contracts of which the current officers of the Company nor any of its Subsidiaries is a party to are aware (without checking files or bound by any of SEC filings) ((i) and (ii) are collectively, the following Contracts that are Related to the Business:"Company Contracts"):
(i) any Contract with any staffing companyall agreements, temporary employee agencycontracts, professional employer organization leases or other similar company or agencybinding commitments;
(ii) any collective bargaining indenture, mortgage, promissory note, loan agreement or similar Contract with an employee representative other agreement or labor group representing commitment for the borrowing of money by the Company or any Business Employeesof its subsidiaries;
(iii) any Contract relating lease, sublease or other agreement pursuant to Indebtedness which it is a lessee of or to mortgaging, pledging holds or otherwise placing a Lien (other than a Permitted Lien) on operates any of the Transferred Assets real or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangementspersonal property owned by any third party;
(iv) any (A) Contract (option or group of related Contracts) relating other executory agreement or other agreement with remaining obligations thereunder to purchase or regarding Intellectual Property acquire any interest in assets or (B) IT Asset Contract (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee of less than $50,000 in the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregate)property;
(v) any Contract which prohibits the Company option or other executory agreement or other agreement with remaining obligations thereunder to sell or dispose of any of its Subsidiaries from competing interest in assets or otherwise freely engaging in the Business as currently conducted anywhere in the world in any material respect or that otherwise restricts any activities of the Company or any of its Subsidiaries property other than stock option agreements with respect employees, independent contractors and directors pursuant to the Business as currently conducted in any material respectCompany's stock option plans;
(vi) any Contract for contract or agreement creating a joint venture or similar arrangement by which the sale of Products assets, properties, rights, or services, in each case, containing “most-favored nation” pricing terms or any exclusive dealing arrangement or any “requirements” Contractbusiness is materially affected;
(vii) any Shared Contractguaranty, keepwell, makewhole or similar agreement of or with respect to the obligations of third parties;
(viii) any Contract with any Material Customer or Material Supplier (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditions), and any other Contract agreement which involves the payment by or to, performance of services by or for, or the delivery of goods by or to, or capital expenditures by, restricts the Company in excess of $750,000 from doing business anywhere in the aggregate over world or limits the shorter of: (A) the term of such Contract or (B) the 2019 calendar yearbusiness in which it may engage;
(Aix) any Contract relating agreement or arrangement under which the Company agrees to ownership indemnify any person or to share Tax liability of or investments in any business or enterprise and (B) partnership, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar Contract; andperson;
(x) any Contract involving a Governmental Entitylicense of material Company Intellectual Property (as defined in Section 2.14) (including use of the name of the Company or any similar name) of or by the Company other than in the ordinary course of business;
(xi) any contracts for insurance; and
(xii) any contract or agreement under which the Company has the obligation to issue or sell any security.
(b) Each Assumed Company Contract and each Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule is a legalvalid, valid binding and binding enforceable obligation of the Company, and, to the Knowledge of the Company, each other party to such Contract, and is enforceable against the Company, and, to the Knowledge of the Company, each such other party in accordance with its terms subject, in each case, to the effect of any or parties thereto (except as enforceability may be limited by applicable Laws relating to bankruptcy, insolvency, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or transfer and similar Laws laws of general applicability relating to or affecting creditors’ rights generally and subject' rights, as to enforceabilityor by general equity principles, to the effect of general including principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at lawcommercial reasonableness, good faith and fair dealing), and neither each Company Contract is in full force and effect.
(c) Neither the Company nor, to the Knowledge of the Company's knowledge, any other party to such Contract thereto, is in material default or material breach of such Contract, and, to the Knowledge of the Company, there does not exist any event, condition or omission that would constitute such a material default or material breach (whether by lapse of time or notice or both) under any Assumed term of any Company Contract or has repudiated any Contract disclosed or required to be disclosed on Section 3.11 term of the Disclosure Schedule. Since January 1, 2018, the any Company Contract.
(d) The Company has not received any written notice of termination or nonrenewal cancellation with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule andCompany Contract, to the Knowledge of the Company, and no other party to a Company Contract plans to terminate or cancel any such Contract intends to provide any such noticeagreement.
Appears in 1 contract
Contracts. (a) Except as set forth on Section 3.11 As of the Disclosure Schedule (which (i) includes date of this Agreement, none of the Company or any amendment, supplement or modification Company Subsidiary is a party to any Contract listed therein and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the terms Securities Act (a “Filed Company Contract”) that has not been so filed.
(b) Section 4.14(b) of other Contracts listed therein)the Company Disclosure Letter sets forth, as of the date hereofof this Agreement, neither a true and complete list, and the Company nor has made available to Parent true and complete copies, of the following Contracts to which the Company or any Company Subsidiary is a party: (i) each Contract that restricts in any material respect the ability of the Company or any Company Subsidiaries to compete in any line of business or geographic area; (ii) each Contract pursuant to which $5,000,000, individually, of Indebtedness (other than any Indebtedness described in clause (viii) of the definition of Indebtedness) of the Company or any of the Company Subsidiaries is outstanding or may be incurred by its terms, other than any such agreement solely between or among the Company and the wholly owned Company Subsidiaries or between or among wholly owned Company Subsidiaries; (iii) each Contract that is an employment or consulting agreement with any executive officer or other employee of the Company or any Company Subsidiary or member of the Company Board earning an annual salary from the Company or any Company Subsidiary in excess of $250,000; (iv) partnership, joint venture or similar Contract to which the Company or any of the Company Subsidiaries is a party to or bound by any of the following Contracts that are Related relating to the Business:
(i) formation, creation, operation, management or control of any Contract with any staffing company, temporary employee agency, professional employer organization partnership or other similar company or agency;
(ii) any collective bargaining agreement or similar Contract with an employee representative or labor group representing any Business Employees;
(iii) any Contract relating to Indebtedness joint venture or to mortgaging, pledging the ownership of any equity interest in any entity or otherwise placing a Lien (business enterprise other than a Permitted Lien) on any of the Transferred Assets Company Subsidiaries or letter of credit arrangements, surety securities held for investment by the Company or performance bonds, guarantee, support or similar arrangements;
(iv) any (A) Contract (or group of related Contracts) relating to or regarding Intellectual Property or (B) IT Asset Contract (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee of less than $50,000 the Company Subsidiaries in the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregate);
Ordinary Course of Business; (v) any except for Contracts of a type contemplated by clause (iii), each material Contract which prohibits between the Company or any of its Subsidiaries from competing Subsidiaries, on the one hand, and, on the other hand, any (A) present executive officer or otherwise freely engaging in the Business as currently conducted anywhere in the world in any material respect or that otherwise restricts any activities director of either the Company or any of its Subsidiaries with respect the Company Subsidiaries, (B) record or beneficial owner of more than 5% of the shares of Company Common Stock outstanding as of the date hereof or (C) to the Business as currently conducted in Knowledge of the Company, any material respect;
affiliate of any such officer, director or owner (vi) other than the Company or any Contract for of the sale of Products or servicesCompany Subsidiaries), in each case, containing “most-favored nation” pricing terms other than those Contracts filed as exhibits (including exhibits incorporated by reference) to any Filed Company SEC Documents; (vi) each Contract entered into since January 1, 2009 relating to the disposition or acquisition by the Company or any exclusive dealing arrangement or any “requirements” Contract;
(vii) any Shared Contract;
(viii) any Contract with any Material Customer or Material Supplier (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditions), and any other Contract which involves the payment by or to, performance of services by or for, or the delivery of goods by or to, or capital expenditures by, the Company Subsidiaries of any business (whether by stock sale, asset sale or merger) (A) for aggregate consideration in excess of $750,000 in the aggregate over the shorter of: (A) the term of such Contract 10,000,000 or (B) that contain unpaid “earn-out” or similar purchase price obligations in excess of $2,500,000 in the 2019 calendar year;
case of each of clause (A) any Contract relating to ownership of or investments in any business or enterprise and (B), other than acquisitions or dispositions of inventory, properties and other assets in the Ordinary Course of Business; (vii) partnershipeach Contract pursuant to which the Company or any Company Subsidiary licenses to or from a third party any material Intellectual Property Rights, joint ventureexcept licenses for Off the Shelf Software, co-owner(viii) except for Contracts of a type contemplated by clause (vi), limited liability company collaboration each Contract (or strategic alliance series of related Contracts) for the purchase or sale of materials, supplies, goods, services, equipment or other assets providing for annual payments by the Company and the Company Subsidiaries or to the Company and the Company Subsidiaries, respectively, of $4,000,000 and which is not terminable by either party on less than 60 days’ written notice without material penalty and (ix) each Contract that grants to any Person a most favored nation or similar right against the Company or any Company Subsidiary that is material to the Company and the Company Subsidiaries (taken as a whole); provided that the following Contracts shall not be required to be listed on Section 4.14(b) of the Company Disclosure Letter, shall not be required to made available to Parent pursuant to this Section 4.14(b), and shall not be deemed a “Material Contract; and
” for any purposes hereunder (xwhether or not a Filed Company Contract): (1) any Company Benefit Plan, (2) any Contract involving between the Company, on the one hand, and one or more Company Subsidiaries, on the other hand, or between one or more Company Subsidiaries, and (3) any Real Estate Lease (any such Contract in clauses (1), (2) and (3), an “Excluded Contract”). Each Contract described in this Section 4.14(b) and each Filed Company Contract, in each case, other than any Excluded Contract, is referred to herein as a Governmental Entity“Material Contract.”
(bc) Each Assumed Except for matters which, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect, (i) each Material Contract and each Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule is a legalvalid, valid binding and binding legally enforceable obligation of the CompanyCompany or one of the Company Subsidiaries, as the case may be, and, to the Knowledge of the Company, each other party to such Contract, and is enforceable against the Company, and, to the Knowledge of the Companyother parties thereto, each such other party in accordance with its terms subjectexcept, in each case, to the effect of any applicable Laws relating to as enforcement may be limited by bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, reorganization or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of by general principles of equity and (regardless of whether ii) each such enforceability is considered in a proceeding in equity or at law), and neither the Company nor, to the Knowledge of the Company, any other party to such Material Contract is in material default full force and effect, except, in the case of clauses (i) or material breach of such Contract(ii), and, to the Knowledge of the Company, there does not exist any event, condition or omission that would constitute such a material default or material breach (whether by lapse of time or notice or both) under any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1, 2018, the Company has not received any written notice of termination or nonrenewal with respect to any Assumed Material Contract which expires by its terms (as in effect as of the date hereof) or which is terminated in accordance with the terms thereof by the Company in the Ordinary Course of Business. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, none of the Company or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule Company Subsidiaries is (with or without notice or lapse of time, or both) in breach or default under any such Material Contract and, to the Knowledge of the Company, no other party to any such Material Contract is (with or without notice or lapse of time, or both) in breach or default thereunder. Except as would not be reasonably expected to have, individually or in the aggregate, a Company Material Adverse Effect, to the Knowledge of the Company, the Company has not received, as of the date of this Agreement, any notice in writing from any Person that such Person intends to provide terminate, or not renew, any such noticeMaterial Contract.
Appears in 1 contract
Contracts. (aSet forth in Section 3.13(a) Except as set forth on Section 3.11 of the Company Disclosure Schedule (which is a list as of the date of this Agreement of (i) includes any amendment, supplement 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 modification to any Contract listed therein 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 hereof and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into pursuant to the terms of other Contracts listed therein), as of the date hereof, neither the Company nor any of its Subsidiaries is a party to or bound by any each of the following Contracts that are Related to the Business:
(i) any Contract with any staffing company, temporary employee agency, professional employer organization or other similar company or agency;
(ii) any collective bargaining agreement or similar Contract with an employee representative or labor group representing any Business Employees;
(iii) any Contract relating to Indebtedness or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any of the Transferred Assets or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangements;
(iv) any (A) Contract (or group of related Contracts) relating to or regarding Intellectual Property or (B) IT Asset Contract (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee of less than $50,000 in the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregate);
(v) any Contract which prohibits the Company or any of its Subsidiaries from competing is a party: (A) Contract that purports to limit, curtail or otherwise freely engaging in restrict the Business as currently conducted anywhere in ability of the world 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) partnership or joint venture agreement, (C) 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 July 1, 2003, (D) Contract with any (x) Governmental Authority (provided that with respect to purchase orders covered by this clause (D)(x), Section 3.13(a) of the Company Disclosure Schedule shall set forth only those purchase orders that are unfilled as of March 15, 2006) or that otherwise restricts any activities (y) director, officer or other Affiliate of the Company or any of its Subsidiaries with respect to the Business as currently conducted in any material respect;
(vi) any Contract for the sale of Products or services, in each case, containing “most-favored nation” pricing terms or any exclusive dealing arrangement or any “requirements” Contract;
(vii) any Shared Contract;
(viii) any Contract with any Material Customer or Material Supplier (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditions), and any other Contract which involves the payment by or to, performance of services by or for, or the delivery of goods by or to, or capital expenditures by, the Company in excess of $750,000 in the aggregate over the shorter of: (A) the term of such Contract or (B) the 2019 calendar year;
(A) any Contract relating to ownership of or investments in any business or enterprise and (B) partnership, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar Contract; and
(x) any Contract involving a Governmental Entity.
(b) Each Assumed Contract and each Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule is a legal, valid and binding obligation of the Company, and, to the Knowledge of the Company, each other party to such Contract, and is enforceable against the Company, and, to the Knowledge of the Company, each such other party in accordance with its terms subject, in each case, to the effect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and neither the Company noror, to the Knowledge of the Company, any Affiliate of any such director or officer, (E) 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, (F) financial derivatives master agreement or confirmation, or futures account opening agreements and/or brokerage statements, evidencing financial hedging or similar trading activities, (G) voting agreement or registration rights agreement, (H) 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, (I) customer, client or supply Contract currently in effect that required payment of consideration (whether or not measured in cash) in fiscal year 2005 in excess of $2,000,000 or that is reasonably likely to require payment of consideration in fiscal year 2006 in excess of $2,000,000, (J) Contract (other than customer, client or supply Contracts) currently in effect that required payment of consideration (whether or not measured in cash) in fiscal year 2005 in excess of $1,500,000 or that is reasonably likely to require payment of consideration in fiscal year 2006 in excess of $1,500,000, (K) Contract currently in effect that was not entered into in the ordinary course of business consistent with past practice and that is not otherwise set forth on Section 3.13(a) of the Company Disclosure Schedule, (L) collective bargaining agreement, (M) "standstill" or similar agreement, (N) merchandising, sales representative or distribution Contract currently in effect that requires payment of consideration (whether or not measured in cash) of greater than $500,000, (O) to the extent material to the business or financial condition of the Company and its Subsidiaries, taken as a whole, (1) product design or development Contract, (2) Contract primarily involving the provision by or to the Company or any of its Subsidiaries of consulting services, (3) Contract under which the Company or any of its Subsidiaries has agreed to indemnify, hold harmless or assume any obligation of any Person (including with respect to infringement, misappropriation, misuse or other violation by the Company or such Subsidiary or such third party of the Intellectual Property of any third party) other than commercial Contracts in the ordinary course of business, (4) Contract set forth on Section 3.16(c) of the Company Disclosure Schedule or (5) Contract in which the Company or any of its Subsidiaries has granted a right of first refusal or first negotiation, or (P) commitment or agreement to such Contract is 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 (including the Contracts not required to be so listed by virtue of the proviso in material default or material breach clause (a)(ii)(D)(x) of this Section 3.13) and Section 3.16(c) of the Company Disclosure Schedule, together with any and all other Contracts of such type entered into in accordance with Section 5.2, 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 hereof, together with any and all amendments and supplements thereto and material "side letters" and similar documentation relating thereto. None of the Material Contracts to which the Company or any of its Subsidiaries is a party, and no bid outstanding as of the date of this Agreement (if accepted or awarded), would result in a Loss Contract, and, to in each case in the Knowledge reasonable judgment of the Company, there does not exist any event, condition or omission that would constitute such a material default or material breach (whether by lapse of time or notice or both) under any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 's management as of the Disclosure Scheduledate of this Agreement. Since January 1For purposes of this Agreement, 2018, the Company has not received any written notice of termination or nonrenewal with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge of the Company, no other party to any such Contract intends to provide any such notice."
Appears in 1 contract
Contracts. (a) Except as set forth on Section 3.11 3.08(a) of the Seller Disclosure Schedule (which (i) includes any amendment, supplement or modification to any Contract listed therein Letter sets forth a true and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into pursuant to the terms of other Contracts listed therein)complete list, as of the date hereofof this Agreement, neither the Company nor any of its Subsidiaries each Assigned Contract (a “Material Assigned Contract”) to or by which Seller is a party or bound, or to or bound by which any of the following Contracts Business or the Acquired Assets are subject, that are Related to the Businessis or includes:
(i) any Contract with any staffing company, temporary employee agency, professional employer organization an employment agreement or other similar company or agencyemployment contract;
(ii) any a collective bargaining agreement or similar other Contract with an employee representative any labor organization, union or labor group representing any Business Employeesassociation;
(iii) a covenant not to compete or not to engage in any Contract relating activity or business, or pursuant to Indebtedness which any benefit is required to be given or to mortgaging, pledging lost as a result of so competing or otherwise placing a Lien (other than a Permitted Lien) on any of the Transferred Assets or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangementsengaging;
(iv) any a Contract with (A) Contract (any shareholder or group affiliate of related Contracts) relating to or regarding Intellectual Property Seller or (B) IT Asset Contract any officer, director or employee of Seller or any of its affiliates (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee of less other than $50,000 in the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregateemployment agreements covered by clause (i) above);
(v) a lease, sublease or similar Contract (including any Contract sale-leaseback arrangement) with any person under which prohibits the Company Seller is a lessor or sublessor of, or makes available for use to any person, (A) any Business Property or (B) any portion of its Subsidiaries from competing or any premises otherwise freely engaging in the Business as currently conducted anywhere in the world in any material respect or that otherwise restricts any activities of the Company or any of its Subsidiaries with respect to the Business as currently conducted in any material respectoccupied by Seller;
(vi) a lease, sublease or similar Contract (including any sale-leaseback arrangement) with any person under which (A) Seller is lessee of, or holds or uses, any machinery, equipment, vehicle or other tangible personal property owned by any person that is material to the conduct of the Business or (B) Seller is a lessor or sublessor of, or makes available for use by any person, any tangible personal property owned or leased by Seller that is material to the conduct of the Business; Table of Contents
(vii) a Contract under which Seller has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any person (other than extensions of trade credit in the ordinary course of the Business);
(viii) a Contract granting a Lien upon any Business Property, Assigned Intellectual Property or any other Acquired Asset;
(ix) a Contract providing for indemnification of any person with respect to liabilities relating to the Business or any Acquired Asset, other than such provisions given in connection with the sales of goods and services of the Business in the ordinary course of business;
(x) a Contract (including consulting and services agreements) which provides for “exclusivity” or any similar requirement in favor of any person other than Seller or that requires or obligates Seller to purchase specified minimum amounts of any product;
(xi) a nondisclosure agreement, confidentiality agreement or similar Contract entered into outside of the ordinary course of the Business;
(xii) a Contract (excluding any purchase order in the ordinary course of business) (A) involving future payment of more than $50,000 by or to Seller (unless terminable without payment or penalty upon no more than 30 days’ notice) or (B) providing for future performance by the Business or Seller in consideration of amounts previously paid to the Business or Seller, or which has resulted in deferred revenue under GAAP of more than $50,000;
(xiii) a Contract for the sale of Products any Acquired Asset in excess of $5,000 (other than Inventory sales in the ordinary course of business) or servicesthe grant of any preferential rights to purchase any Acquired Asset in excess of $5,000 or requiring the consent of any party to the transfer thereof;
(xiv) a Contract with any Governmental Entity;
(xv) a currency exchange, in each caseinterest rate exchange, containing “most-favored nation” pricing terms commodity exchange or any exclusive dealing arrangement or any “requirements” similar Contract;
(viixvi) a Contract relating to any Shared Contractcompleted, pending or proposed (A) joint venture, partnership or similar arrangement, (B) acquisition or divestiture of any person, business or division or (C) merger or reorganization;
(viiixvii) any a Contract with any Material Customer or Material Supplier (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with granting the Company’s standard terms and conditions), and any other Contract which involves the payment by or to, performance of services by or for, or the delivery of goods by or to, or capital expenditures by, the Company in excess of $750,000 in the aggregate over the shorter of: (A) the term of such Contract or (B) the 2019 calendar year;
(A) any Contract relating to ownership of or investments in any business or enterprise and (B) partnership, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar Contract; and
(x) any Contract involving a Governmental Entity.
(b) Each Assumed Contract and each Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule is a legal, valid and binding obligation of the Company, and, to the Knowledge of the Company, each other party to such Contract, and is enforceable against the Company, and, to the Knowledge of the Company, each such other party in accordance with its terms subject, in each case, to the effect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and neither the Company nor, to the Knowledge of the Company, any other party to such Contract is in material default or material breach a third party “most favored nation” or similar status;
(xviii) a Contract that prohibits the hiring or solicitation for employment of such Contract, and, to the Knowledge employees of the Company, there does not exist any event, condition or omission that would constitute such a material default or material breach (whether by lapse of time or notice or both) under any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1, 2018, the Company has not received any written notice of termination or nonrenewal with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge of the Company, no other party to any such Contract intends to provide any such notice.another person;
Appears in 1 contract
Contracts. (a) Except as set forth on Section 3.11 Section 4.13(a) of the Disclosure Schedule sets forth a correct and complete list of the following Contracts (which (i) includes including any amendment, supplement or modification (whether written or verbal) thereto) (other than Employee Plans) to any Contract listed therein and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into pursuant to the terms of other Contracts listed therein), as of the date hereof, neither which the Company nor or any of its Subsidiaries is a party or bound, in each case pursuant to which the Company, its applicable Subsidiary or bound by any of the following Contracts that are Related other party thereto has any continuing obligation (each, as amended, supplemented or modified to the Business:date, a “Material Contract”):
(i) each Real Property Lease and each other Contract pursuant to which the Company or its applicable Subsidiary currently leases or subleases real or personal property to or from any Contract with any staffing companyPerson, temporary employee agencyin each case, professional employer organization or other similar company or agencyfor rent amounts of more than $250,000 per annum;
(ii) each Contract (A) for employment of any collective bargaining agreement officer or similar Contract with an individual employee representative of the Company or labor group representing any Business Employeesof its Subsidiaries on a full-time or part-time basis providing annual cash compensation in excess of $150,000 (other than offer letters that are not required to be disclosed on Section 4.11(a) of the Disclosure Schedule), or (B) for the engagement of any consultant or other service provider of the Company or any of its Subsidiaries which (I) provides for annual cash compensation in excess of $150,000 or (II) is not terminable on thirty (30) days’ notice or less without material liability;
(iii) any Contract relating to Indebtedness or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any of the Transferred Assets or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangements[INTENTIONALLY OMITTED];
(iv) each collective bargaining agreement, labor contract or other written agreement or arrangement with any (A) Contract (labor union or group of related Contracts) relating to any employee organization or regarding Intellectual Property contract, agreement or (B) IT Asset Contract (excluding commercially available, off-the-shelf Software arrangement with a replacement cost professional employer organization, co-employer organization, human resources or an annual license fee of less than $50,000 in the aggregate benefits outsourcing entity, or for which the Company has made less than $50,000 in customized improvements in the aggregate)similar vendor or provider;
(v) each Contract providing for severance or other post-termination compensation payment in excess of $150,000 to any officer, individual employee, or other Person on a full-time, part-time, consulting or other basis which has any outstanding payment obligation or which is not terminable on less than thirty (30) days’ notice;
(vi) each Contract (other than purchase orders and invoices entered into by the Company or its applicable Subsidiary in the Ordinary Course of Business) that involves future payments, performance of services or delivery of goods or materials to or by the Company or its applicable Subsidiary of any amount or value reasonably expected to exceed $250,000 in the current fiscal year or the next fiscal year;
(vii) each Contract related to material Intellectual Property owned or licensed by the Company or any of its Subsidiaries, including (A) Contracts by which any material Intellectual Property is licensed by or to the Company or any of its Subsidiaries or that involves annual individual license or maintenance fees in excess of $500,000 and (B) co-existence, concurrent use, and consent to use Contracts (excluding Licenses for Generally Commercially Available Software and non-exclusive licenses granted to customers, contractors or service providers of the Company or any of its Subsidiaries in the Ordinary Course of Business);
(viii) each joint venture or partnership with a third party, including any Contract which involving the sharing of the Company’s and/or its Subsidiaries’ profits with such third party;
(ix) each Contract that prohibits the Company or any of its Subsidiaries from competing in any line of business or otherwise freely engaging in any geographic area or with any Person or that restricts the Company’s or one of its Subsidiary’s ability to (A) purchase or deliver any products or services, (B) solicit or hire any person as an employee (excluding any agreements relating primarily to confidentiality or nondisclosure which are entered into by the Company or such Subsidiary in the Business as currently conducted anywhere in Ordinary Course of Business) or (C) charge certain prices pursuant to a “most-favored nation” or similar clause;
(x) each Contract set forth or required to be set forth on Section 4.18 of the world in Disclosure Schedule;
(xi) any material respect or that otherwise restricts any activities of Contract pursuant to which the Company or any of its Subsidiaries with respect has granted or otherwise permitted to the Business as currently conducted in exist a Lien (other than any Permitted Lien) on any material respectasset or group of assets of the Company;
(vixii) each settlement, conciliation or similar Contract (A) with any Contract for Governmental Entity or (B) pursuant to which the sale of Products or services, in each case, containing “most-favored nation” pricing terms Company or any exclusive dealing arrangement or of its Subsidiaries has any “requirements” Contractoutstanding obligation after the date of this Agreement in excess of $100,000;
(viixiii) each Contract with a Third Party Payor from which the Company has received reimbursement in excess of $250,000 in any Shared Contracttwelve (12) month period;
(viiixiv) any each Contract with a Referral Source involving payment in excess of $250,000;
(xv) each Contract with any Material Customer or Material Supplier (excluding ordinary course task other than purchase orders entered into by the Company or service estimates containing terms and conditions materially consistent with its applicable Subsidiary in the Company’s standard terms and conditionsOrdinary Course of Business);
(xvi) involving acquisitions or dispositions (in each case whether by merger, purchase or sale of assets or stock or otherwise) by the Company or any of its Subsidiaries of any company (or a material portion of its assets), and any other Contract business or line of business, (A) entered into since December 31, 2016 or (B) as to which involves the payment by or to, performance of services by or for, or the delivery of goods by or to, or capital expenditures by, the Company or any of its Subsidiaries has any continuing payment obligations or any material indemnification or other material obligations;
(xvii) each Contract under which the Company or any of its Subsidiaries has made advances or loans to another Person in excess of $750,000 in the aggregate over the shorter of: (A) the term of such Contract or (B) the 2019 calendar year;
(A) any Contract relating to ownership of or investments in any business or enterprise and (B) partnership, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar Contract100,000; and
(xxviii) each Contract relating to the voting or control of equity securities, preemptive rights, registration rights, transfer restrictions, information rights, preferential purchase rights, tag-along rights, or drag-along obligations, in each case, relating to securities of the Company or any of its Subsidiaries (other than wholly-owned Subsidiaries) or the holders of any such securities; 48
(xix) each Contract involving a Governmental Entitygoverning the terms of any Indebtedness or any guaranty in respect thereof.
(b) Each Assumed Contract The Company has provided Parent with a true and complete copy of each Contract disclosed Material Contract, together with all amendments, waivers or required to be disclosed on Section 3.11 other changes thereto, and in the case of any oral contract that is also a Material Contract, a true and complete written description of the Disclosure Schedule terms thereof. With respect to each Material Contract, (i) such Material Contract is a legal, the legal and valid and binding obligation of the CompanyCompany or its applicable Subsidiary party thereto, andenforceable against such Person in accordance with its terms, except as enforceability may be limited by the Enforceability Exceptions, (ii) to the Knowledge of the Company, such Material Contract is the legal and valid obligation of each other party to such Contractthereto, and is enforceable against the Company, and, to the Knowledge of the Company, each such other party Person in accordance with its terms subjectterms, except as enforceability may be limited by the Enforceability Exceptions, and (iii) such Material Contract is in each case, to the effect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally full force and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law)effect, and neither the Company nor its applicable Subsidiary party thereto, nor, to the Knowledge of the Company, any other party to such Contract thereto, is in material breach or default thereunder and no event has occurred or circumstance exists which, with the delivery of notice, the passage of time or both, would constitute such a breach or default or permit the termination or acceleration of any payment under any such Material Contract.
(c) The ability of the Company to perform all obligations required to be performed by it under the Material Contracts has not been materially limited or adversely affected by or as a result of COVID 19 or any COVID 19 Measure in any material breach of such Contract, and, to respect. To the Knowledge of the Company, there does not exist any event, condition or omission that would constitute such a material default or material breach (whether by lapse the ability of time or notice or both) under any Assumed each other party to each Material Contract or any Contract disclosed or to perform all obligations required to be disclosed on Section 3.11 of performed by it under the Disclosure Schedule. Since January 1, 2018, the Company applicable Material Contracts has not received any written notice been materially limited or adversely affected by or as a result of termination or nonrenewal with respect to any Assumed Contract COVID-19 or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge of the Company, no other party to COVID 19 Measure in any such Contract intends to provide any such noticematerial respect.
Appears in 1 contract
Sources: Merger Agreement (AdaptHealth Corp.)
Contracts. (a) Except as set forth on Section 3.11 of the The Company Disclosure Schedule (which (i) includes any amendment, supplement or modification to any Contract listed therein sets forth a complete and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into pursuant to the terms of other Contracts listed therein), correct list as of the date hereof, neither of this Agreement of all of the following Contracts to which the Company nor or any of its Subsidiaries is a party to or bound by under which the Company or any of its Subsidiaries may be liable, excluding any Contract which the following Contracts that are Related to loss of the Businessbenefits of which would not be material, but including, without limitation:
(i) any Contract with any staffing companydirector, temporary officer or employee agency, professional employer organization of the Company or other similar company or agencyany of its Subsidiaries;
(ii) any collective bargaining agreement Contract that, after the Closing, will restrict the conduct of any line of business by the Company or similar Contract with an employee representative any of its Subsidiaries in any material respect or labor group representing upon consummation of the transactions contemplated hereby will materially restrict the ability of the Company or any Business Employeesof its Subsidiaries from engaging in any line of business in which they may lawfully engage;
(iii) any Contract relating to Indebtedness or to mortgaging, pledging or otherwise placing with a Lien labor union (other than a Permitted Lien) on including any of the Transferred Assets or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangementscollective bargaining agreement);
(iv) any (A) Contract (other than Benefit Plans) not otherwise disclosed pursuant to this Section 3.1(m) calling for annual payments aggregating more than $500,000, whether payable by or group to the Company or any of related Contractsits Subsidiaries;
(v) relating any Contract which includes or constitutes a power of attorney;
(vi) any contract that is a settlement, conciliation or similar agreement pursuant to which the Company will be required, as or regarding of after the execution date of this Agreement to pay consideration in excess of $100,000;
(vii) any partnership, joint venture or other similar Contract; and
(viii) any license agreement granting Intellectual Property or rights of the Company to any third party and all license agreements granting Intellectual Property rights of any third party to the Company (B) IT Asset Contract (excluding except for computer software licenses for commercially available, off-the-shelf Software software with a replacement cost or an and/or annual license fee of less than $50,000 10,000), in each case identifying the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregate);subject Intellectual Property.
(vix) any Contract for financing or funding relating to the securing or borrowing of money in an amount in excess of $500,000 pursuant to which prohibits the Company or any of its Subsidiaries from competing is the obligor or otherwise freely engaging guarantor. All of the foregoing are collectively referred to in this Agreement as the Business as currently conducted anywhere “Material Contracts.” Each Material Contract is valid, legal, binding and enforceable against the Company and its Subsidiary that is a party thereto in accordance with its terms. There does not exist under any Material Contract any default or condition or event that, after notice or lapse of time or both, would constitute a default on the world in any material respect or that otherwise restricts any activities part of the Company or any of its Subsidiaries with respect to the Business as currently conducted in any material respect;
(vi) any Contract for the sale of Products or services, in each case, containing “most-favored nation” pricing terms or any exclusive dealing arrangement or any “requirements” Contract;
(vii) any Shared Contract;
(viii) any Contract with any Material Customer or Material Supplier (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditions), and any other Contract which involves the payment by or to, performance of services by or for, or the delivery of goods by or to, or capital expenditures by, the Company in excess of $750,000 in the aggregate over the shorter of: (A) the term of such Contract or (B) the 2019 calendar year;
(A) any Contract relating to ownership of or investments in any business or enterprise and (B) partnership, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar Contract; and
(x) any Contract involving a Governmental Entity.
(b) Each Assumed Contract and each Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule is a legal, valid and binding obligation of the Company, andSubsidiary or, to the Knowledge of the Company, each on the part of any other party parties to such ContractMaterial Contracts, and is enforceable against except for such defaults, conditions or events that would not reasonably be expected to result in a Material Adverse Effect on the Company, and, to the Knowledge of the Company, each such other party in accordance with its terms subject, in each case, to the effect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and neither the Company nor, to the Knowledge of the Company, any other party to such Contract is in material default or material breach of such Contract, and, to the Knowledge of the Company, there does not exist any event, condition or omission that would constitute such a material default or material breach (whether by lapse of time or notice or both) under any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1, 2018, the The Company has not received any written notice made available to Parent correct and complete copy of termination or nonrenewal with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge of the Company, no other party to any such Contract intends to provide any such noticeeach Material Contract.
Appears in 1 contract
Sources: Merger Agreement (Airxcel Inc)
Contracts. (a) Except as set forth on Section 3.11 4.13 of the Company Disclosure Schedule (which lists (i) includes any amendment, supplement or modification to any Contract listed therein all material Company Agreements and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into pursuant to the terms of other Contracts listed therein), as each of the date hereof, neither the Company nor any of its Subsidiaries is a party to Agreements (whether or bound by any not material) of the following Contracts that types which are Related to currently in effect (the Business:
Company Agreements described by the immediately foregoing clauses (i) and (ii), whether or not listed on Section 4.13 of the Company Disclosure Schedule, being referred to hereinafter as the "Listed Company Agreements"):
(a) any Contract with lease of, or agreement to purchase or sell, any staffing company, temporary employee agency, professional employer organization capital assets accounted for as such by the Company or other similar company or agencyany Company Subsidiary;
(iib) any collective bargaining agreement or similar Contract other agreement with an employee representative any union or other labor group representing any Business Employees;
organization (iii) any Contract relating to Indebtedness or to mortgaging, pledging or otherwise placing each a Lien (other than a Permitted Lien) on any of the Transferred Assets or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangements;
(iv) any (A) Contract (or group of related Contracts) relating to or regarding Intellectual Property or (B) IT Asset Contract (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee of less than $50,000 in the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregate"Collective Bargaining Agreement");
(vc) any Contract management, consulting, employment, personal service, agency or other contracts or contracts providing for employment or rendition of personal services and which prohibits (i) are in writing or oral and create other than an at will employment relationship; or (ii) provide for any commission, bonus, profit sharing, incentive, severance, retirement or similar compensation for personal services;
(d) any agreement or note evidencing any Indebtedness or any guaranty of Indebtedness of another Person or creating any Encumbrance;
(e) any material agreement with a dealer, distributor, sales agent, or representative or franchisee;
(f) any agreement for the storage, transportation, treatment or disposal of any Hazardous Substances;
(g) any power of attorney (whether revocable or irrevocable) given to any Person by the Company or any Company Subsidiary, other than powers of attorney with respect to customs and transportation matters that have been granted to agents of a Company Subsidiary in the ordinary course of business consistent with past practice;
(h) any agreement which purports to limit in any respect the manner in which, or the localities in which, the Company, any Company Subsidiary or any other entity is entitled to conduct all or any portion of its Subsidiaries from competing or otherwise freely engaging in business;
(i) any agreement restricting the Business as currently conducted anywhere in the world in any material respect or that otherwise restricts any activities right of the Company or any Company Subsidiary to use or disclose any information in its possession other than immaterial agreements entered into in the ordinary course of its Subsidiaries business consistent with past practice;
(j) any partnership, joint venture or similar arrangement;
(k) any agreement or arrangement with any affiliate or associate of the Company or any Company Subsidiary;
(l) any agreement by which the Company or any Company Subsidiary indemnifies or holds harmless any other Person other than agreements entered into in the ordinary course of business consistent with past practice;
(m) any agreement pursuant to which a rebate, discount, bonus, commission or other payment with respect to the Business as currently conducted sale of any product of the Company or any Company Subsidiary will be payable after the Effective Time, other than agreements entered into in the ordinary course of business consistent with past practice that do not provide for rebates, discounts, bonuses, commissions or other payments that are materially greater, individually or in the aggregate, than the rebates, discounts, bonuses, commissions and other payments payable by the Company or any material respectCompany Subsidiary during the Company's fiscal year ended September 28, 2003;
(vin) any Contract for the sale of Products agreement containing "change in control," "antitakeover" or services, in each case, containing “most-favored nation” pricing terms or any exclusive dealing arrangement or any “requirements” Contract;
(vii) any Shared Contract;
(viii) any Contract with any Material Customer or Material Supplier (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditions), and any other Contract which involves the payment by or to, performance of services by or for, or the delivery of goods by or to, or capital expenditures by, the Company in excess of $750,000 in the aggregate over the shorter of: (A) the term of such Contract or (B) the 2019 calendar year;
(A) any Contract relating to ownership of or investments in any business or enterprise and (B) partnership, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar Contract; and
(x) any Contract involving a Governmental Entity.
(b) Each Assumed Contract and each Contract disclosed or required provisions that could reasonably be expected to be disclosed on Section 3.11 triggered by the consummation of the Disclosure Schedule is a legal, valid and binding obligation of the Company, and, to the Knowledge of the Company, each other party to such Contract, and is enforceable against the Company, and, to the Knowledge of the Company, each such other party in accordance with its terms subject, in each case, to the effect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and neither the Company nor, to the Knowledge of the Company, any other party to such Contract is in material default or material breach of such Contract, and, to the Knowledge of the Company, there does not exist any event, condition or omission that would constitute such a material default or material breach (whether by lapse of time or notice or both) under any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1, 2018, the Company has not received any written notice of termination or nonrenewal with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge of the Company, no other party to any such Contract intends to provide any such notice.transactions contemplated hereby;
Appears in 1 contract
Contracts. Schedule 4.12 contains a true and complete list of all Executory Contracts of the following types to which (a) Except as set forth on Section 3.11 any Seller or Skyware is a party (but only if such Contract primarily relates to the Business) or (b) any of the Disclosure Schedule Assets or Skyware Assets is subject:
(a) any Contract with a sales representative, manufacturer’s representative, distributor, dealer, broker, sales agency, advertising agency or other Person engaged in sales, distribution or promotional activities for or on behalf of the Business, or any Contract to act in one of the foregoing specified capacities on behalf of any Person;
(b) any Contract pursuant to which any Seller or Skyware has made or will make loans or advances, or has incurred, or is obligated to incur, Indebtedness or has become a guarantor or surety or pledged its credit for or otherwise become responsible with respect to any undertaking of another Person (except for the negotiation or collection of negotiable instruments in transactions in the ordinary course of business);
(c) any Contract with (i) includes any amendmentAffiliate of any Seller (but excluding any contract with or relating to a Benefit Plan), supplement or modification to any Contract listed therein and (ii) shall not include Contracts that are invoices, statements any officer or director of work any Seller or Skyware (other than employment agreements or similar arrangements relating to their employment);
(d) any Contract (including a purchase orders order) with any customer or supplier with whom the Sellers or Skyware have entered into pursuant Contracts (including purchase orders), which, in the aggregate, have a commitment of more than $100,000 on an annual basis;
(e) any Contract involving a partnership, joint venture or other cooperative undertaking;
(f) any Contract involving any non-competition or similar restrictions binding on any Seller or Skyware, including with respect to the terms geographical area of other Contracts listed therein)operations or scope or type of business of such Seller or Skyware;
(g) any Contract for any material capital expenditures or material leasehold improvement, as in each case in excess of the date hereof, neither the Company nor $100,000;
(h) any of its Subsidiaries is a party to or bound by any of the following Contracts that are Related to the Business:collective bargaining agreement;
(i) any Contract with any staffing companyinvolving the licensing, temporary employee agencysharing, professional employer organization assignment or other similar company transfer of Intellectual Property, except “off the shelf” commercially available software programs purchased or agencylicensed for less than $100,000 in the aggregate;
(iij) any collective bargaining agreement or similar Contract with containing an employee representative or labor group representing any Business Employees▇▇▇▇▇▇ Guarantee;
(iiik) any Contract relating to Indebtedness or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any of the Transferred Assets or letter of credit arrangements, surety utilized in or performance bonds, guarantee, support or similar arrangementsotherwise related to the conduct of the Business;
(iv) any (A) Contract (or group of related Contracts) relating to or regarding Intellectual Property or (B) IT Asset Contract (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee of less than $50,000 in the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregate);
(v) any Contract which prohibits the Company or any of its Subsidiaries from competing or otherwise freely engaging in the Business as currently conducted anywhere in the world in any material respect or that otherwise restricts any activities of the Company or any of its Subsidiaries with respect to the Business as currently conducted in any material respect;
(vi) any Contract for the sale of Products or services, in each case, containing “most-favored nation” pricing terms or any exclusive dealing arrangement or any “requirements” Contract;
(viil) any Shared Contract;
(viii) any Contract with any Material Customer or Material Supplier (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditions), and any other Contract Business Portion of which involves the payment by or to, performance contains a commitment of services by or for, or the delivery of goods by or to, or capital expenditures by, the Company in excess of more than $750,000 in the aggregate over the shorter of: (A) the term of such Contract or (B) the 2019 calendar year;
(A) any Contract relating to ownership of or investments in any business or enterprise and (B) partnership, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar Contract100,000 on an annual basis; and
(xm) any other Contract involving a Governmental Entity.
(b) Each Assumed Contract and that is otherwise material to the operation of the Business. The Sellers have made available to the Purchaser copies of each Contract disclosed that is listed on Schedule 4.12 (excluding Contracts that the Sellers have provided in redacted form due to confidentiality restrictions). Except as set forth on Schedule 4.12, to Sellers’ Knowledge, all Contracts listed or required to be disclosed listed on Section 3.11 of Schedule 4.12 are in full force and effect and are enforceable by the Disclosure Schedule is a legalapplicable Seller or Skyware, valid and binding obligation of the Companyas applicable, and, to the Knowledge of the Company, each other party to such Contract, and is enforceable against the Company, and, to the Knowledge of the Company, each such other party in accordance with its their terms subject, in each case, (subject to the effect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, Enforceability Limitations). With respect to the effect of general principles of equity Contracts set forth or required to be set forth on Schedule 4.12: (regardless of whether such enforceability is considered in a proceeding in equity or at law), and i) neither the Company applicable Seller or Skyware nor, to the Knowledge of the CompanySellers’ Knowledge, any other party to such Contract thereto, is in default under or in violation of any material default or material breach term of such Contract, and, ; (ii) to the Knowledge Sellers’ Knowledge, no event has occurred that, with notice or lapse of the Companytime or both, there does not exist any event, condition or omission that would constitute such a material default or material breach violation; (whether by lapse iii) no Seller or Skyware has released in writing or to the Sellers’ Knowledge orally, any of time or notice or both) its rights under any Assumed Contract or such Contract; and (iv) no party to such Contracts has (x) repudiated in writing or, to Sellers’ Knowledge, orally, any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1material terms thereof, 2018, the Company has not received any written notice of termination or nonrenewal with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and(y) or, to the Knowledge of the CompanySellers’ Knowledge, no other party threatened to terminate or cancel any such Contract intends Contracts or (z) to provide the Sellers’ Knowledge, provided written notice that it will not renew any such noticeContract.
Appears in 1 contract
Contracts. (a) Except as set forth on Section 3.11 in Section 3.10 of the Seller Disclosure Schedule (which (i) includes any amendmentSchedule, supplement or modification to any Contract listed therein and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into pursuant with respect to the terms of other Contracts listed therein)Business or with respect to which any Purchased Asset is bound or affected, as of the date hereof, neither the Company nor any of its Subsidiaries Seller is not a party to or bound by any of the following Contracts that are Related to the Businessby:
(i) any Contract with any staffing company, temporary employee agency, professional employer organization Real Property Lease or other similar company lease (whether of real or agencypersonal property);
(ii) any collective bargaining agreement Contract for the purchase of services, equipment or similar Contract with an employee representative other assets providing for either (A) payments by Seller of $10,000 or labor group representing more in any Business Employeescalendar year; or (A) give rise to anticipated receipts by Seller of more than $10,000 in any calendar year;
(iii) any Contract relating to Indebtedness or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on which involves any of the Transferred Assets suppliers or letter customers of credit arrangements, surety or performance bonds, guarantee, support or similar arrangementsthe Business referred to in Section 3.11;
(iv) any (A) Contract (partnership, joint venture or group of related Contracts) relating to or regarding Intellectual Property or (B) IT Asset Contract (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee of less than $50,000 in the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregate)other similar Contract;
(v) any Contract which prohibits the Company or any of its Subsidiaries from competing or otherwise freely engaging in the Business as currently conducted anywhere in the world in any material respect or that otherwise restricts any activities of the Company or any of its Subsidiaries with respect relating to the Business as currently conducted in acquisition or disposition of any material respectbusiness (whether by merger, sale of stock, sale of assets or otherwise);
(vi) any Contract for the sale of Products option, license, franchise or services, in each case, containing “most-favored nation” pricing terms or any exclusive dealing arrangement or any “requirements” similar Contract;
(vii) any Shared agency, dealer, sales representative, marketing or other similar Contract;
(viii) any Contract or other arrangement that limits or restricts in any material respect the conduct of the Business or operation of the Purchased Assets or any successor thereto, including any Contract or other arrangement that limits or restricts the freedom of the Business, Seller or any of its Affiliates, or any owner of the Purchased Assets to compete in any line of business or with any Material Customer Person or Material Supplier (excluding ordinary course task orders in any area or service estimates containing terms and conditions materially consistent with to own, operate, sell, transfer, pledge or otherwise dispose of or encumber any Purchased Asset or which would so limit the Company’s standard terms and conditions), and freedom of Buyer or any other Contract which involves of its Affiliates after the payment by or to, performance of services by or for, or the delivery of goods by or to, or capital expenditures by, the Company in excess of $750,000 in the aggregate over the shorter of: (A) the term of such Contract or (B) the 2019 calendar yearClosing Date;
(Aix) any Contract relating obligating the Business, Seller or any of its Affiliates to ownership provide or obtain any product or service exclusively to or from any Person, irrespective of or investments in any business or enterprise and (B) partnershipgeographic, joint venture, co-owner, limited liability company collaboration or strategic alliance market or other similar Contract; andrestriction;
(x) any Contract involving granting to any Person a right of first refusal, first offer or similar preferential right to purchase or acquire any Purchased Asset;
(xi) any Contract (A) with any sole-source suppliers of material products or services, (A) that includes any “most favored nations” terms and conditions, any exclusive dealing or minimum purchase or sale, “take or pay” obligations, arrangement or requirements to purchase substantially all of the output or production of a particular supplier or (A) containing any provision or covenant that limits the freedom of Seller (or any Affiliate thereof) (or, after the Closing, that would purport to so limit or restrict Buyer or any of its Affiliates) to set prices and terms for the provision, sale, lease or license of its products, services or technologies with any Person, except for the prices and terms expressly set forth therein with respect to the products, services or technologies provided, sold, leased or licensed thereunder;
(xii) any Contract relating to any loan or advance to, or investment in, any Person;
(xiii) any Contract under which Seller is a lessee of, or holds or operates, any personal property and interests therein, including equipment, furniture, office equipment, communications equipment, vehicles and other tangible property owned by any other party calling for payments in excess of $10,000 annually;
(xiv) any (A) employment agreement with, or any severance or separation plan, program or agreement covering or with, any current Service Provider that provides for severance payments or benefits or (A) change in control, transaction bonus, retention bonus or other similar agreement with any current Service Provider;
(xv) any Collective Bargaining Agreement;
(xvi) any Contract with a Governmental EntityAuthority;
(xvii) any settlement agreement or similar agreement relating to the settlement or resolution of a material Action since January 1, 2018;
(xviii) any Contract containing a requirement to provide (including a requirement to provide if so requested by the counterparty) a performance bond, letter of credit or any other similar instrument;
(xix) any Related Party Transaction (or that was a Related Party Transaction at the time it was entered into);
(xx) any Contract granting a right or license to use, or a covenant not to be sued under, any Intellectual Property Rights (i) to any third party with respect to any Business Owned Intellectual Property Rights, other than non-exclusive licenses granted to customers in the ordinary course of business consistent with past practice or (ii) to Seller or any of its Affiliates with respect to Intellectual Property Rights of any third party that are used or held for use in the Business, other than any licenses for Off‑the‑Shelf Software with aggregate annual license fees of less than $10,000.
(xxi) any Contract committing Seller to capital expenditures in excess of $10,000 after the date hereof; or
(xxii) any other Contract not made in the ordinary course of business that is material to the Business or the operation of the Purchased Assets taken as a whole. 30
(b) Each Assumed Contract and each Contract disclosed or required to be disclosed in any Schedule to this Agreement or required to be disclosed pursuant to this Section (together with any Contract that would have been required to be so disclosed if in effect on Section 3.11 of the Disclosure Schedule date hereof) (each, a “Material Contract”) is a legal, valid and binding obligation agreement of the CompanySeller, and, to the Knowledge of the Company, each other party to such Contractas applicable, and is enforceable against the Company, and, to the Knowledge of the Company, each such other party in accordance with its terms subject, in each case, to the effect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally full force and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law)effect, and neither the Company Seller nor, to the Knowledge of the CompanySeller, any other party to such Contract thereto is in material default or breach in any material breach respect under the terms of such any Material Contract, and, to the Knowledge of the CompanySeller, there does not exist any eventno event or circumstance has occurred that, condition with notice or omission that would constitute such a material default or material breach (whether by lapse of time or notice or both) under , would constitute any Assumed Contract or event of default thereunder. Seller is not renegotiating any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure ScheduleMaterial Contracts or paying liquidated damages in lieu of performance thereunder. Since January 1, 2018, the Company Seller has not received any written or oral notice of termination or nonrenewal with respect the intention of any party to terminate any Assumed Material Contract, and there are no material unresolved disputes under any Material Contract. True and complete copies of each Material Contract or any Contract disclosed or required to be disclosed on Section 3.11 as of the Disclosure Schedule and, date hereof have been delivered to the Knowledge of the Company, no other party to any such Contract intends to provide any such noticeBuyer.
Appears in 1 contract
Contracts. (a) Except as set forth on Section 3.11 Neither the Company nor any of its Subsidiaries is a party to, or bound by, or the Disclosure Schedule (which issuer or beneficiary of, any undischarged written or oral: (i) includes any amendment, supplement agreement or modification arrangement obligating the Company or its Subsidiaries to any Contract listed therein pay or receive (other than pursuant to indemnification arrangements where no claim has been asserted) an amount in excess of $100,000 (excluding purchase and sale orders not in excess of $250,000 entered into by the Company or its Subsidiaries in the ordinary course of business consistent with past practices); (ii) shall not include Contracts that are invoicesemployment or consulting agreement or arrangement; (iii) plan or contract or arrangement providing for bonuses, statements severance, options, deferred compensation, retirement payments, profit sharing, medical and dental benefits or the like covering employees of work the Company or purchase orders any of its Subsidiaries, other than the Benefit Plans (as defined herein) described in the Disclosure Statement; (iv) agreement restricting in any manner the Company's or any of its Subsidiaries' right to compete with any other Person, the Company's or any of its Subsidiaries' right to purchase, develop, manufacture, sell or distribute any product, the right of any other Person to compete with the Company or any of its Subsidiaries, or the ability of the Company or any of its Subsidiaries to employ or hire any Person; (v) secrecy or confidentiality agreements entered into pursuant outside the ordinary course of business; (vi) any material distributorship, development, co-promotion, manufacturing, collaborative, non-employee commission or marketing agent, representative or franchise agreement providing for the purchase, distribution, marketing, development, manufacture and/or sale of the products or services of the Company or any of its Subsidiaries; (vii) agreement between the Company and any of its affiliates or other Related Parties (as herein defined); (viii) guaranty, performance, bid or completion bond, or surety or indemnification agreement other than such provisions as are contained in any of the agreements listed in the Disclosure Statement; (ix) requirements contract; (x) loan or credit agreement, pledge agreement, note, security agreement, mortgage, debenture, indenture, factoring agreement or letter of credit; (xi) material agreement for the treatment or disposal of Materials of Environmental Concern (as defined herein); (xii) any agreement relating to the terms ownership or control of other Contracts listed therein)any interest in any Person; (xiii) any contract, as agreement or arrangement containing change of control provisions; or (xiv) any agreement for the purchase or sale of all or substantially all of the date hereofequity interests or assets of a business, or an agreement relating to a merger or consolidation to which the Company or any of its Subsidiaries is or was a party. True and correct copies of all agreements listed in the Disclosure Statement have been provided or made available to Wats▇▇. ▇either the Company nor any of its Subsidiaries are currently negotiating any transaction involving (i) a license or other disposition of any material Intellectual Property; or (ii) an aggregate payment by the Company or its Subsidiaries and/or receipts to the Company or its Subsidiaries in excess of $250,000.
(b) To the Company's knowledge, all agreements, leases, subleases and other instruments referred to in this Section 4.18, are, in accordance with and subject to their terms, in full force and binding upon the Company or its Subsidiaries, and the other parties thereto. To the Company's knowledge, neither the Company nor any of its Subsidiaries is a party to or bound by any and none of the following Contracts that other parties thereto are Related to the Business:
(i) in default of a material provision under any Contract with any staffing companysuch agreement, temporary employee agencylease, professional employer organization sublease or other similar company instrument. In the Company's Good Faith Opinion, there is no event, occurrence or agency;
(ii) condition which, with the lapse of time, the giving of notice, or both, would become a default of a material provision under any collective bargaining agreement such agreement, lease, sublease or similar Contract with an employee representative or labor group representing any Business Employees;
(iii) any Contract relating to Indebtedness or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any of the Transferred Assets or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangements;
(iv) any (A) Contract (or group of related Contracts) relating to or regarding Intellectual Property or (B) IT Asset Contract (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee of less than $50,000 in the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregate);
(v) any Contract which prohibits instrument by the Company or any of its Subsidiaries from competing or otherwise freely engaging in the Business as currently conducted anywhere in the world in any material respect or that otherwise restricts any activities of the Company or any of its Subsidiaries with respect Subsidiaries, or, to the Business as currently conducted in any material respect;
(vi) any Contract for the sale of Products or services, in each case, containing “most-favored nation” pricing terms or any exclusive dealing arrangement or any “requirements” Contract;
(vii) any Shared Contract;
(viii) any Contract with any Material Customer or Material Supplier (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditions), and any other Contract which involves the payment by or to, performance of services by or for, or the delivery of goods by or to, or capital expenditures by, the Company in excess of $750,000 in the aggregate over the shorter of: (A) the term of such Contract or (B) the 2019 calendar year;
(A) any Contract relating to ownership of or investments in any business or enterprise and (B) partnership, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar Contract; and
(x) any Contract involving a Governmental Entity.
(b) Each Assumed Contract and each Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule is a legal, valid and binding obligation knowledge of the Company, and, to the Knowledge of the Company, each other party to such Contract, and is enforceable against the Company, and, to the Knowledge of the Company, each such other party in accordance with its terms subject, in each case, to the effect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and neither the Company nor, to the Knowledge of the Company, any other party to such Contract is in material default or material breach of such Contract, and, to the Knowledge of the Company, there does not exist any event, condition or omission that would constitute such a material default or material breach (whether by lapse of time or notice or both) under any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedulecontracting party. Since January 1, 20181997, neither the Company nor any of its Subsidiaries has not received released or waived any written notice material right under any such agreement, lease, sublease or other instrument other than in the ordinary course of termination or nonrenewal business consistent with respect to past practices.
(c) Immediately after the Closing, except as contemplated by this Agreement, neither the Company nor any Assumed Contract of its Subsidiaries will be bound by the terms of any stock option agreement, registration rights agreement, stockholders agreement, management agreement, consulting agreement or any Contract disclosed other agreement relating to the equity or required to be disclosed on Section 3.11 management of the Disclosure Schedule and, to the Knowledge of the Company, no other party to any such Contract intends to provide any such noticeCompany or its Subsidiaries.
Appears in 1 contract
Contracts. (a) Except as set forth on Section 3.11 3.17 of the Seller's Disclosure Schedule (which (i) includes any amendment, supplement or modification to any Contract listed therein contains a true and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into pursuant to the terms of other Contracts listed therein)complete list, as of the date hereof, neither the Company nor of all Contracts (other than Transferred Business Plans and other than any Material Contracts that are Excluded Assets) to which any of its the Transferred DPC Companies, any of their Subsidiaries or any DPC Affiliate (in respect of the DPC Business) is a party to or bound by which any of the Transferred DPC Companies, any of their Subsidiaries or any DPC Affiliate (in respect of the DPC Business) is bound, and that fall within any of the following categories (the "Material Contracts"); provided that, except with respect to clause (e) below, the following categories shall exclude any Contracts that are Related to the BusinessIT Assets:
(ia) any each material Contract with any staffing company, temporary employee agency, professional employer organization or other similar company or agency;
(ii) any collective bargaining agreement or similar Contract with an employee representative or labor group representing any Business Employees;
(iii) any Contract relating to Indebtedness or to mortgaging, pledging or otherwise placing a Lien Key Customer (other than a Permitted Lien) on any of the Transferred Assets purchase orders, sales orders, rebate agreements or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangements;
(iv) any (A) Contract (or group of related Contracts) relating to or regarding Intellectual Property or (B) IT Asset Contract (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee of less than $50,000 invoices under such Contracts entered into in the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregateordinary course of business);
(vb) each material Contract with a Key Supplier (other than purchase orders, sales orders, rebate agreements or invoices under such Contracts entered into in the ordinary course of business);
(c) each joint venture, partnership, shareholders or other similar agreement relating to the governance or rights of partners with respect to any Joint Venture or involving an equity investment by any Seller (in respect of any portion of the DPC Business) or involving any Transferred DPC Company or any of their Subsidiaries or any of the Joint Ventures or any of their Subsidiaries;
(d) each Contract which prohibits limits the ability of a Transferred DPC Company or any of its Subsidiaries from competing or otherwise freely engaging a DPC Affiliate (in respect of the Business as currently conducted anywhere in the world DPC Business) to compete in any material respect in any business, with any Person or in any geographic area or in any line of business;
(e) each Contract that otherwise restricts any activities is (i) a material DPC IT Asset or (ii) an IT Asset set forth on Section 5.16(c)(ii) of the Seller's Disclosure Schedule, in each case, other than (A) Contracts under which the amount spent in respect of the DPC Business during the twelve (12) month period ended December 31, 2011 did not exceed $250,000 and (B) Contracts concerning commercially available off the shelf software or hardware;
(f) each material Transferred IP Contract, other than non-disclosure agreements, employee invention assignments, customer end user agreements, and similar agreements entered into in the ordinary course of business;
(g) each Contract material to the DPC Business containing a minimum purchase requirement under which the Transferred DPC Companies or their respective Subsidiaries purchased during the twelve (12)-month period immediately preceding December 31, 2011 a minimum of $5,000,000 of goods and/or services;
(h) each Contract material to the DPC Business containing a minimum supply commitment for the Transferred DPC Companies or their respective Subsidiaries to sell during the twelve (12)-month period immediately following, or pursuant to which the Transferred DPC Companies or their respective Subsidiaries have sold during the twelve (12)- month period immediately preceding, December 31, 2011 a minimum of $10,000,000 of goods and/or services on an annual basis;
(i) each Contract (other than purchase orders sales orders, rebate agreements or invoices under such Contracts entered into the ordinary course of business) containing any future capital expenditure obligations of the Transferred DPC Companies, their respective Subsidiaries or the DPC Affiliates (in respect of the DPC Business) in respect of any single project in excess of $5,000,000;
(i) each Contract entered into after January 1, 2011, 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 $2,500,000 individually, other than purchases or sales of raw materials, inventory or similar assets in the ordinary course of business, and (ii) each Contract 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) under which the Transferred Companies or their respective Subsidiaries will have an obligation after Closing with respect to an "earn out," contingent purchase price, or similar contingent payment obligation or indemnification obligations (but excluding indemnification obligations with respect to any Retained Liabilities);
(k) each collective bargaining agreement or other Contract with a labor union or other labor organization;
(l) any lease or sublease related to (i) any Leased Real Property at which any Transferred DPC Company or any of its Subsidiaries with or a DPC Affiliate (in respect to of the Business as DPC Business) currently conducted in any material respect;
conducts manufacturing or assembling activities or (viii) any Contract other Leased Real Property providing for the sale of Products or services, in each case, containing “most-favored nation” pricing terms or any exclusive dealing arrangement or any “requirements” Contract;
(vii) any Shared Contract;
(viii) any Contract with any Material Customer or Material Supplier (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditions), and any other Contract which involves the payment by or to, performance of services by or for, or the delivery of goods by or to, or capital expenditures by, the Company annual rents in excess of $750,000 in the aggregate over the shorter of: (A) the term of such Contract or (B) the 2019 calendar year;1,000,000; and
(Am) any Contract relating to ownership or evidencing Indebtedness in excess of or investments $2,500,000 individually. A correct and complete copy of each Material Contract has been made available to Buyer prior to the date hereof. Each Material Contract is valid, binding and enforceable in any business or enterprise and (B) partnership, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar Contract; and
(x) any Contract involving a Governmental Entity.
(b) Each Assumed Contract and each Contract disclosed or required to be disclosed on Section 3.11 of all material respects against the Disclosure Schedule is a legal, valid and binding obligation of the Transferred DPC Company, Subsidiary of a Transferred DPC Company or DPC Affiliate party thereto and, to the Knowledge of DuPont, the Company, each other party to such Contract, and is enforceable against the Company, and, to the Knowledge of the Company, each such other party parties thereto in accordance with its terms subjectterms, in each case, to the effect of any applicable Laws relating subject to bankruptcy, insolvency, fraudulent transfer, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or moratorium and similar Laws of general applicability relating to or affecting creditors’ ' rights generally and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law)principles, and neither is in full force and effect. Neither the Company Transferred DPC Companies, their Subsidiaries or DPC Affiliates (in respect of the DPC Business) nor, to the Knowledge of the CompanyDuPont, any other party to such Contract thereto, is in material default under or in material breach of such Contractany Material Contract (other than agreements between or among any of the Transferred DPC Companies and their Subsidiaries), and, to the Knowledge of the CompanyDuPont, there does not exist any event, condition no event has occurred that with or omission that without notice or lapse of time or both would constitute such a material default breach or material breach (whether by lapse of time or notice or both) under any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 default thereunder. As of the Disclosure Schedule. Since January 1date hereof, 2018, the Company has not neither DuPont nor its Subsidiaries have received any written notice of termination termination, cancellation or nonrenewal non-renewal with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge of the Company, no other party to any such Contract intends to provide any such noticeMaterial Contract.
Appears in 1 contract
Contracts. (a) Except as set forth on Section 3.11 of the Disclosure The IDRC Schedule lists each written or oral contract, agreement, arrangement, lease, instrument, mortgage or commitment ("Contract") to which -------- IDRC or an IDRC Subsidiary is a party or may be bound or to which their respective properties or assets may be subject ("IDRC Contract") (i) includes which is ------------- for the sale of any amendment, supplement goods or modification the provision of any services involving more than $100,000 individually or in the aggregate with respect to any Contract listed therein and party or related parties; (ii) shall not include Contracts that are invoiceswhich, statements of work or purchase orders entered into pursuant to the terms of other Contracts listed therein)if terminated, as of the date hereof, neither the Company nor any of its Subsidiaries is a party to or bound by any of the following Contracts that are Related to the Business:
(i) any Contract with any staffing company, temporary employee agency, professional employer organization or other similar company or agency;
(ii) any collective bargaining agreement or similar Contract with would result in an employee representative or labor group representing any Business Employees;
IDRC Material Adverse Effect; (iii) which is with any Contract relating to Indebtedness present or to mortgagingformer employee, pledging for the employment or otherwise placing retention as a Lien (other than a Permitted Lien) on consultant or independent contractor of any of the Transferred Assets or letter of credit arrangementsperson, surety or performance bonds, guarantee, support or similar arrangements;
(iv) any in each case which (A) Contract (or group involves aggregate annual compensation of related Contracts) relating to or regarding Intellectual Property more than $100,000 or (B) IT Asset Contract contains severance obligations; (excluding commercially availableiv) which is a severance agreement, off-the-shelf Software with a replacement cost program or policy of IDRC or an annual license fee of less IDRC Subsidiary with or relating to its employees; (v) Contracts involving more than $50,000 100,000, the terms of which any of the rights or obligations of a party thereto will be modified or altered as a result of the transactions contemplated hereby or which contain change in control provisions; (vi) Contracts involving more than $100,000 individually or in the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregate);
(v) any Contract which prohibits the Company or any of its Subsidiaries from competing or otherwise freely engaging in the Business as currently conducted anywhere in the world in any material respect or that otherwise restricts any activities of the Company or any of its Subsidiaries with respect to the Business as currently conducted in any material respect;
(vi) any Contract for the sale of Products party or servicesrelated parties and containing a commission, in each caserepresentative, containing “most-favored nation” pricing terms franchise, distributorship, or any exclusive dealing arrangement or any “requirements” Contract;
sales agency arrangement; (vii) which involves a license, or other arrangement which relates in whole or in part to any Shared Contract;
software, patent, trademark, trade name, service mark or copyright which, if terminated, would result in an IDRC Material Adverse Effect; (viii) which is an arrangement limiting or restraining IDRC or any Contract IDRC Subsidiary or any successor thereto from engaging or competing in any manner or in any business; or (ix) under which IDRC or any IDRC Subsidiary guarantees the payment or performance by others or in any way is or will be liable with any Material Customer or Material Supplier (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditions), and respect to obligations of any other Contract person, which involves the payment by obligations individually or to, performance of services by or for, or the delivery of goods by or to, or capital expenditures by, the Company in excess of $750,000 in the aggregate over the shorter of: (A) the term of such Contract or (B) the 2019 calendar year;
(A) any Contract relating to ownership of or investments in any business or enterprise and (B) partnership, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar Contract; and
(x) any Contract involving a Governmental Entityexceed $100,000.
(b) Each Assumed Contract and each Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule is a legal, All IDRC Contracts are valid and binding obligation and in full force and effect as to IDRC on the date of the Company, and, this Agreement except to the Knowledge of the Company, each other party to such Contract, and is enforceable against the Company, and, to the Knowledge of the Company, each such other party extent they have previously expired in accordance with its their terms subject, in each case, or except to the effect extent that their invalidity would not have an IDRC Material Adverse Effect. None of any applicable Laws relating to bankruptcyIDRC, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and neither the Company IDRC Subsidiaries nor, to the Knowledge of the CompanyIDRC's knowledge, any other party parties, have violated any provision of, or committed or failed to such Contract is in material default or material breach of such Contractperform any act which with notice, and, to the Knowledge of the Company, there does not exist any event, condition or omission that would constitute such a material default or material breach (whether by lapse of time or notice or both) both would constitute a default under the provisions of, any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1, 2018IDRC Contract, the Company has not received any written notice of termination or nonrenewal with respect violation of which, or the default under which, would reasonably be expected to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge of the Company, no other party to any such Contract intends to provide any such noticehave an IDRC Material Adverse Effect.
Appears in 1 contract
Sources: Merger Agreement (International Data Response Corp)
Contracts. (a) Except as set forth on Section 3.11 3.13(a) of the Company Disclosure Schedule (which (i) includes any amendment, supplement or modification to any Contract listed therein and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into pursuant to the terms of other Contracts listed therein)sets forth, as of the date hereofof this Agreement, neither a true and complete list of each Contract of the Company nor or any of its Subsidiaries Company Subsidiary under which the Company or any Company Subsidiary has ongoing executory obligations or the ability to enforce rights thereunder and that is a party to or bound by included within any of the following Contracts that are Related to the Businesscategories:
(i) all Contracts that purport to limit, curtail or restrict the right of the Company, any Contract Company Subsidiary or any of the Company’s current or future Affiliates in any material respect (A) to engage or compete in any line of business or sell, supply, license or distribute any product or service, in each case, in any geographic area, with any staffing companyPerson or during any period of time (or pursuant to which a benefit or right is required to be given or would be lost as a result of so competing, temporary employee agencyengaging, professional employer organization selling, supplying or distributing), or (B) to solicit or hire any Person or group of Persons (other similar company than Contracts of the Company or agencya Company Subsidiary with customers entered into in the ordinary course of business pursuant to which the Company or a Company Subsidiary agreed not to solicit or hire the employees of such customer);
(ii) any collective bargaining agreement Contract that by its terms limits the payment of dividends or similar Contract with an employee representative other distributions by the Company or labor group representing any Business EmployeesCompany Subsidiary;
(iii) any material Contract relating that grants any Person other than the Company or any Company Subsidiary any (A) “most favored nation” or similar preferred pricing rights, (B) rights of first refusal, rights of first negotiation or similar rights or that materially limits the ability of the Company of any Company Subsidiary to Indebtedness or to mortgagingown, pledging operate, sell, transfer, pledge or otherwise placing a Lien dispose of any material amount of assets or businesses, (other than a Permitted LienC) on right to require the Company or any Company Subsidiary to purchase all or any portion of the Transferred Assets Company’s or letter of credit arrangementsa Company Subsidiary’s requirements from any third party, surety or performance bonds, guarantee, support or similar arrangementsprovision or (D) obligates the Company or any Company Subsidiary to provide maintenance and/or support with respect to any discontinued Company Products or any prior version of any Company Product for more than five years following the Effective Time;
(iv) any Contract relating to the disposition or acquisition by the Company or any Company Subsidiary of any business (whether by merger, sale or purchase of assets, sale or purchase of stock or equity ownership interests or otherwise) or obligating the Company or any Company Subsidiary to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Person (A) Contract (that contains “earn-out” provisions or group other contingent payment obligations that are payable after the date of related Contracts) relating to or regarding Intellectual Property this Agreement or (B) IT Asset Contract (excluding commercially available, offthat contains ongoing non-the-shelf Software with a replacement cost competition or an annual license fee indemnification obligations or other ongoing obligations of less than $50,000 in the aggregate or for which the Company has made less than $50,000 in customized improvements in or any Company Subsidiary that are material to the aggregate)Company and the Company Subsidiaries, taken as a whole;
(v) any Contract Indebtedness under which prohibits the Company or any of its Subsidiaries from competing or otherwise freely engaging in the Business as currently conducted anywhere in the world in any material respect or that otherwise restricts any activities outstanding maximum obligation of the Company and the Company Subsidiaries is $1,000,000 or any of its Subsidiaries with respect to the Business as currently conducted in any material respectgreater, whether secured or unsecured;
(vi) any Contract for Indebtedness under which the sale of Products currently outstanding maximum obligation owed to the Company and the Company Subsidiaries is $5,000,000 or servicesgreater, in each case, containing “most-favored nation” pricing terms whether secured or any exclusive dealing arrangement or any “requirements” Contractunsecured;
(vii) any Shared material original equipment manufacturer, partnership, joint marketing, joint development or joint venture Contract;
(viii) any Contract with relating to the settlement of any Material Customer civil, administrative or Material Supplier (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with judicial Action within the Company’s standard terms and conditions), and any other Contract which involves the payment past five years for payments by or to, performance of services by or for, or the delivery of goods by or to, or capital expenditures by, the Company or any Company Subsidiary in excess of $750,000 in the aggregate over the shorter of: 1,000,000;
(ix) any (A) standstill or similar agreement restricting the term Company or any Company Subsidiary from acquiring the securities of, soliciting proxies respecting, or affecting the control, of such Contract any other Person, or (B) Contract requiring the 2019 calendar year;
(A) Company or any Company Subsidiary to provide any notice or information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal or prior to entering into any discussions or Contract relating to ownership of any Acquisition Proposal or investments in any business or enterprise and (B) partnership, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar Contract; andtransaction;
(x) any Contract involving that is with a Governmental Entity.federal, state or national government or governmental agency;
(bxi) Each Assumed Contract and each Contract disclosed that involves the performance of software development or similar consulting services by the Company or any Company Subsidiary and provides for recurring annual payments to the Company or any of the Company Subsidiaries after the date of this Agreement of $500,000 or more;
(xii) each Patent cross-license;
(xiii) any Contract with (A) a Significant Customer under which the Company recognized revenue in excess of $500,000 during the four consecutive fiscal quarter period ended September 30, 2011, (B) any supplier (other than licensors) of hosting related services provided to customers, outsourcing services relating to Company Product or service offerings or Company Software development services, where payments made or owed by the Company and the Company Subsidiaries under the Contract or any series of related Contracts exceeded $250,000 during the four consecutive fiscal quarter period ended September 30, 2011, and (C) a distributor or reseller (including as an OEM or value-added reseller) of any of the Company Products under which (together with any series of related Contracts) the Company recognized revenue in excess of $500,000 during the four consecutive fiscal quarter period ended September 30, 2011;
(xiv) except as otherwise listed in response to this Section 3.13(a), any Contract that involves payments by or to the Company or any of the Company Subsidiaries of more than $5,000,000 over the four consecutive fiscal quarter period ended September 30, 2011;
(xv) any Contract entered into on or after September 30, 2008 pursuant to which the Company or any of the Company Subsidiaries has agreed or is required to provide any third party with rights in or access to Company Source Code (including on a contingent basis), or to provide for Company Source Code to be disclosed on Section 3.11 put in escrow (other than any Contract whose terms do not differ from the Company’s standard source code escrow terms that have been provided to Parent), indicating for each such Contract whether such Contract includes use rights upon release that would expressly authorize any third party to utilize any Company Source Code other than for the limited purpose of maintaining and supporting such third party’s internal use of one or more Company Products pursuant to an end user license agreement;
(xvi) any Contract for the development for the benefit of the Disclosure Schedule Company or any Company Subsidiary by any party other than the Company or a Company Subsidiary, of Software or Intellectual Property that is a legal, valid and binding obligation of the Company, and, material to the Knowledge of Company and the CompanyCompany Subsidiaries, each other party to such Contract, and is enforceable against the Company, and, to the Knowledge of the Company, each such other party in accordance with its terms subject, in each case, to the effect taken as a whole;
(xvii) any Contract providing for indemnification of any applicable Laws Person with respect to material Liabilities relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance any current or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and neither the Company nor, to the Knowledge former business of the Company, any of the Company Subsidiaries or any predecessor Person, other party to such Contract is in material default than indemnification obligations of the Company or material breach any of such Contract, and, the Company Subsidiaries pursuant to the Knowledge provisions of a Contract entered into by the Company or any of the Company, there does not exist any event, condition Company Subsidiaries in the ordinary course of business consistent with past practice or omission that would constitute such not reasonably be expected be material to the Company and the Company Subsidiaries, taken as a material default or material breach whole; and
(whether by lapse of time or notice or bothxviii) under any Assumed Contract or any Contract disclosed or all other Contracts required to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1, 2018, filed by the Company has as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act (other than those “material contracts” described in Item 601(b)(10)(iii) of Regulation S-K under the Securities Act) or disclosed by the Company on a Current Report on Form 8-K, whether or not received any written notice of termination so filed or nonrenewal with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge of the Company, no other party to any such Contract intends to provide any such noticedisclosed.
Appears in 1 contract
Sources: Merger Agreement (Ariba Inc)
Contracts. (a) Except as set forth on Section 3.11 Schedule 4.17 contains a complete list of the Disclosure Schedule (which all currently effective contracts, agreements, arrangements or commitments (i) includes any amendmentto which Altitun is a party concerning a partnership or joint venture with another Person, supplement or modification relating to any Contract listed therein and the voting of Shares or the election of directors; (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into pursuant to the terms of other Contracts listed therein), as of the date hereof, neither the Company nor any of its Subsidiaries is a party to or bound by any of the following Contracts that are Related to the Business:
(i) any Contract with any staffing company, temporary employee agency, professional employer organization or other similar company or agency;
(ii) any collective bargaining agreement or similar Contract with an employee representative or labor group representing any Business Employees;
(iii) any Contract relating to Indebtedness or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any of the Transferred Assets or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangements;
(iv) any (A) Contract (or group of related Contracts) relating to or regarding Intellectual Property or (B) IT Asset Contract (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee of less than $50,000 in the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregate);
(v) any Contract which prohibits the Company Altitun or any of its Subsidiaries from competing Affiliates (other than individuals) is a party limiting the right of Altitun prior to the Closing, or otherwise freely engaging in the Business as currently conducted anywhere in the world in any material respect or that otherwise restricts any activities of the Company Purchaser or any of its Subsidiaries with respect or Affiliates (other than individuals) at or after the Closing, to the Business as currently conducted in any material respect;
(vi) any Contract for the sale of Products engage in, or services, in each case, containing “most-favored nation” pricing terms or any exclusive dealing arrangement or any “requirements” Contract;
(vii) any Shared Contract;
(viii) any Contract to compete with any Material Customer or Material Supplier (excluding ordinary course task orders or service estimates person in, any business, including each Contract containing terms and conditions materially consistent with exclusivity provisions restricting the Company’s standard terms and conditions), and any other Contract which involves the payment by or to, performance of services by or forgeographical area in which, or the delivery method by which, any business may be conducted by Altitun or Affiliates (other than individuals) prior to the Closing, or by Purchaser or any Subsidiaries or Affiliates (other than individuals) after the Closing; (iii) to which Altitun is a party involving the license, development, assignment or ownership of goods intellectual property, or providing for the payment or receipt of royalties or other compensation by Altitun in connection with intellectual property rights; or (iv) to which Altitun is a party and which is material to the condition (financial or otherwise), results of operations, business, properties, assets or liabilities of Altitun (including but not limited to, all existing contracts between Altitun and manufacturers, suppliers, sales representatives, distributors, OEM strategic partners or capital expenditures bycustomers of Altitun) (all such contracts, agreements, arrangements or commitments, whether or not listed on Schedule 4.17, being hereinafter referred to as "Contracts"). True and correct copies of all the Company in excess of $750,000 in the aggregate over the shorter of: (A) the term of such Contract or (B) the 2019 calendar year;
(A) any Contract relating Contracts listed on Schedule 4.17 have been furnished to ownership of or investments in any business or enterprise and (B) partnership, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar Contract; and
(x) any Contract involving a Governmental Entity.
(b) Each Assumed Contract and each Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule is a legal, Purchaser. All Contracts are valid and binding obligations of the respective parties thereto and Altitun has duly performed its obligations thereunder to the extent such obligations have accrued. Altitun has not breached or defaulted under any Contract where such breach or default (i) could impair the ability of Altitun to enforce any rights thereunder, or (ii) would permit the acceleration of any obligation of any party thereto or the Company, and, to creation of a Lien upon any asset of Altitun. To the Knowledge of the Company, each other party to such Contract, and is enforceable against the Company, and, to the Knowledge of the Company, each such other party in accordance with its terms subject, in each case, to the effect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and neither the Company nor, to the Knowledge of the Company, any other party to such Contract is in material default or material breach of such Contract, and, to the Knowledge of the Company, there does not exist any event, condition or omission that would constitute such a material default or material breach (whether by lapse of time or notice or both) under any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1, 2018, the Company has not received any written notice of termination or nonrenewal with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge of the CompanySellers, no other party to any such Contract intends is in breach or default thereunder.
(b) The consummation of the transactions contemplated hereby will not result in any violation or termination of, default or loss of benefit under, or give rise to provide a right of termination under, the terms of any such noticeContract.
Appears in 1 contract
Sources: Share Purchase Agreement (Adc Telecommunications Inc)
Contracts. (a) Except as set forth on Section 3.11 4.10(a) of the Company Disclosure Schedule (which (i) includes any amendment, supplement or modification to any Contract listed therein and (ii) shall not include Contracts that are invoices, statements sets forth a list of work or purchase orders entered into pursuant to the terms of other Contracts listed therein), each contract in effect as of the date hereof, neither hereof to which the Company nor or any of its Subsidiaries is a party to or bound by any that constitutes (x) a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the following Contracts that are Related to SEC) or (y) any contract or agreement of the Business:type described below (each, a “Material Contract”):
(i) Any employment or consulting agreement that provides for annual compensation in excess of $50,000 and which cannot be terminated by the Company or its Subsidiaries without penalty on notice of thirty (30) days or less, any Contract with other agreement containing severance obligations of the Company or its Subsidiaries upon an employee’s termination of employment and any staffing company, temporary employee agency, professional employer organization of the foregoing agreements currently in negotiation or other similar company or agencyproposed;
(ii) any collective bargaining agreement Any “bonus buy-in agreement” or similar Contract bonus agreement (together with an employee representative or labor group representing any Business Employeesassociated employment agreement and promissory notes);
(iii) any Contract relating to Indebtedness or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any of the Transferred Assets or letter of credit arrangements, surety or performance bonds, guarantee, support Any severance or similar arrangementsagreement providing for payments in excess of $50,000;
(iv) Any collective bargaining agreement with any (A) Contract (or group of related Contracts) relating to or regarding Intellectual Property or (B) IT Asset Contract (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee of less than $50,000 in the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregate)labor union;
(v) Any contract or agreement that restricts or purports or seeks to restrict the right of the Company or its Subsidiaries (or any Contract Affiliate thereof) to engage in any line of business or in any geographic area or compete with any Person or sell any product, or any contract or agreement restricting the use or registration by Company and/or any of its Subsidiaries of any material Intellectual Property owned by the Company and its Subsidiaries;
(vi) Any contract or agreement relating to the acquisition or disposition of any material assets or real property containing obligations (including with respect to post closing indemnification) of any party which prohibits remain to be satisfied or are otherwise still in effect (including schedules thereto);
(vii) Any material agreement relating to the spin off of DAKA International, Inc. (“DAKA”) or the associated reorganization;
(viii) Any contract or agreement for the purchase, maintenance or acquisition of, or the sale or furnishing of materials, supplies, merchandise, equipment, parts or other property or services (excluding any such contract or agreement for linen or janitorial services entered into in the ordinary course of business consistent with past practice) which (A) requires aggregate future payments in excess of $100,000, (B) contains a term longer than three (3) years or (C) cannot be terminated by the Company or its Subsidiaries without penalty on notice of sixty (60) days or less;
(ix) Any franchise agreement, development agreement or related material agreement relating to franchising matters (each a “Franchise Agreement”);
(x) Any contract or agreement under which the Company has granted or received a material license or under which it is obligated to pay or has the right to receive a royalty, license fee or similar payment in an amount in excess of $100,000 per year, excluding licenses or agreements arising from the purchase or use of commonly available “off the shelf” computer software or standard products;
(xi) Any contract or agreement relating to the borrowing of money, or the guaranty of another Person’s borrowing of money or other obligation, in an amount greater than $100,000, including, without limitation, all such notes, mortgages, indentures and other obligations, guarantees of performance, agreements and instruments for or relating to any lending or borrowing;
(xii) Any contract or agreement granting any Person a material Lien on all or any part of the material assets of the Company and its Subsidiaries, taken as a whole, other than (i) Liens which will be released at the Closing and (ii) Permitted Liens not in excess of $100,000 in each case;
(xiii) Any contract or agreement between the Company or any of its Subsidiaries, on the one hand, and any of their respective officers or directors (or Affiliates) on the other hand, except for (i) such contracts or agreements covered under clauses (i), (ii) or (iii) above and (ii) such contracts or agreements that are de minimis in value or effect;
(xiv) Any voting agreement, voting trust or similar agreement, arrangement or contract governing how any shares of Company Common Stock shall be voted; and
(xv) Any settlement agreement (including any agreement in principle with respect thereto or any similar understanding pursuant to which the material terms have been negotiated) (A) containing material outstanding monetary obligations of any party in excess of $100,000 or (B) equitable restrictions on the Company’s ability to conduct business;
(b) The Company has made available to Parent (through the “datasite” used in connection with the Auction Process or its SEC Reports) a correct and complete copy of each Material Contract (including any amendments or modifications thereto). Each Material Contract is valid and binding on the Company or a Subsidiary of the Company party thereto and, to the Company’s Knowledge, each other party thereto, and is in full force and effect, and the Company and each of the Subsidiaries from competing of the Company have performed in all material respects all obligations required to be performed by them to the date hereof under each Material Contract and, to the Company’s Knowledge, each other party to each Material Contract has performed in all material respects all obligations required to be performed by it under such Material Contract.
(c) The agreements set forth on Section 4.10(a) of the Company Disclosure Schedule (with respect to clause (ii)) constitute all of the “bonus buy in” or otherwise freely engaging in the Business as currently conducted anywhere in the world in any material respect or that otherwise restricts any activities of similar bonus agreements entered into by the Company or any of its Subsidiaries with employees thereof. Any offers pending with respect to “bonus buy in” or similar bonus agreements (and related employment agreements) have been rescinded (or were otherwise consummated pursuant to an executed “bonus buy in” agreement reflected on Section 4.10(a) of the Business as currently conducted in any material respect;Company Disclosure Schedule).
(vid) any Contract for Except as set forth in the sale Franchise Agreements, no franchisee or developer of Products or services, in each case, containing “most-favored nation” pricing terms or any exclusive dealing arrangement or any “requirements” Contract;
(vii) any Shared Contract;
(viii) any Contract with any Material Customer or Material Supplier (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditions), and any other Contract which involves the payment by or to, performance of services by or for, or the delivery of goods by or to, or capital expenditures by, the Company in excess and its Subsidiaries has a protected territory, exclusive territory, covenant not to compete, right of $750,000 in the aggregate over the shorter of: (A) the term of such Contract or (B) the 2019 calendar year;
(A) any Contract relating first refusal, option to ownership of or investments in any business or enterprise and (B) partnership, joint venture, co-owner, limited liability company collaboration or strategic alliance acquire additional territories or other similar Contract; and
(x) any Contract involving a Governmental Entity.
(b) Each Assumed Contract and each Contract disclosed or required to arrangement that would be disclosed on Section 3.11 of the Disclosure Schedule is a legal, valid and binding obligation of the Company, and, material to the Knowledge of the Company, each other party to such Contract, Company and is enforceable against the Company, and, to the Knowledge of the Company, each such other party in accordance with its terms subject, in each case, to the effect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and neither the Company nor, to the Knowledge of the Company, any other party to such Contract is in material default or material breach of such Contract, and, to the Knowledge of the Company, there does not exist any event, condition or omission that would constitute such a material default or material breach (whether by lapse of time or notice or both) under any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1, 2018, the Company has not received any written notice of termination or nonrenewal with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge of the Company, no other party to any such Contract intends to provide any such noticeSubsidiaries.
Appears in 1 contract
Contracts. (a) Except All Contracts, including amendments thereto, required to be filed as set forth on Section 3.11 an exhibit to any report of the Disclosure Schedule (which (i) includes any amendment, supplement or modification to any Contract listed therein and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into Company filed pursuant to the terms Exchange Act of other 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 for such amendments or modifications which have been filed as an exhibit to a subsequently dated and filed Company SEC Document before 5:30 p.m. ET on the Business Day immediately prior to the date hereof. All such filed Contracts listed therein)(excluding any redacted portions thereof) shall be deemed to have been made available to Parent.
(b) Other than the Contracts referenced in Section 3.14(a) that were filed in unredacted form, Section 3.14(b) of the Company Disclosure Letter sets forth a true and complete list, as of the date hereofof this Agreement, neither of each Contract to which the Company nor or any of its Subsidiaries Company Subsidiary is a party to or bound by any of the following Contracts that are Related to the Business:
and which constitutes: (i) an agreement that limits in any Contract with material respect the freedom of the Company or any staffing companyCompany Subsidiary to compete in any line of business or sell, temporary employee agency, professional employer organization supply or other similar company distribute any product or agency;
service in any geographic area; (ii) any collective bargaining agreement a joint-venture or similar Contract with an employee representative or labor group representing any Business Employees;
partnership agreement; (iii) an agreement that involves future expenditures or receipts by the Company or any Contract Company Subsidiary of more than $10,000,000 in any one year period that cannot be terminated on less than 90 days’ notice without material payment or penalty; (iv) an acquisition agreement that contains “earn-out” or other contingent payment obligations that could reasonably be expected to result in future payments by the Company or a Company Subsidiary in excess of $1,000,000; (v) an agreement relating to Indebtedness or to mortgaging, pledging that grants or otherwise placing evidences a Lien on any material properties or assets of the Company or any Company Subsidiary in excess of $10,000,000 individually; (vi) other than an easement or a Permitted Lienright of way and other than any lease, license or occupancy agreement in the way of easements or rights of way, a Company Real Property Lease and an option, obligation or right of first refusal or other contractual right to purchase or acquire any real property or interest therein relating to Company Owned Real Property; (vii) on any a Contract for the purchase of the Transferred Assets natural gas, electricity, fuel oil, other petroleum product or letter of credit arrangementsother energy commodities, surety emissions allowance, emissions offsets, or performance bonds, guarantee, support renewable energy certificates or similar arrangements;
agreements that relate to renewable or clean energy, or for the purchase of any other item or service that is reasonably expected to result in future payments by the Company or any Company Subsidiary in excess of $10,000,000 in any one year period; (ivviii) any a Contract (A) Contract (or group of related Contracts) relating to or regarding Intellectual Property or (B) IT Asset Contract (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee of less than $50,000 in for the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregate);
(v) any Contract which prohibits sale by the Company or any of its Subsidiaries from competing the Company Subsidiary of materials, supplies, goods, services, equipment or otherwise freely engaging in the Business as currently conducted anywhere in the world other assets, and that involve or would reasonably be expected to involve aggregate payments in any material respect or that otherwise restricts any activities of one year period to the Company or any Company Subsidiary of $10,000,000 or more, or (B) pursuant to which the Company or any Company Subsidiary received payments of more than $10,000,000 in the years ending December 31, 2011 or December 31, 2012 or expects to receive payments of more than $10,000,000 in the year ending December 31, 2013; (ix) a Contract that requires the Company or any Company Subsidiary to purchase its Subsidiaries with respect to the Business as currently conducted in total requirements of any material respect;
(vi) any Contract for the sale of Products product or servicesservice from a Person or that contains “take or pay” provisions, in each case, containing “most-favored nation” pricing terms or any exclusive dealing arrangement or any “requirements” Contract;
(vii) any Shared Contract;
(viii) any Contract with any Material Customer or Material Supplier (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditions), and any other Contract which involves requiring the payment by or to, performance of services by or for, or the delivery of goods by or to, or capital expenditures by, the Company an amount in excess of $750,000 5,000,000 per year; (x) a Contract pursuant to which the Company or any Company Subsidiary has granted pricing or other terms to a Person on a “most favored nation” or similar basis (other than pricing on the basis of standardized tariffs) or a Contract pursuant to which the Company or any Company Subsidiary has agreed to deal with a Person on an exclusive basis; (xi) a Contract that is a wholesale or retail sale contract for fuel oil or other petroleum product, natural gas or electric power including reserve sharing agreements, commodities, emissions allowance, emissions offsets, or renewable energy certificates and similar agreements that relate to renewable or clean energy, involving an annual aggregate amount in excess of $5,000,000; (xii) an agreement for or related to the supply, transportation or storage of coal, natural gas, diesel fuel or other fuel for electric power generation, involving an annual aggregate over amount in excess of $5,000,000; (xiii) an agreement for or related to the shorter of: transmission of electric power, including joint ownership or participation in facilities for the transmission of electric power, involving an annual aggregate amount in excess of $5,000,000; (xiv) a Contract with any Governmental Entity involving an annual aggregate amount in excess of $2,000,000; (xv) a Contract with any (A) the term of such Contract current or former director or officer or (B) other affiliate of the 2019 calendar year;
(A) any Contract relating to ownership of or investments in any business or enterprise and (B) partnership, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar Contract; and
(x) any Contract involving a Governmental Entity.
(b) Each Assumed Contract and each Contract disclosed or Company required to be disclosed on Section 3.11 in accordance with Item 404(a) of SEC Regulation S-K; (xvi) a Contract that purports to bind any affiliate of the Disclosure Schedule Company other than a Company Subsidiary from engaging in any line of business or operating in any geographical area; (xvii) a Contract with provisions that pursuant to the explicit terms of such Contract may be affected by rating downgrades from one or more rating agencies; (xviii) a Contract relating to the acquisition or disposition of any business (whether by merger, sale of stock, sale of assets or otherwise) for consideration in excess of $10,000,000; (xix) any franchise agreement; and (xx) a Contract with any investment banking, commercial banking firm or other similar firm which obligates the Company or any Company Subsidiary in any way on or after the Effective Time, other than relating to Indebtedness as described in clause (v) above. Each Contract of the type described in Section 3.14(a) and Section 3.14(b) is referred to herein as a “Company Scheduled Contract”.
(c) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect: (i) each Company Scheduled Contract is a legal, valid and binding obligation of the Company, Company or the Company Subsidiary party thereto and, to the Knowledge knowledge of the Company, each of the other party to such Contractparties thereto, and is enforceable against the Company, Company or the Company Subsidiary party thereto and, to the Knowledge knowledge of the Company, each such against the other party parties thereto in accordance with its terms subjectterms, in each case, except that (A) such enforcement may be subject to the effect of any applicable Laws relating to bankruptcy, reorganizationinsolvency or other similar laws, insolvencynow or hereafter in effect, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and subject, as (B) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to enforceability, equitable defenses and to the effect discretion of general principles of equity the court before which any proceeding therefore may be brought; (regardless of whether such enforceability is considered in a proceeding in equity or at law)ii) the Company and the Company Subsidiaries have, and neither the Company nor, to the Knowledge knowledge of the Company, any other party thereto has, performed all respective obligations required to such Contract is be performed by them under the Company Scheduled Contracts and are not (with or without notice or lapse of time, or both) in material default or material breach of such Contract, and, to the Knowledge thereunder; and (iii) none of the CompanyCompany or any Company Subsidiary has any knowledge of, or has received written notice of, any violation or default by it under (nor does there does not exist any event, condition or omission that would constitute such a material default or material breach (whether by lapse which upon the passage of time or the giving of notice or bothboth would cause such a violation of or default under) under any Assumed Company Scheduled Contract to which it is a party or by which it or any Contract disclosed of its properties or required to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1, 2018, the Company has not received any written notice of termination assets is bound or nonrenewal with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge of the Company, no other party to any such Contract intends to provide any such noticeaffected.
Appears in 1 contract
Sources: Merger Agreement (UNS Energy Corp)
Contracts. (aSchedule 5.1(n) Except as set forth on Section 3.11 of lists the Disclosure Schedule (following currently --------- --------------- effective contracts and other agreements to which (i) includes any amendment, supplement or modification to any Contract listed therein and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into pursuant to the terms of other Contracts listed therein), as of the date hereof, neither the Company nor or any of its Subsidiaries is a party to or bound by any of (collectively, the following Contracts that are Related to the Business:"Material Contracts"): ------------------
(i) any Contract with agreement relating to indebtedness, liability for borrowed money or the deferred purchase price of property (excluding trade payables in the Ordinary Course of Business), and the respective principal amounts outstanding thereunder as of the date of this Agreement, or any staffing company, temporary employee agency, professional employer organization guarantee or other similar company contingent liability in respect of any indebtedness or agencyobligation of any Person (other than the endorsement of negotiable instruments for collection in the Ordinary Course of Business);
(ii) any collective bargaining agreement that contains restrictions with respect to payment of dividends or similar Contract with an employee representative any other distribution in respect of the equity of the Company or labor group representing any Business Employeesof its Subsidiaries;
(iii) any Contract letters of credit or similar arrangements relating to Indebtedness the Company or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any of the Transferred Assets or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangementsits Subsidiaries;
(iv) any (A) Contract (agreement concerning a partnership or group of related Contracts) relating to or regarding Intellectual Property or (B) IT Asset Contract (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee of less than $50,000 in the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregate)joint venture;
(v) any Contract employment agreements with any employee of the Company or any of its Subsidiaries or other Person on a consulting basis;
(vi) any management, consulting or advisory agreements, or severance (including early retirement and redundancy) plans or arrangements for any present or former employee of the Company or any of its Subsidiaries;
(vii) any non-disclosure agreements and non-compete agreements or other agreements containing confidentiality provisions or restrictive covenants binding a present or former employee of the Company or any of its Subsidiaries;
(viii) any agreement under which the Company or any of its Subsidiaries is lessee of or holds or operates (A) any real property, or (B) any personal property providing for payments in excess of $20,000 annually;
(ix) any agreement under which the Company or any of its Subsidiaries is lessor of or permits any third party to hold or operate any property, real or personal;
(x) any agreement relating to the acquisition or divestiture of the capital stock or other equity securities, assets or business of any Person involving the Company or any of its Subsidiaries or pursuant to which the Company or any of its Subsidiaries has any Liability, contingent or otherwise;
(xi) any powers of attorney granted by or on behalf of the Company or any of its Subsidiaries;
(xii) any agreement, other than agreements entered into in the Ordinary Course of Business, which prevents the Company or any of its Subsidiaries from disclosing confidential information or which prohibits the Company or any of its Subsidiaries from competing or otherwise freely engaging in the Business as currently conducted business anywhere in the world in world;
(xiii) any material sales or distribution agreements, franchise agreements and advertising agreements relating to the Company or any of its Subsidiaries;
(xiv) any warranty, guaranty or other similar undertaking with respect to a contractual performance extended by the Company or that otherwise restricts any activities of its Subsidiaries;
(xv) any agreement with any of the stockholders of the Company or Affiliates;
(xvi) any agreement under which the Company or any of its Subsidiaries has advanced or loaned any amount to any of its directors, officers and employees outside the Ordinary Course of Business;
(xvii) any agreement pursuant to which the Company or any of its Subsidiaries has agreed to defend, indemnify or hold harmless any other Person;
(xviii) any agreement pursuant to which the Company or any of its Subsidiaries has agreed to settle any Liability for Taxes;
(xix) any agreement pursuant to which the Company or any of its Subsidiaries has agreed to shift or allocate the Liability of the Company or any of its Subsidiaries with respect to the Business as currently conducted in or any material respectother Person for Taxes;
(vixx) any Contract for agreement where the sale of Products or services, in each case, containing “most-favored nation” pricing terms Company or any exclusive dealing arrangement or any “requirements” Contract;of its Subsidiaries has entered into an escrow agreement for Company Software, specifically designated as such on Schedule 5.1(n); ---------------
(viixxi) any Shared Contract;
(viii) any Contract with any Material Customer or Material Supplier (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditions), and any other Contract which involves the payment by or to, performance of services by or for, or the delivery of goods by or to, or capital expenditures by, the Company agreement involving in excess of $750,000 in 500,000 or which is otherwise required to be filed as an exhibit to the aggregate over the shorter of: (A) the term of such Contract or (B) the 2019 calendar year;
(A) any Contract relating to ownership of or investments in any business or enterprise and (B) partnership, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar ContractCompany SEC Reports; and
(xxxii) any Contract involving a Governmental Entity.
agreement with any federal government office or agency, any general service administration (bGSA) Each Assumed Contract and each Contract disclosed agreement, or required to be disclosed on Section 3.11 of the Disclosure Schedule is a legal, valid and binding obligation of the Company, and, to the Knowledge of the Company, each other party to such Contract, and is enforceable against the Company, and, to the Knowledge of the Company, each such other party any agreement with any state or local government agency funded in accordance with its terms subjectany part by federal funds, in each casecase specifically designated as such on Schedule 5.1(n). --------------- The Company has delivered to Parent a correct and complete copy of each written agreement listed in Schedule 5.1(n) (as amended to date) and a --------------- written summary setting forth the terms and conditions of each oral agreement referred to in Schedule 5.1(n). With respect to each such agreement: (i) the --------------- agreement is legal, valid, binding, enforceable, and in full force and effect and will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms immediately following the effect consummation of any applicable Laws the Merger, subject to laws of general application relating to public policy, bankruptcy, reorganizationinsolvency and the relief of debtors and rules of law governing specific performance, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally injunctive relief and subject, as to enforceability, to the effect of general principles of equity other equitable remedies; (regardless of whether such enforceability is considered in a proceeding in equity or at law), and ii) neither the Company nor, to the Knowledge nor any of the Company, any its Subsidiaries is and no other party to such Contract is in material default breach or material breach of such Contractdefault, and, to the Knowledge of the Company, there does not exist any event, condition and no event has occurred which with notice or omission that would constitute such a material default or material breach (whether by lapse of time would constitute a breach or notice default, or bothpermit termination, modification, or acceleration, under the agreement; (iii) under any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1, 2018, neither the Company nor any of its Subsidiaries has not received any written notice of termination or nonrenewal with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge of the Company, and no other party to has repudiated any provision of the agreement; and (iv) neither the Company nor any of its Subsidiaries has or currently is making any payments, including payment of liquidated damages, under any such Contract intends agreements for failure to provide any such noticeperform thereunder.
Appears in 1 contract
Contracts. (a) Except as set forth on Section 3.11 3.9(a) of the Company Disclosure Schedule (Letter identifies each Contract to which (i) includes any amendment, supplement the Company or modification to any the Company Subsidiary is a party or by which the Company or the Company Subsidiary is bound that constitutes a Specified Contract listed therein and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into pursuant to the terms of other Contracts listed therein), as of the date hereofof this Agreement. For purposes of this Agreement, neither the Company nor any of its Subsidiaries is a party to or bound by any each of the following Contracts that are Related to which the BusinessCompany or the Company Subsidiary is a party or by which the Company or the Company Subsidiary is bound as of the date of this Agreement (excluding Employee Plans) shall constitute a “Specified Contract”:
(i) any Contract that is a settlement, conciliation or similar agreement with any staffing companyGovernmental Body (A) pursuant to which the Company or the Company Subsidiary will be required after the date of this Agreement to pay any material monetary obligations or (B) that contains material obligations with respect to, temporary employee agencyor material limitations on, professional employer organization the Company’s or the Company Subsidiary’s conduct that the Company or the Company Subsidiary will be required to comply with after the date of this Agreement (other similar company or agencythan customary confidentiality obligations);
(ii) any collective bargaining agreement Contract (A) materially limiting the freedom or similar Contract right of the Company or the Company Subsidiary to engage in any line of business or to compete with an employee representative any other Person in any location or labor group representing line of business, or (B) containing any Business Employees“most favored nations” terms and conditions (including with respect to pricing) granted by the Company or the Company Subsidiary or any exclusivity obligations or restrictions, in each case that materially limit the freedom or right of the Company or the Company Subsidiary to sell, distribute or manufacture any products or services to or for any other Person;
(iii) any Contract relating that requires or is reasonably expected to Indebtedness require, by its terms, the payment or delivery of cash or other consideration by or to mortgagingthe Company or the Company Subsidiary in an amount in excess of $250,000 in the fiscal year ending December 31, pledging 2023 or otherwise placing a Lien in any individual fiscal year thereafter and that cannot be canceled by the Company or the Company Subsidiary without penalty or further payment on ninety (other than a Permitted Lien90) on any of the Transferred Assets days’ (or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangementsfewer) notice;
(iv) any (A) Contract (or group of related Contracts) Contract, other than the Credit Agreements, relating to Indebtedness in excess of $250,000 (whether incurred, assumed, guaranteed or regarding Intellectual Property or (Bsecured by any asset) IT Asset Contract (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee of less than $50,000 in the aggregate or for which the Company has made less than $50,000 in customized improvements in or the aggregate)Company Subsidiary;
(v) any Contract pursuant to which prohibits the Company or any of its Subsidiaries from competing the Company Subsidiary has continuing guarantee or otherwise freely engaging “earn-out” or other contingent payment obligations (other than Contracts for rebates required by Legal Requirements in the Business as currently conducted anywhere in the world in any material respect or that otherwise restricts any activities ordinary course of the Company or any of its Subsidiaries with respect to the Business as currently conducted in any material respectbusiness);
(vi) any Contract for that obligates the sale of Products Company or services, in each case, containing “most-favored nation” pricing terms the Company Subsidiary to make any capital commitment or any exclusive dealing arrangement or any “requirements” Contractloan;
(vii) any Shared ContractContract with any Person constituting a joint venture, partnership, strategic alliance or similar profit sharing arrangement;
(viii) any Contract with any Material Customer or Material Supplier (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditions), and any other Contract which involves that prohibits the payment by of dividends or to, performance distributions in respect of services by or for, the capital stock of the Company or the delivery of goods by or to, or capital expenditures byCompany Subsidiary, the pledging of the capital stock or other equity interests of the Company in excess or the Company Subsidiary or the issuance of $750,000 in any guaranty by the aggregate over Company or the shorter of: (A) the term of such Contract or (B) the 2019 calendar yearCompany Subsidiary;
(Aix) any Contract relating to ownership of material In-bound License or investments in any business or enterprise and (B) partnership, joint venture, coOut-owner, limited liability company collaboration or strategic alliance or other similar Contract; andbound License;
(x) any other 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 Securities Act or that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act, and has not been so filed or disclosed;
(xi) any material Contract with (A) any Affiliate, director, or executive officer (as such term is defined in the Exchange Act) of the Company, (B) any Person holding 5% or more of the Shares, or (C) to the knowledge of the Company, any Affiliate (other than the Company or the Company Subsidiary) or immediate family member of any Person described in the foregoing clause (A) or (B);
(xii) any Contract with any Governmental Body; and
(xiii) any Contract involving a Governmental Entitythe acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practice).
(b) The Company has delivered or made available to Parent or Parent’s Representatives an accurate and complete copy of each Specified Contract or has publicly made available a copy of such Specified Contract in E▇▇▇▇ at least two (2) days prior to the date hereof. Each Assumed Specified Contract and each Contract disclosed is, with respect to the Company or required the Company Subsidiary, as applicable, that is party thereto and, to be disclosed on Section 3.11 of the Disclosure Schedule is a legal, valid and binding obligation knowledge of the Company, and, with respect to the Knowledge of the Company, each other party to such Contractthereto, valid, binding and in full force and effect, and is enforceable against the Company, and, to the Knowledge of the Company, each such other party in accordance with its terms subjectterms, in each caseexcept (i) insofar as such enforceability may be limited by (A) bankruptcy, to the effect of any applicable Laws relating to bankruptcyinsolvency, fraudulent transfer, reorganization, insolvency, moratorium, fraudulent conveyance moratorium or preferential transfers, or other similar Laws laws of general applicability relating to or affecting creditors’ rights generally rights, or (B) general equitable principles, or (ii) where the failure to be valid, binding, in full force and subjecteffect or enforceable would not reasonably be expected, individually or in the aggregate, to constitute a Material Adverse Effect. With respect to each Specified Contract, neither the Company nor the Company Subsidiary, as to enforceabilityapplicable, or, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and neither the Company nor, to the Knowledge knowledge of the Company, any other party to such Contract thereto (x) is in material breach of, or default or material breach of under, such Specified Contract, andor (y) has taken any action that (or failed to take any action, to the Knowledge of the Companywhich failure), there does not exist any eventwith or without notice, condition or omission that would constitute such a material default or material breach (whether by lapse of time or notice both, would constitute a breach of, or both) under any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 a default under, such Specified Contract, in each case of the Disclosure Schedule. Since January 1foregoing clauses (x) and (y), 2018except as would not reasonably be expected, individually or in the Company has not received any written notice of termination or nonrenewal with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule andaggregate, to the Knowledge of the Company, no other party to any such Contract intends to provide any such noticeconstitute a Material Adverse Effect.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Marinus Pharmaceuticals, Inc.)
Contracts. (a) Except as set forth on Section 3.11 of the Disclosure Schedule (which (i4.13(a) includes any amendment, supplement or modification to any Contract listed therein is an accurate and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into pursuant to the terms of other Contracts listed therein)complete list, as of the date hereofof this Agreement, neither of all the Company nor Contracts of the following types to which (a) the Seller or any of its Subsidiaries is a party (but only if such Contract relates to the Business) or bound by (b) any of the following Contracts that are Related to the BusinessAssets is subject:
(i) any Contract with any staffing company, temporary employee agency, professional employer organization or other similar company or agencycollective bargaining agreement;
(ii) any collective bargaining agreement Contract pursuant to which the Seller or similar Contract any of its Subsidiaries has made or will make loans or advances, or has incurred, or is obligated to incur, indebtedness for borrowed money or has become a guarantor or surety or pledged its credit for or otherwise become responsible with an employee representative respect to any undertaking of another Person (except for the negotiation or labor group representing any Business Employeescollection of negotiable instruments in transactions in the ordinary course of business);
(iii) any Contract with (A) any Affiliate of the Seller (excluding any contract with or relating to Indebtedness any Seller Benefit Plan or to mortgaging, pledging any Dutch Benefit Plan) or otherwise placing a Lien (B) any officer or director of the Seller (other than a Permitted Lien) on any of the Transferred Assets or letter of credit arrangements, surety or performance bonds, guarantee, support employment agreements or similar arrangementsarrangements relating to their employment);
(iv) any (A) Contract (including a purchase order) with any customer or group of related Contractssupplier with whom the Seller or its Subsidiaries have entered into Contracts (including purchase orders) relating to or regarding Intellectual Property or (B) IT Asset Contract (excluding commercially availablewhich, off-the-shelf Software with a replacement cost or an annual license fee of less than $50,000 in the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregate), have a commitment of more than $250,000 on an annual basis;
(v) any Contract which prohibits the Company or any of its Subsidiaries from competing or otherwise freely engaging in the Business as currently conducted anywhere in the world in any material respect or that otherwise restricts any activities of the Company or any of its Subsidiaries with respect to the Business as currently conducted in any material respectGroup Contract;
(vi) any Contract for the sale of Products involving a partnership, joint venture or services, in each case, containing “most-favored nation” pricing terms or any exclusive dealing arrangement or any “requirements” Contractother cooperative undertaking;
(vii) any Shared ContractContract involving any non -competition or similar restrictions binding on the Seller or any of its Subsidiaries, including with respect to the geographical area of operations or scope or type of business of the Seller or any of its Subsidiaries;
(viii) any Contract containing commitments of suretyship, guaranty or indemnification by the Business (except for guarantees, warranties and indemnities in connection with any Material Customer or Material Supplier (excluding the sale of goods in the ordinary course task orders or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditionsof business), and any other Contract which involves the payment by or to, performance of services by or for, or the delivery of goods by or to, or capital expenditures by, the Company in excess of $750,000 in the aggregate over the shorter of: (A) the term of such Contract or (B) the 2019 calendar year;
(Aix) any Contract relating to ownership of any license, franchise, distributorship or investments in any business or enterprise and (B) partnership, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar Contract; andsales agency arrangements;
(x) any Contract involving a Governmental Entity.for any material capital expenditures or material leasehold improvements;
(bxi) Each Assumed any Contract and each Contract disclosed or required that, if terminated prior to be disclosed on Section 3.11 of the Disclosure Schedule is a legal, valid and binding obligation of the Company, and, to the Knowledge of the Company, each other party to such Contract, and is enforceable against the Company, and, to the Knowledge of the Company, each such other party its expiration in accordance with its terms subjectterms, in each case, would reasonably be expected to have a Business Material Adverse Effect; and
(xii) any other Contract that is material to the effect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and neither the Company nor, to the Knowledge of the Company, any other party to such Contract is in material default or material breach of such Contract, and, to the Knowledge of the Company, there does not exist any event, condition or omission that would constitute such a material default or material breach (whether by lapse of time or notice or both) under any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1, 2018, the Company has not received any written notice of termination or nonrenewal with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge of the Company, no other party to any such Contract intends to provide any such noticeBusiness.
Appears in 1 contract
Contracts. (a) Except as set forth on Section 3.11 Schedule 2.12(A) describe all of the Disclosure Schedule (following to which the Company or any of its subsidiaries is a party as of the date of this Agreement (i) includes any amendment, supplement or modification to any Contract listed therein and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into pursuant to require active performance by the terms of other Contracts listed therein), Company as of the date hereof, neither and (ii) which are material, whether active or not, that were entered into after January 1, 1999 and (iii) other material contracts of which the current officers of the Company nor any of its Subsidiaries is a party to are aware (without checking files or bound by any of SEC filings) ((i) and (ii) are collectively, the following Contracts that are Related to the Business:"Company Contracts"):
(i) any Contract with any staffing companyall agreements, temporary employee agencycontracts, professional employer organization leases or other similar company or agencybinding commitments;
(ii) any collective bargaining indenture, mortgage, promissory note, loan agreement or similar Contract with an employee representative other agreement or labor group representing commitment for the borrowing of money by the Company or any Business Employeesof its subsidiaries;
(iii) any Contract relating lease, sublease or other agreement pursuant to Indebtedness which it is a lessee of or to mortgaging, pledging holds or otherwise placing a Lien (other than a Permitted Lien) on operates any of the Transferred Assets real or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangementspersonal property owned by any third party;
(iv) any (A) Contract (option or group of related Contracts) relating other executory agreement or other agreement with remaining obligations thereunder to purchase or regarding Intellectual Property acquire any interest in assets or (B) IT Asset Contract (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee of less than $50,000 in the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregate)property;
(v) any Contract which prohibits the Company option or other executory agreement or other agreement with remaining obligations thereunder to sell or dispose of any of its Subsidiaries from competing interest in assets or otherwise freely engaging in the Business as currently conducted anywhere in the world in any material respect or that otherwise restricts any activities of the Company or any of its Subsidiaries property other than stock option agreements with respect employees, independent contractors and directors pursuant to the Business as currently conducted in any material respectCompany's stock option plans;
(vi) any Contract for contract or agreement creating a joint venture or similar arrangement by which the sale of Products assets, properties, rights, or services, in each case, containing “most-favored nation” pricing terms or any exclusive dealing arrangement or any “requirements” Contractbusiness is materially affected;
(vii) any Shared Contractguaranty, keepwell, makewhole or similar agreement of or with respect to the obligations of third parties;
(viii) any Contract with any Material Customer or Material Supplier (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditions), and any other Contract agreement which involves the payment by or to, performance of services by or for, or the delivery of goods by or to, or capital expenditures by, restricts the Company in excess of $750,000 from doing business anywhere in the aggregate over world or limits the shorter of: (A) the term of such Contract or (B) the 2019 calendar yearbusiness in which it may engage;
(Aix) any Contract relating agreement or arrangement under which the Company agrees to ownership indemnify any person or to share Tax liability of or investments in any business or enterprise and (B) partnership, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar Contract; andperson;
(x) any Contract involving a Governmental Entitylicense of material Company Intellectual Property (as defined in Section 2.14) (including use of the name of the Company or any similar name) of or by the Company other than in the ordinary course of business;
(xi) any contracts for insurance; and
(xii) any contract or agreement under which the Company has the obligation to issue or sell any security.
(b) Each Assumed Company Contract and each Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule is a legalvalid, valid binding and binding enforceable obligation of the Company, and, to the Knowledge of the Company, each other party to such Contract, and is enforceable against the Company, and, to the Knowledge of the Company, each such other party in accordance with its terms subject, in each case, to the effect of any or parties thereto (except as enforceability may be limited by applicable Laws relating to bankruptcy, insolvency, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or transfer and similar Laws laws of general applicability relating to or affecting creditors’ rights generally and subject' rights, as to enforceabilityor by general equity principles, to the effect of general including principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at lawcommercial reasonableness, good faith and fair dealing), and neither each Company Contract is in full force and effect.
(c) Neither the Company nor, to the Knowledge of the Company's knowledge, any other party to such Contract thereto, is in material default or material breach of such Contract, and, to the Knowledge of the Company, there does not exist any event, condition or omission that would constitute such a material default or material breach (whether by lapse of time or notice or both) under any Assumed term of any Company Contract or has repudiated any term of any Company Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1, 2018, the except as set forth in Schedule 2.12(A).
(d) The Company has not received any written notice of termination or nonrenewal cancellation with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule andCompany Contract, to the Knowledge of the Company, and no other party to a Company Contract plans to terminate or cancel any such Contract intends to provide any such noticeagreement.
Appears in 1 contract
Contracts. (a) Except as Part 2.9 of the Company Disclosure Schedule identifies each Company Contract that constitutes a Significant Contract, disclosed in subsections corresponding to the list set forth on Section 3.11 below. For purposes of the Disclosure Schedule (which (i) includes any amendmentthis Agreement, supplement or modification to any Contract listed therein and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into pursuant to the terms of other Contracts listed therein), as of the date hereof, neither the Company nor any of its Subsidiaries is a party to or bound by any each of the following Contracts that are Related shall be deemed to the Businessconstitute a “Significant Contract”:
(i) any Contract constituting a Company Employee Agreement providing for annual compensation to any individual in excess of $200,000, other than Contracts with any staffing company, temporary employee agency, professional employer organization or other similar company or agencyGerman employees substantially in the form of the Company’s standard Contract for such employees attached to Part 2.9(a) of the Company Disclosure Schedule;
(ii) any collective bargaining agreement Contract: (A) with any works council, labor union or similar Contract with an employee representative organization or labor group representing body; (B) pursuant to which any Business Employeesof the 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 Acquired Corporations is or may become obligated to make any bonus or similar payment (other than payments constituting base salary or commissions paid in the ordinary course of business) in excess of $25,000 to any Company Associate; or (D) pursuant to which any of the Acquired Corporations is or may become obligated to accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other equity interest in any of the Acquired Corporations;
(iii) any Contract relating identified or required to Indebtedness or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any be identified in Part 2.8 of the Transferred Assets or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangementsCompany Disclosure Schedule;
(iv) 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) Contract (Contracts pursuant to which the Company obtains a license from a third party only to general-purpose, non-customized business application software that is not incorporated into any Company Product and is generally available to the public pursuant to a shrink-wrap, click-wrap or group of related Contracts) relating to or regarding Intellectual Property or other similar mass-market license agreement; (B) IT Asset Contract standard forms of the type described in Section 2.8(b); and (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee of less than $50,000 C) Contracts entered into in the aggregate or ordinary course of business with customers for which the sale of Company has made less than $50,000 in customized improvements in the aggregate)Products;
(v) any Contract which prohibits creating or relating to any partnership or joint venture or requiring any Acquired Corporation to share any revenues with any other Person (it being understood that “sharing of revenues” as contemplated by this clause “(v)” is not intended to include employee bonuses that are determined in part by the Company or any of its Subsidiaries from competing or otherwise freely engaging in the Business as currently conducted anywhere in the world in any material respect or that otherwise restricts any activities revenues of the Company or any of its Subsidiaries with respect to the Business as currently conducted in any material respectAcquired Corporations);
(vi) any Contract for 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 sale defense thereof; or (B) indemnification of Products or services, in each case, containing “most-favored nation” pricing terms or any exclusive dealing arrangement or any “requirements” ContractCompany Associate;
(vii) any Shared ContractContract 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 pursuant to which any Material Customer Acquired Corporation grants or Material Supplier (excluding ordinary course task orders receives marketing, distribution, system integration, OEM or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditions), and any other Contract which involves the payment by similar rights for any product or to, performance of services by or for, or the delivery of goods by or to, or capital expenditures by, the Company in excess of $750,000 in the aggregate over the shorter of: (A) the term of such Contract or (B) the 2019 calendar yearservice;
(Aix) any Contract relating to ownership of or investments in any business or enterprise and (B) partnershipcreating a joint development, joint venturecooperative development, co-owner, limited liability company collaboration or strategic alliance collaborative research or other similar Contract; andarrangement with any Person;
(x) any Contract (other than Contracts evidencing Company Options or Company Stock Awards): (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 incorporating or relating to any guaranty, any warranty (other than warranties included in service contracts from suppliers which require annual payments of $25,000 or less and other than warranties in Contracts for the sale of Company Products), 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 that do not deviate in any material respect from the standard forms referred to in Section 2.8(b);
(xii) any Contract with a Person that supplies products or services (excluding Intellectual Property) to any Acquired Corporation where such products or services are not, as of the date of this Agreement, commercially available from another Person;
(xiii) any Contract relating to the lease or sublease by any of the Acquired Corporations of any real property involving rents of more than $25,000 per year;
(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 future payment or delivery of cash or other consideration (to or by any Acquired Corporation) in an amount or having a Governmental value in excess of $500,000 in the aggregate under such Contract (other than Contracts to purchase components for any Company Product if there is a Contract from a customer to purchase such Company Product), or contemplates or involves the performance of services (to or by any Acquired Corporation) having a value in excess of $500,000 in the aggregate under such Contract;
(xv) any Contract that has a term of more than one year and that may not be terminated by an Acquired Corporation (without penalty in excess of $25,000) within 60 days after the delivery of a termination notice by such Acquired Corporation (other than: (A) confidentiality or nondisclosure agreements entered into by any Acquired Corporation in the ordinary course of business consistent with past practices; (B) Contracts to sell Company Products entered into in the ordinary course of business consistent with past practices; (C) Contracts to purchase components for any Company Product if there is a Contract from a customer to purchase such Company Product; and (D) Contracts for the sale by the Company of spare parts in the ordinary course of business consistent with past practices);
(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; and
(xviii) any Contract: (A) requiring that any of the Acquired Corporations give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction; or (B) that could 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. The Company has delivered to Parent an accurate and complete copy of each Company Contract that constitutes a Significant Contract.
(b) Each Assumed Company Contract that constitutes a Significant Contract is valid and each Contract disclosed or required in full force and effect, and is enforceable in accordance with its terms, subject to: (i) laws of general application relating to be disclosed on Section 3.11 bankruptcy, insolvency and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.
(c) Except as set forth in Part 2.9(c) of the Company Disclosure Schedule is a legal, valid and binding obligation of the Company, and, Schedule: (i) to the Knowledge of the Company, each other party to such Contract, and is enforceable against the Company, and, to the Knowledge none of the Company, each such other party Acquired Corporations has violated or breached in accordance with its terms subject, in each case, to the effect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfersmaterial respect, or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered committed any default in a proceeding in equity or at law), and neither the Company nor, to the Knowledge of the Companyany material respect under, any other party to such Contract is in material default or material breach of such Company Contract, and, to the Knowledge of the Company, there does not exist any event, condition or omission that would constitute such a material default or material breach ; (whether by lapse of time or notice or bothii) under any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1, 2018, the Company has not received any written notice of termination or nonrenewal with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge of the Company, no other party Person has violated or breached in any material respect, or committed any default in any material respect under, any Company 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) could reasonably be expected to: (A) result in a violation or breach in any such material respect of any of the provisions of any Company Contract; (B) give any Person the right to declare a default in any material respect under any Company 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 the maturity or performance of any Company Contract intends that constitutes a Significant Contract; or (E) give any Person the right to provide cancel, terminate or modify any such noticeCompany Contract that constitutes a Significant Contract; and (iv) since January 1, 2003, none of the Acquired Corporations has received any notice or other communication regarding any actual or possible violation or breach of, or default under, any Company Contract that constitutes a Significant Contract.
Appears in 1 contract
Contracts. (a) Except as set forth on Section 3.11 2.11 of the Company Disclosure Schedule (which (i) includes any amendment, supplement or modification to any Contract listed therein and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into pursuant to the terms of other Contracts listed therein), contains a list as of the date hereof, neither the Company nor any of its Subsidiaries is a party to or bound by any this Agreement of each of the following Contracts to which the Company or a Company Subsidiary is a party, other than Company Plans (each such Contract (x) required to be listed in Section 2.11 of the Company Disclosure Schedule, (y) that are Related is a Company IP License or (z) that is required to be filed as a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) as an exhibit to the Business:Most Recent Company 10-K under the Exchange Act prior to the date of this Agreement (other than any Company Plan), being referred to as a “Material Contract”):
(a) each Contract that restricts in any material respect the ability of the Company, any Company Subsidiary or any Affiliate of any of them to (i) engage or compete in any Contract with geographic area or line of business, market or field, or to develop, sell, supply, manufacture, market, distribute, or support any staffing companymaterial product or service, temporary employee agency, professional employer organization or other similar company or agency;
(ii) transact with any collective bargaining agreement Person (or similar Contract with an employee representative that would so restrict Parent, any Parent Subsidiary or labor group representing any Business Employees;
(iii) any Contract relating to Indebtedness or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on Affiliate of any of them following the Transferred Assets or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangements;
(iv) any (A) Contract (or group of related Contracts) relating to or regarding Intellectual Property or (B) IT Asset Contract (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee of less than $50,000 in the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregateClosing);
(vb) each joint venture agreement, partnership agreement or similar agreement with a third party;
(c) each material acquisition or divestiture Contract that contains any Contract which prohibits material indemnification obligations of the Company or a Company Subsidiary or any of its Subsidiaries from competing “earnout” or otherwise freely engaging in the Business as currently conducted anywhere in the world in any other material respect or contingent payment obligations that otherwise restricts any activities are outstanding obligations of the Company or any Company Subsidiary as of its Subsidiaries the date of this Agreement;
(d) each Contract evidencing indebtedness for money borrowed by the Company or any Company Subsidiary from a third party lender, and each Contract pursuant to which any such indebtedness for borrowed money is guaranteed by the Company or any Company Subsidiary, in each case in excess of $250,000;
(e) each Contract expressly limiting or restricting the ability of the Company or any Company Subsidiary (i) to make distributions or declare or pay dividends in respect of their capital stock, membership interests or other equity interests, as the case may be, (ii) to pledge their capital stock or other equity interests, (iii) to issue any guaranty, or (iv) to make loans to the Company or any Company Subsidiary;
(f) each Contract that obligates the Company or any Company Subsidiary to make any loans, or capital contributions to, or investments in, any Person in excess of $250,000 individually;
(g) each Contract that grants a third party any material right of first refusal, first notice, first negotiation or right of first offer or similar right with respect to the Business as currently conducted in any material respectassets, rights or properties of the Company or any Company Subsidiary;
(vih) each Contract or series of related Contracts (excluding (i) purchase orders given or received in the ordinary course of business in a manner consistent with past practice and (ii) Contracts between the Company and any Contract for wholly owned Company Subsidiary or among any wholly owned Company Subsidiaries) under which the sale of Products or services, in each case, containing “most-favored nation” pricing terms Company or any exclusive dealing arrangement or any “requirements” Contract;
Company Subsidiary (viiA) any Shared Contract;
(viii) any Contract with any Material Customer or Material Supplier (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditions), and any other Contract which involves the payment by or to, performance of services by or for, or the delivery of goods by or to, or capital expenditures by, the Company paid in excess of $750,000 in the aggregate over the shorter of: (A) the term fiscal year 2020, or is expected to pay in excess of such Contract $750,000 in fiscal year 2021 or (B) the 2019 calendar yearreceived in excess of $750,000 in fiscal year 2020, or is expected to receive in excess of $750,000 in fiscal year 2021;
(Ai) any each “single source” supply Contract relating pursuant to ownership which goods or materials are supplied to the Company or a Company Subsidiary from a sole source which is expected to involve payments by the Company and Company Subsidiaries in excess of or investments $250,000 in any business or enterprise and (B) partnership, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar Contract; andfiscal year 2021;
(xj) any Contract involving a Governmental Entity.
(b) Each Assumed Contract and each Contract disclosed containing any “take or required to be disclosed on Section 3.11 of the Disclosure Schedule is a legalpay”, valid and binding obligation of the Company, and, to the Knowledge of the Company, each other party to such Contract, and is enforceable against the Company, and, to the Knowledge of the Company, each such other party in accordance with its terms subjectminimum commitments or similar provisions which, in each case, is expected to involve payments (including penalty or deficiency payments) by the Company and Company Subsidiaries in excess of $250,000 in fiscal year 2021;
(k) each lease involving real property pursuant to which the Company or any Company Subsidiary is required to pay a monthly base rental in excess of $50,000;
(l) each lease or rental Contract involving personal property (and not relating primarily to real property) pursuant to which the Company or any Company Subsidiary is required to make rental payments in excess of $25,000 per month (excluding leases or rental Contracts for office equipment entered into in the ordinary course of business in a manner consistent with past practice);
(m) each Contract relating to the effect acquisition, sale or disposition of any applicable Laws business unit or product line of the Company or any Company Subsidiary and with any outstanding obligations that are material to the Company and the Company Subsidiaries, taken as a whole, as of the date of this Agreement;
(n) any Government Contract with any outstanding obligations under which the Company or the Company Subsidiaries received in excess of $750,000 in fiscal year 2020, or is expected to receive in excess of $750,000 in fiscal year 2021;
(o) each Contract with any material “most favored nation” provision or that otherwise requires the Company or any Company Subsidiary (or, following the Closing, would require Parent or any Parent Subsidiary) to conduct business with any Person on a preferential or exclusive basis, or that includes a price protection provision in favor of the counterparty to such Contract;
(p) each settlement agreement entered into since January 1, 2019 (i) with a Governmental Entity that imposes material ongoing obligations or restrictions on the Company or any Company Subsidiary; (ii) that requires the Company or any Company Subsidiary to pay more than $250,000 in excess of insurance coverage after the date of this Agreement; or (iii) that imposes any material restrictions on the business of the Company or any Company Subsidiary after the date of this Agreement;
(q) each Contract (excluding purchase orders given or received in the ordinary course of business in a manner consistent with past practice) with any Top Customer, Top Distributor or Top Supplier of the Company and the Company Subsidiaries; and
(r) each Contract relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating the creation of a Lien (other than Company Permitted Encumbrances) with respect to or affecting creditors’ rights generally and subject, as to enforceability, to the effect any material asset of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and neither the Company noror any Company Subsidiary. Except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect, there are no existing breaches or defaults on the Knowledge part of the Company, Company or any other party to such Contract is in material default or material breach of such Company Subsidiary under any Material Contract, and, to the Knowledge knowledge of the Company, there does not exist are no existing breaches or defaults on the part of any event, condition or omission that would constitute such a material default or material breach (whether by lapse of time or notice or both) other Person under any Assumed Material Contract. Each Material Contract is valid, has not been terminated prior to the date of this Agreement, is enforceable against the Company or any Contract disclosed or required the applicable Company Subsidiary that is a party to be disclosed on Section 3.11 such Material Contract, and, to the knowledge of the Disclosure ScheduleCompany, is enforceable against the other parties thereto, in each case subject to the General Enforceability Exception, and, in each case, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect. Since January 1, 2018Prior to the date of this Agreement, the Company has not made available to Parent accurate and complete copies of each Material Contract in effect as of the date of this Agreement, together with all amendments and supplements thereto in effect as of the date of this Agreement (excluding purchase orders given or received in the ordinary course of business in a manner consistent with past practice). As of the date of this Agreement, no Top Customer, no Top Distributor and no Top Supplier has canceled, terminated or substantially curtailed its relationship with the Company or any Company Subsidiary, given written notice of termination or nonrenewal with respect to any Assumed Contract the Company or any Contract disclosed Company Subsidiary of any intention to cancel, terminate or required to be disclosed on Section 3.11 of substantially curtail its relationship with the Disclosure Schedule andCompany or any Company Subsidiary, or, to the Knowledge knowledge of the Company, no other party threatened in writing to do any such Contract intends to provide any such noticeof the foregoing.
Appears in 1 contract
Sources: Merger Agreement (Bioventus Inc.)
Contracts. (a) Except as set forth on Section 3.11 3.15(a) of the Company Disclosure Schedule Letter lists (which (i) includes any amendment, supplement or modification to any Contract listed therein and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into pursuant with specific reference to the terms subsection of other Contracts listed therein), as of the date hereof, neither the Company nor any of its Subsidiaries is a party this Section 3.15(a) to or bound by any which it relates) each of the following Contracts that are Related to the Business:
(i) any Contract with any staffing company, temporary employee agency, professional employer organization or other similar company or agency;
(ii) any collective bargaining agreement or similar Contract with an employee representative or labor group representing any Business Employees;
(iii) any Contract relating to Indebtedness or to mortgaging, pledging or otherwise placing a Lien and agreements (other than a Permitted Lien) on any lease of the Transferred Assets or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangements;
(iv) any (A) Contract (or group of related Contracts) Company Leased Real Property and Contracts and agreements relating to or regarding Intellectual Property or (BProperty) IT Asset Contract (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee of less than $50,000 in the aggregate or for to which the Company has made less than $50,000 in customized improvements in the aggregate);
(v) any Contract which prohibits the Company or any of its Subsidiaries from is a party, subject to or bound, that is in effect as of the date of this Agreement (each such Contract or arrangement, together with any such Contracts or arrangements entered into after the date hereof, collectively being “Material Contracts”):
(i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K), whether or not filed by the Company with the SEC, made outside the ordinary course of business or inconsistent with past practice;
(ii) any employment or consulting Contract (in each case with respect to which the Company or an Affiliate has continuing obligations as of the date hereof) with any current or former (A) officer of the Company, (B) member of the Board, or (C) Business Employee or independent contractor of the Company providing for an annual compensation in excess of $250,000 or providing for severance or similar benefits in an amount in excess of $250,000;
(iii) any CBA covering or pertaining to any current Business Employee;
(iv) any joint venture, partnership or strategic alliance contract or investment agreement, in each case related to the formation, creation, operation, management or control of any partnership or joint venture in which the Company or any of its Subsidiaries owns any partial interest and that is material to the business of the Company and its Subsidiaries, taken as a whole;
(v) any settlement, conciliation or similar contract which would require the Company or any of its Subsidiaries to pay consideration of more than $5,000,000 (after taking into consideration any insurance proceeds available to the Company or any of its Subsidiary, as applicable, in respect thereof) or to satisfy any material non-monetary obligations, in each case after the date of this Agreement;
(vi) any Contract that contains any covenant limiting the ability of the Company or any of its Subsidiaries, as applicable, to engage in any line of business or compete with any Person or in any geography or not to engage in any activity or business, or pursuant to which any benefit is required to be given or lost as a result of so competing or otherwise freely engaging engaging;
(vii) any Contract that requires consent, approval or waiver of, or notice to, a Governmental Entity or other third party in the Business as event of or with respect to the Transactions (including the consummation of the exercise of the option of the Brookfield GP Investor to own a majority of the interests of the General Partner), including in order to avoid termination of or loss of a benefit under any such contract;
(viii) each Contract under which the Company or any of its Subsidiaries (A) has incurred any Indebtedness that is currently conducted anywhere owing or pursuant to which any Person has provided a commitment to make a loan or advance to the Company or any of its Subsidiaries, (B) has given any Guarantee or (C) has obligations (payment, performance or otherwise) that have been Guaranteed by the Parent and its Subsidiaries (other than the Company and its Subsidiaries);
(ix) each Contract under which (A) the Company has agreed to indemnify any Person or (B) Parent has agreed to indemnify (x) the Company, (y) the Company’s Subsidiaries or (z) any other Person in respect of the business of the Company or the Company’s Subsidiaries;
(x) each Contract creating or granting a Lien (including Liens upon properties acquired under conditional sales, capital leases or other title retention or security devices);
(xi) any Contract that grants any right of first refusal, right of first offer, right of first negotiation or similar right in favor of a party other than the Company or its Subsidiaries;
(xii) any Contract that obligates the Company or any of its Subsidiaries to conduct business on an exclusive or preferential basis or that contains a “most favored nation” or similar covenant with any third party or upon consummation of the Transactions will obligate the Company, the Investor or any of their respective Subsidiaries or Affiliates to conduct business on an exclusive or preferential basis or that results in a “most favored nation” or similar covenant with any third party;
(xiii) each Contract containing any provisions (A) dealing with a “change of control” or similar event with respect to the Company or any of its Subsidiaries, (B) prohibiting or imposing any restrictions on the assignment of such contract or any portion thereof by the Company or any of its Subsidiaries to any other Person (without regard to any exception permitting assignments to Subsidiaries or Affiliates), or (C) having the effect of providing that the consummation of any of the Transactions or compliance by the Company with the provisions of this Agreement or the Related Agreements (alone or in combination with any other event) or the execution, delivery of effectiveness of this Agreement or the Related Agreements (alone or in combination with any other event) will conflict with, result in violation or breach of, or constitute a default under (with or without notice or lapse of time, or both), such contract or give rise under such contract to any right of, or result in, termination, right of first refusal, amendment, revocation, cancellation or acceleration, or loss of a benefit, or the creation of any Lien in or upon any of the properties or assets of the Company or any of its Subsidiaries, or to any increased, guaranteed, accelerated or additional rights or entitlements of any Person;
(xiv) any Contract (A) for the acquisition, directly or indirectly (by merger or otherwise) of a material portion of the assets (other than goods, products or services in the world ordinary course) or capital stock or other equity interests of any Person for aggregate consideration in excess of $10,000,000 and that has not closed prior to the date hereof or pursuant to which the Company or any material of its Subsidiaries has continuing indemnification (other than indemnification obligations with respect to current or former directors and officers), “earn-out” or other similar contingent payment obligations that otherwise restricts are reasonably expected to exceed $10,000,000 in the aggregate after the date hereof or (B) gives any activities Person the right to acquire any assets of the Company or any of its Subsidiaries with respect to the Business as currently conducted in any material respect;
(vi) any Contract for the sale of Products or services, in each case, containing “most-favored nation” pricing terms or any exclusive dealing arrangement or any “requirements” Contract;
(vii) any Shared Contract;
(viii) any Contract with any Material Customer or Material Supplier (excluding ordinary course task orders commitments to purchase goods, products or service estimates containing terms and conditions materially consistent services) after the date hereof with a total consideration of more than $10,000,000;
(xv) each Contract between the Company’s standard terms and conditions)Company or any of its Subsidiaries, on the one hand, and any other Contract which involves the payment by or to, performance a customer of services by or for, or the delivery of goods by or to, or capital expenditures by, the Company or any of its Subsidiaries, on the other, which Contract involves consideration in excess of $750,000 in the aggregate over the shorter of: 10,000,000 and is (A) in connection with or related to the term of such Contract FPSO segment or (B) in connection with or related to the 2019 calendar yearshuttle tanker segment;
(Axvi) all Contracts evidencing any Contract relating to ownership of or investments in any business or enterprise and (B) partnership, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar ContractAffiliate Arrangements; and
(xxvii) any license or other Contract involving a Governmental Entity.
(b) Each Assumed Contract and each Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule is a legal, valid and binding obligation of the Company, and, to the Knowledge of the Company, each other party to such Contract, and is enforceable against the Company, and, to the Knowledge of the Company, each such other party in accordance with its terms subject, in each case, to the effect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and neither the Company nor, to the Knowledge of the Company, any other party to such Contract is in material default or material breach of such Contract, and, to the Knowledge of the Company, there does not exist any event, condition or omission that would constitute such a material default or material breach (whether by lapse of time or notice or both) under any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1, 2018, the Company has not received any written notice of termination or nonrenewal with respect to any Assumed Contract Intellectual Property, except for licenses of commercially-available software with a replacement cost or any Contract disclosed or required to be disclosed on Section 3.11 aggregate annual license and maintenance fees of the Disclosure Schedule and, to the Knowledge of the Company, no other party to any such Contract intends to provide any such noticeless than $100,000.
Appears in 1 contract
Sources: Investment Agreement (Teekay Offshore Partners L.P.)
Contracts. (a) Except as set forth on Section 3.11 2.16(a) of the Disclosure Schedule (with paragraph references corresponding to those set forth below) contains a true and complete list of each of the following Contracts or other arrangements (true and complete copies or, if none exist, reasonably complete and accurate written descriptions of which, together with all amendments and supplements thereto and all waivers of any terms thereof, have been delivered to Parent prior to the execution of this Agreement) to which Seller and the Seller Subsidiaries is a party or by which any of the Transferred Assets is bound:
(A) all Contracts (excluding Benefit Plans) providing for a commitment of employment or consultation services for a specified or unspecified term to, or otherwise relating to employment or the termination of employment of, any Employee, the name, position and rate of compensation of each Employee party to such a Contract and the expiration date of each such Contract; and (B) any written or unwritten representations, commitments, promises, communications or courses of conduct (excluding Benefit Plans and any such Contracts referred to in clause (A)) involving an obligation of Seller or any Seller Subsidiary to make payments in any year, other than with respect to salary or incentive compensation payments in the ordinary course of business, to any Employee exceeding US$75,000;
(ii) all Contracts with any Person containing any provision or covenant prohibiting or limiting the ability of Seller and the Seller Subsidiaries to engage in any business activity or compete with any Person in connection with the Business or prohibiting or limiting the ability of any Person to compete with Seller and the Seller Subsidiaries in connection with the Business;
(iii) all partnership, joint venture, shareholders' or other similar Contracts with any Person in connection with the Business;
(iv) all Contracts and Licenses with OEMs, distributors, resellers, suppliers, dealers, manufacturer's representatives, sales agencies or franchises with whom Seller and the Seller Subsidiaries deals, other than Parent, in connection with the Business;
(v) all Contracts relating to the future disposition or acquisition of any Transferred Assets, other than dispositions or acquisitions of Inventory in the ordinary course of business consistent with past practice;
(vi) all collective bargaining or similar labor Contracts covering any Employee;
(vii) all Contracts containing provisions that impose restrictions or requirements on the import, export or duty classification of the products manufactured or sold by the Business;
(viii) all Contracts to which any Governmental Authority is a party or an intended third-party beneficiary;
(ix) all Contracts and other arrangements between the Division and Seller's Component Products Division, including without limitation, cross- manufacturing and cross-marketing Contracts and arrangements;
(x) all Contracts of the types described in clauses (i) includes any amendment, supplement or modification to any Contract listed therein and through (iiix) shall which have not include Contracts that are invoices, statements of work or purchase orders yet been entered into by Seller and the Seller Subsidiaries, but which are currently under negotiation by Seller and the Seller Subsidiaries; and
(xi) all other Contracts (other than Benefit Plans, the Real Property Leases and insurance policies listed in Section 2.18 of the Disclosure Schedule) with respect to the Business that (A) involve the payment or potential payment, pursuant to the terms of other Contracts listed therein)any such Contract, as of the date hereof, neither the Company nor any of its Subsidiaries is a party to or bound by any of the following Contracts that are Related to the Business:
(i) any Contract with any staffing company, temporary employee agency, professional employer organization or other similar company or agency;
(ii) any collective bargaining agreement or similar Contract with an employee representative or labor group representing any Business Employees;
(iii) any Contract relating to Indebtedness or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any of the Transferred Assets or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangements;
(iv) any (A) Contract (or group of related Contracts) relating to or regarding Intellectual Property or (B) IT Asset Contract (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee of less than $50,000 in the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregate);
(v) any Contract which prohibits the Company Seller or any Seller Subsidiary of its Subsidiaries from competing or otherwise freely engaging in the Business as currently conducted anywhere in the world in any material respect or that otherwise restricts any activities of the Company or any of its Subsidiaries with respect to the Business as currently conducted in any material respect;
(vi) any Contract for the sale of Products or services, in each case, containing “most-favored nation” pricing terms or any exclusive dealing arrangement or any “requirements” Contract;
(vii) any Shared Contract;
(viii) any Contract with any Material Customer or Material Supplier (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditions), and any other Contract which involves the payment by or to, performance of services by or for, or the delivery of goods by or to, or capital expenditures by, the Company in excess of $750,000 in the aggregate over the shorter of: (A) the term of such Contract or (B) the 2019 calendar year;
(A) any Contract relating to ownership of or investments in any business or enterprise more than US$100,000 annually and (B) partnership, joint venture, co-owner, limited liability company collaboration cannot be terminated within thirty (30) days after giving notice of termination without resulting in any material cost or strategic alliance or other similar Contract; and
(x) any Contract involving a Governmental Entitypenalty to Seller and the Seller Subsidiaries.
(b) Each Assumed Contract Except for the Excluded Contracts and except as disclosed in Section 2.16(b) of the Disclosure Schedule, each Contract disclosed or required to be disclosed on in Section 3.11 2.16(a) of the Disclosure Schedule is in full force and effect and constitutes a legal, valid and binding obligation of the Companyagreement, and, to the Knowledge of the Company, each other party to such Contract, and is enforceable against the Company, and, to the Knowledge of the Company, each such other party in accordance with its terms subjectterms, of each party thereto; and, except as disclosed in each caseSection 2.16(b) of the Disclosure Schedule, to neither Seller, the effect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and neither the Company Seller Subsidiaries nor, to the Knowledge of the CompanySeller, any other party to such Contract is is, or has received notice that it is, in material default violation or material breach of or default under any such Contract (or with notice or lapse of time or both, would be in violation or breach of or default under any such Contract) in any material respect.
(c) Except as disclosed in Sections 2.03 or 2.16(c) of the Disclosure Schedule, andthe execution, delivery and performance by Seller and the Seller Subsidiaries of this Agreement and the Operative Agreements to which each is a party, and the consummation of the transactions contemplated hereby and thereby, will not (A) result in or give to any Person any right of termination, cancellation, acceleration or modification in or with respect to, (B) result in or give to any Person any additional rights or entitlement to increased, additional, accelerated or guaranteed payments under, or (C) result in the creation or imposition of any Lien upon Seller or the Seller Subsidiaries or any of the Transferred Assets under, any Business Contract.
(d) Neither Seller nor any of the Seller Subsidiaries is a party to, or bound by, any Contract or any provision of its certificate of incorporation or by-laws which (i) restricts the conduct of the Business anywhere in the world or (ii) contains any unusual or burdensome provisions which could reasonably be expected to have a material adverse effect upon the Condition of the Business, the value or utility of the Transferred Assets or the ability of the Seller or the Seller Subsidiaries to carry out the transactions contemplated hereby or by the Operative Agreements.
(e) Seller has previously provided Parent with copies of all of Seller's forms of purchase orders, sale orders and license agreements currently in use or in effect with respect to the Business. No purchase order or other Contract currently in effect and providing for the purchase of goods or services with respect to the Business when entered into by Seller was, to the Knowledge of Seller, in excess of the Companynormal, there does not exist any eventordinary, condition and usual requirements of the Business or omission that would constitute such a material default or material breach (whether by lapse of time or notice or bothat an excessive price. Except as disclosed in Section 2.16(e) under any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1, 2018, the Company Seller has not received entered into or accepted any written notice of termination sale or nonrenewal with respect to any Assumed purchase order or distributor, original equipment manufacturer Contract or any other Contract disclosed or required obligation relating to be disclosed on Section 3.11 sales of Transferred Assets, in each case which is currently in effect, (A) other than in the Disclosure Schedule andordinary course of business, pursuant to customary terms and conditions, or (B) intending or expecting that the Knowledge performance thereof would result in loss or in less than the Seller's customary profit margins for such sale of the Company, no other party to any such Contract intends to provide any such noticeproducts.
Appears in 1 contract
Sources: Stock Purchase Agreement (Standard Microsystems Corp)
Contracts. Schedule 4.7 sets forth a complete and correct list of all contracts of the following types to which the Company or any of the Subsidiaries is a party or by which the Company or any of the Subsidiaries or any of the assets of the Company or any of the Subsidiaries are bound and as to which the Company or any of the Subsidiaries has any outstanding obligations as of the date hereof (the "Contracts"):
(a) each contract for the employment, retention, severance or termination of any director, officer, employee, consultant, agent or group of employees of the Company or any of the Subsidiaries, each collective bargaining agreement covering any group of employees of the Company or any of the Subsidiaries and each noncompetition, confidentiality or similar agreement with any such person or persons;
(b) each profit sharing, bonus, incentive, deferred compensation, stock option, stock purchase, severance pay, thrift, pension, retirement, hospitalization or other similar plan, agreement or arrangement;
(c) each contract or option for the sale of any of the assets, properties or rights of the Company or any Subsidiary outside the ordinary course of business, (whether or not such sale would be accomplished by a sale of assets, a sale of shares, a merger or otherwise);
(d) each contract which contains any provisions requiring the Company or any of the Subsidiaries to indemnify or act for any other person or entity or to guaranty or act as surety for any other person or entity, except for any contract under which the Company or any of the Subsidiaries is obligated for less than $50,000;
(e) each contract restricting the Company or any of the Subsidiaries from conducting any type of business for any period of time or restricting their use or disclosure of any confidential or proprietary information;
(f) each partnership, joint venture or management contract or similar arrangement or agreement which involves a right to share profits or future payments;
(g) each licensing, distributor, dealer, franchise, sales or manufacturer's representative, agency or other similar contract which entails aggregate payments by the Company or any of its Subsidiaries of more than $50,000;
(h) each contract under which the Company or any of the Subsidiaries performs services;
(i) each lease, license, sublease, sublicense or agreement with respect to any real property or aIny interest therein;
(j) each lease, license, sublease, sublicense, agreement or arrangement with respect to the use or ownership of any tangible personal property by the Company or any of the Subsidiaries and which entails aggregate annual payments of more than $25,000; and
(k) any other agreement which entails aggregate annual payments by the Company or any of the Subsidiaries of more than $50,000;
(l) each agreement pursuant to which any professional of the type described under 42 C.F.R. ss.410.20(b) renders services on behalf of the Company;
(m) each agreement with referral sources, whether or not related to the referrals, including "sub-contracting agreements" with respect to Medicare and Medicaid patients. Except as set forth on Section 3.11 Schedule 4.7, each of the Disclosure Contracts is valid, binding and enforceable in accordance with its terms and is in full force and effect. Except as set forth on Schedule (which (i) includes any amendment, supplement or modification to any Contract listed therein and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into pursuant to the terms of other Contracts listed therein), as of the date hereof4.7, neither the Company nor any of its the Subsidiaries is a in default under any material provision of any Contract and has not given any party to any contract any written notice of default, set-off or bound by claim of default. To the knowledge of the Principal Shareholders and the Company, the parties to the Contracts other than the Company and the Subsidiaries are not in default of any of their respective obligations under the following Contracts that are Related to Contracts, and there has not occurred any event which with the Business:
passage of time or the giving of notice (ior both) would constitute a default under any Contract with any staffing company, temporary employee agency, professional employer organization or by such other similar company or agency;
(ii) any collective bargaining agreement or similar Contract with an employee representative or labor group representing any Business Employees;
(iii) any Contract relating to Indebtedness or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any of the Transferred Assets or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangements;
(iv) any (A) Contract (or group of related Contracts) relating to or regarding Intellectual Property or (B) IT Asset Contract (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee of less than $50,000 in the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregate);
(v) any Contract which prohibits parties. All amounts payable by the Company or any of its the Subsidiaries from competing under the Contracts are, and will at the Closing Date, be current. The Company has either delivered or otherwise freely engaging in the Business as currently conducted anywhere in the world in any material respect or that otherwise restricts any activities made available to Buyer complete copies of each of the Company Contracts or any of its Subsidiaries with respect to the Business as currently conducted written descriptions in any material respect;
(vi) any Contract for the sale of Products or services, in each case, containing “most-favored nation” pricing terms or any exclusive dealing arrangement or any “requirements” Contract;
(vii) any Shared Contract;
(viii) any Contract with any Material Customer or Material Supplier (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditions), and any other Contract which involves the payment by or to, performance of services by or for, or the delivery of goods by or to, or capital expenditures by, the Company in excess of $750,000 in the aggregate over the shorter of: (A) the term of such Contract or (B) the 2019 calendar year;
(A) any Contract relating to ownership of or investments in any business or enterprise and (B) partnership, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar Contract; and
(x) any Contract involving a Governmental Entity.
(b) Each Assumed Contract and each Contract disclosed or required to be disclosed on Section 3.11 reasonable detail of the Disclosure Schedule is a legal, valid and binding obligation of the Company, and, to the Knowledge of the Company, each other party to such Contract, and is enforceable against the Company, and, to the Knowledge of the Company, each such other party in accordance with its terms subject, in each case, to the effect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and neither the Company nor, to the Knowledge of the Company, any other party to such Contract is in material default or material breach of such Contract, and, to the Knowledge of the Company, there does not exist any event, condition or omission that would constitute such a material default or material breach (whether by lapse of time or notice or both) under any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1, 2018, the Company has not received any written notice of termination or nonrenewal with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge of the Company, no other party to any such Contract intends to provide any such noticesame.
Appears in 1 contract
Contracts. Schedule 3.15 sets forth a true and complete list of the following contracts, commitments and other agreements to which the Company or any of its Subsidiaries are a party or by which it or its assets is bound:
(a) Except as set forth any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for lease payments in excess of $75,000 per annum;
(b) any agreement (or group of related agreements) for the purchase or sale of supplies, products or other personal property or for the furnishing or receipt of services which involve consideration in excess of $75,000;
(c) any agreement for the formation or governance of a partnership or joint venture;
(d) any agreement (or group of related agreements) under which the Company or any of its Subsidiaries have created, incurred, assumed or guaranteed any Indebtedness or under which the Company or any of its Subsidiaries have imposed a Lien on Section 3.11 any of its assets, tangible or intangible;
(e) any agreement containing non-competition, non-solicitation or exclusivity provisions granted by the Company or any of its Subsidiaries in favor of a third party;
(f) any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance or other plan or arrangement for the benefit of the Disclosure Schedule Company’s or its Subsidiaries’ current or former directors, managers, officers, employees and consultants;
(which g) any employment, consulting or severance agreement between any individual and the Company or any of its Subsidiaries, and any non-compete, confidentiality, trade secrets or similar agreement with or by employees or consultants of the Company or any of its Subsidiaries;
(h) any collective bargaining agreement or similar labor agreement;
(i) includes any amendment, supplement agreement under which the Company or modification its Subsidiaries have made an advance or loan to any other Person;
(j) any agreement under which the Company or any of its Subsidiaries is, or may become, obligated to indemnify or contribute to the liabilities of another Person;
(k) any other agreement (or group of related agreements) the performance of which involves consideration to be paid or received by the Company or any of its Subsidiaries in excess of $75,000;
(l) any agreement with Seller or any Affiliate thereof;
(m) any agreement with any Governmental Authority;
(n) any agreement concerning the sale or acquisition of a business or a portion thereof or assets relating thereto; and
(o) each other Contract listed therein not otherwise covered by clauses (a) through (n), the loss of which or breach of which would result in a Material Adverse Effect. With respect to each agreement set forth in Schedule 3.15: (i) the agreement is legal, valid, binding, enforceable and in full force and effect against the Company or any of its Subsidiaries and, to Seller’s Knowledge, each other party thereto; (ii) shall not include Contracts that are invoicesneither the Company or any of its Subsidiaries nor, statements to Seller’s Knowledge, any other party, is in material breach or default and, to Seller’s Knowledge, no event has occurred which with notice or lapse of work time would constitute a material breach or purchase orders entered into pursuant default or permit termination, modification or acceleration, under the agreement; (iii) to the terms of other Contracts listed therein)Seller’s Knowledge, as no party has repudiated any provision of the date hereof, agreement; (iv) neither the Company nor any of its Subsidiaries is a has received written notice that any party to the agreement intends to cancel, not renew or bound by any of terminate the following Contracts that are Related to the Business:
(i) any Contract with any staffing company, temporary employee agency, professional employer organization or other similar company or agency;
(ii) any collective bargaining agreement or similar Contract with an employee representative to exercise or labor group representing not exercise any Business Employees;
(iii) any Contract relating to Indebtedness or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any of option under the Transferred Assets or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangements;
(iv) any (A) Contract (or group of related Contracts) relating to or regarding Intellectual Property or (B) IT Asset Contract (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee of less than $50,000 in the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregate);
agreement; and (v) any Contract which prohibits to Seller’s Knowledge, the Company agreement will not be terminated or cancelled, or the Company’s or its Subsidiaries’ rights thereunder diminished or impaired, or the Company’s or any of its Subsidiaries from competing or otherwise freely engaging in the Business Subsidiaries’ obligations thereunder increased, as currently conducted anywhere in the world in any material respect or that otherwise restricts any activities a result of the Company or any of its Subsidiaries with respect to the Business as currently conducted in any material respect;
(vi) any Contract for the sale of Products or services, in each case, containing “most-favored nation” pricing terms or any exclusive dealing arrangement or any “requirements” Contract;
(vii) any Shared Contract;
(viii) any Contract with any Material Customer or Material Supplier (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditions), and any other Contract which involves the payment Units contemplated by or to, performance of services by or for, or the delivery of goods by or to, or capital expenditures by, the Company in excess of $750,000 in the aggregate over the shorter of: (A) the term of such Contract or (B) the 2019 calendar year;
(A) any Contract relating to ownership of or investments in any business or enterprise and (B) partnership, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar Contract; and
(x) any Contract involving a Governmental Entitythis Agreement.
(b) Each Assumed Contract and each Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule is a legal, valid and binding obligation of the Company, and, to the Knowledge of the Company, each other party to such Contract, and is enforceable against the Company, and, to the Knowledge of the Company, each such other party in accordance with its terms subject, in each case, to the effect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and neither the Company nor, to the Knowledge of the Company, any other party to such Contract is in material default or material breach of such Contract, and, to the Knowledge of the Company, there does not exist any event, condition or omission that would constitute such a material default or material breach (whether by lapse of time or notice or both) under any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1, 2018, the Company has not received any written notice of termination or nonrenewal with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge of the Company, no other party to any such Contract intends to provide any such notice.
Appears in 1 contract
Contracts. (a) Except as set forth on Section 3.11 of the Disclosure Schedule (which (i) includes any amendment, supplement or modification to any Contract listed therein and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into pursuant to the terms of other Contracts listed therein), as of the date hereof, neither Neither the Company nor any of its Subsidiaries is a party to or bound by by, and neither they nor their properties are subject to, any contracts, agreements or arrangements required 29 to be disclosed in a Form 10-K, Form 10-Q or Form 8-K under the Exchange Act which is not filed as an exhibit to one or more of the following Contracts that are Related Company Reports filed and made publicly available prior to the Business:date of this Agreement
(ib) any Contract with any staffing company, temporary employee agency, professional employer organization or other similar company or agency;
(ii) any collective bargaining agreement or similar Contract with an employee representative or labor group representing any Business Employees;
(iii) any Contract relating to Indebtedness or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any of the Transferred Assets or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangements;
(iv) any (A) Contract (or group of related Contracts) relating to or regarding Intellectual Property or (B) IT Asset Contract (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee of less than $50,000 in the aggregate or for which Neither the Company has made less than $50,000 in customized improvements in the aggregate);
(v) any Contract which prohibits the Company or nor any of its Subsidiaries from competing is a party to, or otherwise freely engaging bound by, any undischarged written or oral: (i) agreement or arrangement to which the Company or its Subsidiaries is a party or by which the Company or its Subsidiaries or any of their respective assets is bound which would be required to be filed as an exhibit to the Company's Annual Report on Form 10-K for the year ended September 30, 1999; (ii) except as set forth in the Business as currently conducted anywhere Disclosure Statement, any agreement or arrangement obligating the Company or its Subsidiaries to pay or receive, or pursuant to which the Company or its Subsidiaries has previously paid or received, an amount in excess of $20,000 (excluding purchase and sale orders entered into by the Company or its Subsidiaries in the world ordinary course of business consistent with past practices); (iii) except as set forth in the Disclosure Statement, any employment or consulting agreement or arrangement involving an amount in excess of $15,000; (iv) plan or contract or arrangement providing for bonuses, severance, options, deferred compensation, retirement payments, profit sharing, medical and dental benefits or the like covering employees of the Company, other than Plans, Welfare Plans and Employee Benefit Plans (in each case as defined herein) described in the Disclosure Statement; (v) agreement restricting in any material respect manner the Company's right to compete with any other person or that otherwise restricts entity, the Company's right to sell to or purchase from any activities other person or entity, the right of any other party to compete with the Company, or the ability of such person or entity to employ any of the Company's employees; (vi) secrecy or confidentiality agreements (except for secrecy and confidentiality agreements which (A) are terminable at will at any time by the Company, (B) do not provide for any payment of consideration and (C) do not contain any "standstill" provision or similar restriction on the Company's ability to negotiate an acquisition of another entity); (vii) except as set forth in the Disclosure Statement, any distributorship, non-employee commission or marketing agent, representative or franchise agreement providing for the marketing and/or sale of the products or services of the Company or any of its Subsidiaries with respect to the Business as currently conducted in any material respect;
(vi) any Contract for the sale of Products or services, in each case, containing “most-favored nation” pricing terms or any exclusive dealing arrangement or any “requirements” Contract;
(vii) any Shared Contract;
Subsidiaries; (viii) agreement between the Company and any Contract with any Material Customer of its affiliates or Material Supplier other Related Parties (as herein defined) (excluding ordinary course task orders any such agreement disclosed in the Company Form 10-K); (ix) any guaranty, performance, bid or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditions), and any other Contract which involves the payment by or to, performance of services by or forcompletion bond, or the delivery of goods by surety or to, or capital expenditures by, the Company in excess of $750,000 in the aggregate over the shorter of: indemnification agreement (A) the term of such Contract or (B) the 2019 calendar year;
excluding (A) any Contract relating to ownership of or investments in any business or enterprise such item between the Company and its Subsidiaries; (B) partnershipany indemnification agreement entered into in the Company's and/or its Subsidiaries' ordinary course of business with a customer of the Company (such ordinary course of business policy is set forth in all material respects in the general performance agreements attached to the Disclosure Statement) and (C) any indemnification obligation the Company has with respect to its officers, joint venturedirectors, co-owneremployees and/or other Persons under its Certificate of Incorporation or Bylaws and the applicable provisions of the DGCL unless set forth in the form of an agreement, limited liability company collaboration or strategic alliance or other similar Contractthen only to the extent set forth in the Disclosure Statement; and
(x) any Contract involving a Governmental Entity.
(b) Each Assumed Contract and each Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule is a legal, valid and binding obligation of the Company, and, to the Knowledge of the Company, each other party to such Contract, and is enforceable against the Company, and, to the Knowledge of the Company, each such other party in accordance with its terms subject, in each case, to the effect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and neither the Company nor, to the Knowledge of the Company, any other party to such Contract is in material default or material breach of such Contract, and, to the Knowledge of the Company, there does not exist any event, condition or omission that would constitute such a material default or material breach (whether by lapse of time or notice or both) under any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1, 2018, the Company has not received any written notice of termination or nonrenewal with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge of the Company, no other party to any such Contract intends to provide any such notice.requirements contract;
Appears in 1 contract
Contracts. (a) Except as set forth on Section 3.11 4.11(a) of the Disclosure Schedule (Letter sets forth a list of the following contracts to which (i) includes the Company or any amendment, supplement Company Subsidiary is a party or modification to any Contract listed therein and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into pursuant to the terms of other Contracts listed therein), is otherwise bound as of the date hereof, neither the Company nor any of its Subsidiaries is a party to or bound by any of the following Contracts that are Related to the Business:this Agreement (“Material Contracts”):
(i) (A) any Contract contract (other than any Lease) that would reasonably be expected to involve future payments by or to Seller or the Retained Subsidiaries, with respect to the Business, the Company or any Company Subsidiary, of more than $500,000 in any twelve (12) month period or require performance by any party more than one (1) year from the date of this Agreement that, in either case, are not terminable by the Company or such Company Subsidiary without penalty by providing notice one hundred and eighty (180) days or less prior to termination or (B) any contract with any staffing companysupplier, temporary employee agencyvendor or contractor for the acquisition of goods or services pursuant to which the Company has made, professional employer organization since January 1, 2018, or other similar company or agencyis reasonably expected to make during the current fiscal year, any individual payment in excess of $250,000;
(ii) any collective bargaining agreement contract that requires the purchase of all of the Business’ requirements for a given product or similar Contract with an employee representative service from a given third party, which product or labor group representing any Business Employeesservice is material to the Business, the Company and the Company Subsidiaries taken as a whole;
(iii) any Contract relating contract that obligates Seller or the Retained Subsidiaries, with respect to Indebtedness the Business, the Company or any Company Subsidiary to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) conduct business on an exclusive basis with any of the Transferred Assets or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangementsthird party;
(iv) any contract, including any employment, compensation, loan, or severance agreement with Seller or the Retained Subsidiaries, with respect to the Business, the Company or any Company Subsidiary or any current director, manager, officer, employee, or agent of Seller or the Retained Subsidiaries, with respect to the Business, the Company or any Company Subsidiary, providing for annual compensation in excess of $150,000;
(v) any contract entered into within the past twelve (12) months (or that has remaining obligations of Seller or any Affiliate thereof, including the Company or any Company Subsidiary) relating to the acquisition by the Company or any Company Subsidiary of any other material business or Person, whether by merger, consolidation or other business combination or by the acquisition of the equity securities, or a material portion of the assets of, such business or Person;
(vi) any contract entered into within the past twelve (12) months (or that has remaining obligations of Seller or any Affiliate thereof, including the Company or any Company Subsidiary) providing for the sale, transfer or other disposition of (x) any equity securities of the Company or any Company Subsidiary or (y) any material assets of the Business, the Company or any Company Subsidiary for consideration in excess of $1,000,000;
(vii) any contract under which the Company or any Company Subsidiary has incurred outstanding Indebtedness or guaranteed the outstanding Indebtedness of any other Person, in each case in excess of $100,000;
(viii) any joint venture, product development, research and development or limited partnership agreement involving a sharing of profits, losses, costs or liabilities by the Company or any Company Subsidiary with any other Person;
(ix) any contract relating to capital lease obligations of Seller or the Retained Subsidiaries, with respect to the Business, the Company or any Company Subsidiary;
(x) any contract entered into in the last twenty-four (24) months relating to the settlement of any dispute under which the Company or any Company Subsidiary has or had monetary obligations in excess of $1,000,000;
(xi) any contract that limits or purports to limit, in any material respect, the ability of the Business, the Company or any Company Subsidiary to compete in any line of business currently conducted by the Business, the Company or any Company Subsidiary in any geographical area or during any period of time (the “Restrictive Obligations”);
(xii) contracts pursuant to which (A) Contract (Seller or group of related Contracts) relating the Retained Subsidiaries, with respect to the Business, the Company or regarding any Company Subsidiary is granted a license to Intellectual Property or (B) IT Asset Contract Seller or the Retained Subsidiaries, with respect to the Business, the Company or any Company Subsidiary grants to any Person a license to Intellectual Property owned by Seller or the Retained Subsidiaries, with respect to the Business, the Company or any Company Subsidiary, in each case, that is material to the Business, the Company and the Company Subsidiaries, taken as a whole, other than (excluding commercially 1) licenses for generally available, commercial off-the-shelf Software with a replacement cost or software having an annual license fee acquisition price of less than $50,000 50,000, and (2) customer agreements for the Business’, the Company’s or any Company Subsidiary’s products and services granted in the aggregate ordinary course of business pursuant to which such license to Intellectual Property is incidental to the provision of products or for which services to or by Seller or the Company has made less than $50,000 in customized improvements in Retained Subsidiaries, with respect to the aggregate);
(v) any Contract which prohibits Business, the Company or any of its Subsidiaries from competing or otherwise freely engaging in the Business as currently conducted anywhere in the world in Company Subsidiary; and
(xiii) written contracts that would reasonably be expected to involve any material respect or that otherwise restricts any activities of individual future payment by the Company or any of its Subsidiaries with respect to the Business as currently conducted in any material respect;
(vi) any Contract for the sale of Products or servicesCompany Subsidiary, in each case, containing “most-favored nation” pricing terms or any exclusive dealing arrangement or any “requirements” Contract;
(vii) any Shared Contract;
(viii) any Contract with any Material Customer or Material Supplier (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditions), and any other Contract which involves the payment by or to, performance of services by or for, or the delivery of goods by or to, or capital expenditures by, the Company in excess of $750,000 50,000 in the aggregate over the shorter of: (A) the term of such Contract or (B) the 2019 any calendar year;
, in connection with the acquisition of goods, services or supplies, including, but not limited to, (Aa) any Contract relating to ownership purchase or supply agreements for lumber or engineered wood, (b) agreements for the purchase of electric power or investments in any business or enterprise natural gas, (c) software support agreements, (d) service agreements and (Bd) partnershipequipment design, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar Contract; and
(x) any Contract involving a Governmental Entitymanufacture and installation agreements.
(b) Each Assumed Contract and each Contract disclosed Seller has provided or required made available to be disclosed on Section 3.11 Buyer copies of all written Material Contracts. Neither of the Disclosure Schedule Company, any Company Subsidiary nor, to the Knowledge of Seller, any other party thereto is in material breach of or material default under any Material Contract and, to the Knowledge of Seller, no event has occurred that, with the passage of time or the giving of notice or both, would constitute such a legalmaterial breach or material default. Neither the Company nor any Company Subsidiary has received a written notice of material breach or material default or any event that with notice or lapse of time, or both, would constitute a material breach or material default by the Company or any Company Subsidiary of any Material Contract. Each of the Material Contracts constitutes the valid and binding obligation of the CompanyCompany or applicable Company Subsidiary, and, to the Knowledge of the CompanySeller, each other party to such Contractthereto, and is enforceable against the CompanyCompany or a Company Subsidiary, as applicable, and, to the Knowledge of the CompanySeller, each such other party thereto in accordance with its terms subjectterms, in each caseexcept as such enforceability may be limited by bankruptcy, to the effect of any applicable Laws relating to bankruptcyinsolvency, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, moratorium or similar Laws relating to or affecting creditors’ rights right generally and subject, as to enforceability, to the effect of by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and neither the Company nor, to the Knowledge of the Company, any other party to such Contract is in material default or material breach of such Contract, and, to the Knowledge of the Company, there does not exist any event, condition or omission that would constitute such a material default or material breach (whether by lapse of time or notice or both) under any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1, 2018, the Company has not received any written notice of termination or nonrenewal with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge of the Company, no other party to any such Contract intends to provide any such noticeequitable principles.
Appears in 1 contract
Sources: Stock Purchase Agreement (Armstrong Flooring, Inc.)
Contracts. (a) Except as set Schedule 5.10(a) sets forth on Section 3.11 of the Disclosure Schedule (which (i) includes any amendment, supplement or modification to any Contract listed therein a true and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into pursuant to the terms of other Contracts listed therein), complete list as of the date hereof, neither the Company nor any of its Subsidiaries is a party to or bound by any of the following Contracts that are Related effective as of the date hereof and to which Acquiror or Nxu Tech is a party or is bound (all such Contracts set forth on Schedule 5.10(a), or which are required to be so disclosed, the Business:“Acquiror Material Contracts”):
(i) any Contract all such Contracts with any staffing company, temporary employee agency, professional employer organization or other similar company or agencythird party manufacturers and suppliers for the manufacture and supply of products;
(ii) any collective bargaining agreement all such Contracts with (or similar Contract with an employee representative or labor group representing any Business Employeesobligations of Acquiror to) a Related Party;
(iii) all such Contracts that contain any Contract relating covenant materially limiting or prohibiting the right of Acquiror (A) to Indebtedness engage in any line of business or conduct business in any geographic area, (B) to mortgagingdistribute or offer any products or services, pledging or otherwise placing (C) to compete with any other person in any line of business or in any geographic area or levying a Lien (fine, charge or other than a Permitted Lien) on payment for doing any of the Transferred Assets or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangementsforegoing;
(iv) any (A) Contract (or group of related Contracts) relating to or regarding Intellectual Property or (B) IT Asset Contract (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee of less than $50,000 all such Contracts in which the aggregate outstanding expenditure or for which the Company has made less than payment obligations of Acquiror or Nxu Tech exceeds $50,000 250,000, excluding obligations that are contingent liabilities in customized improvements in the aggregate)respect of a breach or indemnification obligation or similar contingent obligation as a result of a breach or default;
(v) any Contract which prohibits for the Company use by Acquiror or Nxu Tech of any of its Subsidiaries from competing or otherwise freely engaging in the Business as currently conducted anywhere in the world in any material respect or that otherwise restricts any activities of the Company or any of its Subsidiaries with respect to the Business as currently conducted in any material respecttangible property;
(vi) any Contract partnership, joint venture or other similar agreement or arrangement providing for the sale formation, creation, operation, management or control of Products any partnership or servicesjoint venture with a third party to which Acquiror or Nxu Tech is a party, in each case, containing “mostother than bona fide customer-favored nation” pricing terms supplier relationships or any exclusive dealing arrangement or any “requirements” Contracta trade association;
(vii) all such Contracts providing for the acquisition or disposition of any Shared Contractbusiness, equity interests or material assets (whether by merger, sale of stock, sale of assets or otherwise) pursuant to which Acquiror or Nxu Tech has any ongoing obligation (including for deferred purchase price obligations, earn-out obligations, indemnification obligations and other contingent liabilities (including payment obligations in respect of the future utilization of any net operating losses));
(viii) all such Contracts that obligate Acquiror or Nxu Tech to make any Contract with any Material Customer loans, advances or Material Supplier (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditions), and any other Contract which involves the payment by or to, performance of services by or for, or the delivery of goods by or capital contributions to, or capital expenditures byinvestments in, the Company in excess of $750,000 any Person (other than advances to employees for business expenses in the aggregate over the shorter of: (A) the term ordinary course of such Contract or (B) the 2019 calendar yearbusiness consistent with past practice);
(Aix) any Contract note, mortgage, indenture or other obligation or agreement or other instrument for or relating to ownership indebtedness for borrowed money, or any guarantee of third-party obligations, or investments in any business or enterprise and (B) partnershipletters of credit, joint venture, co-owner, limited liability company collaboration or strategic alliance performance bonds or other similar Contract; andcredit support for Acquiror or Nxu Tech;
(x) any Contract involving that creates guarantees or Liens of any nature on Acquiror’s or Nxu Tech’s assets not in the ordinary course of business;
(xi) any CBA;
(xii) all such Contracts or agreements with any employee, officer, director or other individual service provider that (A) provide for annual compensation in excess of $100,000, (B) are not terminable by Acquiror or Nxu Tech on no more than thirty (30) days’ notice and without liability or financial obligation to Acquiror other than accrued compensation and other payments required by Law or (C) provide for sale, change in control, severance, retention, transaction or similar bonuses, or any other compensation or benefits triggered or accelerated in connection with or otherwise related to the consummation of the transaction contemplated hereby, whether alone or in connection with any other event, that are (or may become) payable to any current or former employee of or other service provider to Acquiror or Nxu Tech;
(xiii) all Contracts entered into to settle or resolve any material Intellectual Property-related dispute, including settlement agreements, covenants not to sue, consent agreements, and co-existence agreements;
(xiv) all Contracts providing for the development of any material Intellectual Property, independently or jointly, by or for Acquiror or Nxu Tech, other than Contracts entered into pursuant to a Governmental Entityform employee or independent contractor invention assignment agreement between Acquiror or Nxu Tech and an employee or independent contractor of Acquiror or Nxu Tech regarding the development of Intellectual Property by such employee or independent contractor; and
(xv) all Contracts pursuant to which Acquiror or Nxu Tech (A) grants or (B) is granted a license (whether or not such license is currently exercisable) to, or other rights under, any Intellectual Property, excluding, in the case of (A), Permitted Liens, and in the case of (B), any Commercially Available Software.
(b) Each Assumed Except as set forth in Schedule 5.10(b), neither of Acquiror nor Nxu Tech (i) is, nor has it received written notice that any other party to any Acquiror Material Contract and each is, in material violation or material breach of or material default (immediately or upon notice or lapse of time) under or (ii) has waived or failed to enforce any material rights or material benefits under any Acquiror Material Contract disclosed to which it is a party or required any of its properties, rights or other assets is subject. Except as set forth in Schedule 5.10(b), no Material Contract is the subject of a notice to be disclosed on Section 3.11 terminate, except for any expiration of the Disclosure term of an Acquiror Material Contract following the date of this Agreement in accordance with its terms. Except as set forth in Schedule 5.10(b), each Acquiror Material Contract is a in full force and effect and, subject to the Enforceability Exceptions, is legal, valid and binding obligation of on the CompanyAcquiror or Nxu Tech, as applicable, and, to the Knowledge of the CompanyAcquiror, each other party thereto, except as would not reasonably be expected to have a Material Adverse Effect on Acquiror or Nxu Tech. Except as set forth in Schedule 5.10(b), there is no default under any such ContractMaterial Contracts by Acquiror or Nxu Tech, and is enforceable against the Companyas applicable, andor, to the Knowledge of the CompanyAcquiror, each such any other party in accordance thereto, and no event has occurred that with its terms subjectthe lapse of time or the giving of notice or both would constitute a default thereunder by Acquiror or Nxu Tech, as applicable, or, to the Knowledge of Acquiror, any other party thereto, in each case, to the effect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance except as would not have a Material Adverse Effect on Acquiror or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and neither the Company nor, to the Knowledge of the Company, any other party to such Contract is in material default or material breach of such Contract, and, to the Knowledge of the Company, there does not exist any event, condition or omission that would constitute such a material default or material breach (whether by lapse of time or notice or both) under any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1, 2018, the Company has not received any written notice of termination or nonrenewal with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge of the Company, no other party to any such Contract intends to provide any such noticeNxu Tech.
Appears in 1 contract
Sources: Merger Agreement (Nxu, Inc.)
Contracts. (a) Except Schedule 4.9 lists all Contracts contained in the Business Assets, in each case as set forth on Section 3.11 of the Disclosure Schedule (which date of this Agreement, (i) includes any amendmentthe performance of which is reasonably expected to involve payment or receipt by the Business of aggregate consideration in excess of $50,000,000 in the 12-month period immediately following the date hereof, supplement or modification to any Contract listed therein and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into pursuant to which the terms Business is committed to make a capital expenditure or to purchase a capital asset in excess of $5,000,000 that is not contemplated by the fiscal year 2007 capital expenditure budget for the Business, (iii) between the Business or a Transferred Subsidiary, on the one hand, and a Seller or an Affiliate of another Seller, on the other hand, (iv) that contain a non-compete provision or similar covenant restricting the Business or any Transferred Subsidiary from competing with another Person or engaging in any line of business or (v) of the type described in the enumerated list below in this SECTION 4.9(A) (collectively, the "Material Contracts"). The Sellers have made available to the Buyer a correct and complete copy of each Material Contract. Schedule 4.9 lists the following Contracts listed therein)to which any Transferred Subsidiary is a party or that is, as of the date hereof, neither contained in the Company nor any of its Subsidiaries is a party to or bound by any of the following Contracts that are Related to the BusinessBusiness Assets:
(i) any Contract relating to Indebtedness of any Transferred Subsidiary or any guarantee by any Transferred Subsidiary or, with respect to the Business, any staffing company, temporary employee agency, professional employer organization or Seller of any Indebtedness of any other similar company or agencyPerson;
(ii) any collective bargaining joint development or collaboration agreement and any other Contract pursuant to which the Business licenses (as licensee or similar Contract with an employee representative licensor) any material Intellectual Property or labor group representing any Business EmployeesSoftware;
(iii) any Contract relating to Indebtedness joint venture contract, partnership agreement, limited liability company agreement or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any of the Transferred Assets or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangementsContract;
(iv) any (A) Contract (or group of related Contracts) relating to the purchase or regarding Intellectual Property sale of any business, business unit, division, facility or subsidiary of any Person or any equity interest of, or all or any substantial portion of, the assets of, any business, corporation or other Person (whether by merger, sale of stock, sale of assets or otherwise) in each case either (i) for consideration in excess of $10,000,000 or (Bii) IT Asset Contract under which any Transferred Subsidiary has any obligation or liability (excluding commercially available, off-the-shelf Software with a replacement cost contingent or an annual license fee otherwise) after the date of less than this Agreement that is reasonably expected to exceed $50,000 in the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregate)10,000,000;
(v) any Contract which prohibits the Company with "take or any of its Subsidiaries from competing or otherwise freely engaging in the Business as currently conducted anywhere in the world in any material respect or that otherwise restricts any activities of the Company or any of its Subsidiaries with respect to the Business as currently conducted in any material respect;
(vi) any Contract for the sale of Products or services, in each case, containing “most-favored nation” pricing terms or any exclusive dealing arrangement or any “requirements” Contract;
(vii) any Shared Contract;
(viii) any Contract with any Material Customer or Material Supplier (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditions), and any other Contract which involves the payment by or to, performance of services by or forpay" provisions, or "requirements" provisions obligating a Person to provide the delivery quantity of goods or services required by or to, or capital expenditures by, the Company in excess of $750,000 in the aggregate over the shorter of: (A) the term of such Contract or (B) the 2019 calendar yearanother Person;
(A) any Contract relating to ownership of or investments in any business or enterprise and (B) partnership, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar Contract; and
(x) any Contract involving a Governmental Entity.
(b) Each Assumed Contract and each Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule is a legal, valid and binding obligation of the Company, and, to the Knowledge of the Company, each other party to such Contract, and is enforceable against the Company, and, to the Knowledge of the Company, each such other party in accordance with its terms subject, in each case, to the effect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and neither the Company nor, to the Knowledge of the Company, any other party to such Contract is in material default or material breach of such Contract, and, to the Knowledge of the Company, there does not exist any event, condition or omission that would constitute such a material default or material breach (whether by lapse of time or notice or both) under any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1, 2018, the Company has not received any written notice of termination or nonrenewal with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge of the Company, no other party to any such Contract intends to provide any such notice.
Appears in 1 contract
Contracts. (aPart 2.11(a) Except as set forth on Section 3.11 of the Disclosure Schedule (which (i) includes any amendment, supplement or modification to any Contract listed therein and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into pursuant to the terms of other Contracts listed therein), as of the date hereof, neither the Company nor any of its Subsidiaries is a party to or bound by any accurately identifies each of the following Contracts that are Related to the Business:
(i) any Contract with any staffing company, temporary employee agency, professional employer organization or other similar company or agency;
(ii) any collective bargaining agreement or similar Contract with an employee representative or labor group representing any Business Employees;
(iii) any Contract relating to Indebtedness or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any of the Transferred Assets or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangements;
(iv) any (A) Contract (or group of related Contracts) relating to or regarding Intellectual Property or (B) IT Asset Contract (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee of less than $50,000 in the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregate);
(v) any Contract which prohibits the Company or any of its Subsidiaries from competing or otherwise freely engaging in the Business as currently conducted anywhere in the world in any material respect or that otherwise restricts any activities contracts and agreements of the Company or any of its Subsidiaries as of the date hereof:
(i) (A) each Company Contract relating to the employment of, or the performance of services by, any Company Employee earning annual base compensation in excess of $75,000; (B) any Company Contract pursuant to which the Company or any of its Subsidiaries is obligated to make any severance, termination or similar payment to any Company Employee; and (C) any Company Contract pursuant to which the Company or any of its Subsidiaries is obligated to make any bonus or similar payment (other than payment in respect of salary) to any Company Employee;
(ii) each Company Contract which provides for indemnification of any Company Employee or any Company Director;
(iii) each Company Contract relating to the voting and any other rights or obligations of a stockholder of the Company;
(iv) each Company Contract, with obligations remaining to be performed (or liabilities continuing) after the date of this Agreement, relating to the merger, consolidation, reorganization or any similar transaction with respect to the Business as currently conducted in Company or any material respectof its Subsidiaries;
(v) each Company Contract (other than (A) the Company’s standard Confidentiality and Assignment of Inventions Agreement, a form of which has been made available to Parent, and (B) non-exclusive licenses to third-party software) relating to the acquisition, transfer, development or sharing of any technology, Intellectual Property or Intellectual Property Right (including any joint development agreement, collaboration agreement or similar agreement entered into by the Company or any of its Subsidiaries);
(vi) each Company Contract (other than (A) the Company’s standard Confidentiality and Assignment of Inventions Agreement, a form of which has been made available to Parent, and (B) non-exclusive licenses to third-party software) relating to the license of any Contract for patent, copyright, trade secret or other Intellectual Property or Intellectual Property Right: (x) to the sale of Products or services, in each case, containing “most-favored nation” pricing terms Company or any exclusive dealing arrangement of its Subsidiaries; or (y) from the Company or any “requirements” Contractof its Subsidiaries;
(vii) each Company Contract relating to the acquisition, sale, spin-off or outsourcing of any Shared ContractSubsidiary or business unit or operation of the Company or any of its Subsidiaries;
(viii) each Company Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(ix) each Company Contract imposing any restriction or requirement on the Company or any of its Subsidiaries: (A) to compete with any Material Customer other Person in any geographic area or Material Supplier during any period of time; (excluding ordinary course task orders B) to acquire any product or service estimates containing terms other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person; or (C) to develop or distribute any product technology;
(x) each Company Contract granting exclusive rights to license, market, sell or deliver any products or services of the Company or any of its Subsidiaries or otherwise contemplating an exclusive relationship between the Company and conditions materially consistent any other Person;
(xi) each Company Contract creating or involving any agency relationship, distribution or reseller arrangement or franchise relationship;
(xii) each Company Contract regarding the acquisition, issuance or transfer of any securities of the Company or any of its Subsidiaries and each Company Contract affecting or dealing with any securities of the Company or any of its Subsidiaries, including any restricted share agreements or escrow agreements;
(xiii) each Company Contract relating to Indebtedness other than trade Indebtedness of the Company or any Subsidiary that is not material in amount;
(xiv) each Company Contract relating to the purchase or sale of any asset (other than the Company’s standard terms and conditions), and any other Contract which involves the payment securities) by or to, or the performance of any services by or for, or the delivery of goods by or to, or capital expenditures by, any Company Related Party;
(xv) any Company Contract pursuant to which the Company or any of its Subsidiaries made payments of cash or other consideration in excess of $750,000 50,000 during the twelve months ended December 31, 2009 or that involves or contemplates the payment or delivery of cash or other consideration by the Company or any of its Subsidiaries in an amount or having a value reasonably expected to be in excess of $50,000 in the aggregate over during the shorter of: (A) the term of such Contract or (B) the 2019 calendar yeartwelve month period ending December 31, 2010;
(Axvi) any Company Contract relating to ownership of or investments in any business or enterprise and (B) partnership, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar Contracta Grant; and
(xxvii) any other Company Contract involving the absence of which would be reasonably expected to have a Governmental Entity.
Company Material Adverse Effect. (b) Each Assumed Contract Contracts in the respective categories described in clauses “(i)” through “(xvii)” above and each Contract disclosed all Contracts identified, or required to be disclosed on Section 3.11 identified, in Part 2.11(a) of the Disclosure Schedule is a legal, valid and binding obligation of the Company, and, are referred to the Knowledge of the Company, each other party to such Contract, and is enforceable against the Company, and, to the Knowledge of the Company, each such other party in accordance with its terms subject, in each case, to the effect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and subject, this Agreement as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law“Company Material Contracts.”), and neither the Company nor, to the Knowledge of the Company, any other party to such Contract is in material default or material breach of such Contract, and, to the Knowledge of the Company, there does not exist any event, condition or omission that would constitute such a material default or material breach (whether by lapse of time or notice or both) under any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1, 2018, the Company has not received any written notice of termination or nonrenewal with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge of the Company, no other party to any such Contract intends to provide any such notice.
Appears in 1 contract
Sources: Merger Agreement (Insmed Inc)
Contracts. (a) Except as set forth on Section 3.11 As of the Disclosure Schedule (which (i) includes date of this Agreement, none of the Company or any amendment, supplement or modification Company Subsidiary is a party to any Contract listed therein and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the terms Securities Act (a “Filed Company Contract”) that has not been so filed.
(b) Section 4.14(b) of other Contracts listed therein)the Company Disclosure Letter sets forth, as of the date hereofof this Agreement, neither a true and complete list, and the Company nor any of its Subsidiaries is a party has made available to or bound by any of the following Contracts that are Related to the BusinessParent true and complete copies, of:
(i) any each Contract with any staffing company, temporary employee agency, professional employer organization to which the Company or other similar company or agency;
(ii) any collective bargaining agreement or similar Contract with an employee representative or labor group representing any Business Employees;
(iii) any Contract relating to Indebtedness or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any of the Transferred Assets or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangements;
(iv) any Company Subsidiaries is a party that (A) Contract (restricts in any material respect the ability of the Company or group any Company Subsidiaries to compete in any line of related Contracts) relating to business or regarding Intellectual Property or geographic area (B) IT Asset Contract (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee of less than $50,000 in the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregate);
(v) any Contract which prohibits the Company or any of its the Company Subsidiaries from competing or otherwise freely engaging in any business with any Person, or (C) containing “most favored nation,” “exclusivity” or similar provisions, and, in each case, that is material to the Business Company and the Company Subsidiaries, taken as currently conducted anywhere a whole;
(ii) each Contract pursuant to which any Indebtedness (other than any Indebtedness described in clause (iv) of the definition of Indebtedness that does not exceed $1,000,000 individually or in the world in any material respect or that otherwise restricts any activities aggregate) of the Company or any of the Company Subsidiaries is outstanding or may be incurred by its terms, other than any such agreement solely between or among the Company and the wholly owned Company Subsidiaries with respect or between or among wholly owned Company Subsidiaries;
(iii) each material partnership, joint venture or similar Contract to which the Company or any of the Company Subsidiaries is a party relating to the Business as currently conducted formation, creation, operation, management or control of any partnership or joint venture or to the ownership of any equity interest in any entity or business enterprise other than the Company Subsidiaries or securities held for investment by the Company or the Company Subsidiaries in the ordinary course of business;
(iv) each material respectContract between the Company or any Company Subsidiary, on the one hand, and, on the other hand, any (A) present executive, officer or director of either the Company or any of the Company Subsidiaries or (B) to the Knowledge of the Company, any affiliate of any such executive, officer or director (other than the Company or any of the Company Subsidiaries), in each case, other than those contracts filed as exhibits (including exhibits incorporated by reference) to any Filed Company SEC Documents and other than any Company Benefit Plan;
(v) each Collective Bargaining Agreement (excluding any labor-related agreements, arrangements or understandings applicable to multiple employers on the national ▇▇▇/▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇);
(vi) each Contract relating to the disposition or acquisition by the Company or any of the Company Subsidiaries, (x) with material obligations remaining to be performed, (y) with material liabilities continuing after the date of this Agreement or (z) involving amounts in excess of $5,000,000, of any material business or any material amount of assets (whether by merger, sale of stock, sale of assets or otherwise) other than any such Contract entered into in the ordinary course of business;
(vii) each Contract to which the Company or any Company Subsidiary is a party that involved aggregate payments by the Company or such Company Subsidiary during the five months ended November 30, 2021 which, on an annualized basis for the sale fiscal year ending June 30, 2022, would equal at least $2,500,000, and which is not terminable by the Company or a Company Subsidiary on less than sixty (60) days’ written notice without material penalty;
(viii) each Contract to which the Company or any Company Subsidiary is a party that involved aggregate revenue to the Company or such Company Subsidiary during the five months ended November 30, 2021 which, on an annualized basis for the fiscal year ending June 30, 2022, would equal at least $3,000,000;
(ix) each Contract that is a settlement or similar agreement that imposes material obligations on the Company or any of Products the Company Subsidiaries after the date of this Agreement;
(x) each material Contract with (a) any of the ten largest customers of the Company and the Company Subsidiaries (determined on the basis of aggregate revenues recognized by the Company and the Company Subsidiaries during the five months ended November 30, 2021) or services(b) any of the ten largest suppliers of the Company and the Company Subsidiaries (determined on the basis of aggregate purchases made by the Company and the Company Subsidiaries during the five months ended November 30, 2021);
(xi) each Contract under which the Company or any Company Subsidiary (A) licenses or sublicenses or otherwise receives rights to any material Intellectual Property Rights from any third party (other than licenses or sublicenses of generally commercially available off-the-shelf software programs or services (including software-as-a-service) used solely for internal use for a replacement cost of no more than $100,000 per year, licenses or sublicenses of generally commercially available off-the-shelf software programs or services (including software as a service) bundled, resold or otherwise distributed by the Company or any Company Subsidiary on a non-exclusive basis in the ordinary course of business for which royalties or other fees of no more than $1,000,000 are paid to a third party by the Company or any Company Subsidiary per year, permitted use right to confidential information in a nondisclosure agreement entered into in the ordinary course of business, licenses for open source software, non-exclusive licenses granted by employees to the Company or any Company Subsidiary in the ordinary course of business on a form of agreement with the Intellectual Property-related terms that are the same in all material respects as such terms in the Company’s form agreement, and Incidental Licenses) (B) licenses or sublicenses or otherwise grants rights to any material Intellectual Property Rights to a third party (other than non-exclusive licenses or sublicenses to customers and resellers (including white label solutions) in the ordinary course of business consistent with past practice, permitted use right to confidential information (other than source code) in a nondisclosure agreement entered into in the ordinary course of business, non-exclusive licenses granted to contractors by the Company or any Company Subsidiary in the ordinary course of business solely for the provision of services for the Company, and Incidental Licenses), and (C) other Contracts affecting the Company’s or any Company Subsidiary’s ability to own, enforce, or license, or providing for the development, acquisition, or divestiture of, any material Intellectual Property Rights; and
(xii) each Government Contract that is in performance or otherwise has not been the subject of a formal settlement or termination and which involved aggregate revenue to the Company or such Company Subsidiary during the five months ended November 30, 2021 which, on an annualized basis for the fiscal year ending June 30, 2022, would equal at least $1,000,000. Each Contract described in this Section 4.14(b) and each Filed Company Contract, in each case, containing is referred to herein as a “most-favored nation” pricing terms or any exclusive dealing arrangement or any “requirements” Material Contract;.”
(viic) any Shared Contract;
(viii) any Contract with any Material Customer Except for matters which, individually or Material Supplier (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditions), and any other Contract which involves the payment by or to, performance of services by or for, or the delivery of goods by or to, or capital expenditures by, the Company in excess of $750,000 in the aggregate over the shorter of: aggregate, would not have a Company Material Adverse Effect, (Ai) the term of such each Material Contract or (B) the 2019 calendar year;
(A) any Contract relating to ownership of or investments is in any business or enterprise full force and (B) partnershipeffect and a valid, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar Contract; and
(x) any Contract involving a Governmental Entity.
(b) Each Assumed Contract binding and each Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule is a legal, valid and binding legally enforceable obligation of the CompanyCompany or one of the Company Subsidiaries, as the case may be, and, to the Knowledge of the Company, each other party to such Contract, and is enforceable against the Company, and, to the Knowledge of the Companyother parties thereto, each such other party in accordance with its terms subjectexcept, in each case, to the effect of any applicable Laws relating to as enforcement may be limited by bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, reorganization or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law)equity, and neither (ii) none of the Company nor, to the Knowledge or any of the Company, any other party to such Contract Company Subsidiaries is in material default (with or material breach of such Contract, and, to the Knowledge of the Company, there does not exist any event, condition without notice or omission that would constitute such a material default or material breach (whether by lapse of time or notice time, or both) in breach or default under any Assumed such Material Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1, 2018, the Company has not received any written notice of termination or nonrenewal with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge of the Company, no other party to any such Material Contract intends is (with or without notice or lapse of time, or both) in breach or default thereunder, except, in the case of clause (i), with respect to provide any such noticeMaterial Contract which expires by its terms (as in effect as of the date hereof). Neither the Company nor any of the Company Subsidiaries has received any written notice regarding any actual or alleged material violation or breach of or material default under, or intention to cancel or materially modify to the detriment of the Company or the Company Subsidiaries, any Material Contract.
Appears in 1 contract
Contracts. (a) Except as set Set forth on in Section 3.11 3.13(a) of the Company Disclosure Schedule (which (i) includes any amendment, supplement or modification to any Contract listed therein and (ii) shall not include Contracts that are invoices, statements is a list of work or purchase orders entered into pursuant to the terms of other Contracts listed therein), as each of the date hereoffollowing Contracts to which the Company, neither the Company nor any of its Subsidiaries or any Joint Venture is a party to or bound by any of the following Contracts that are Related to the Businessparty:
(i) any 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 any staffing company, temporary employee agency, professional employer organization or other similar company or agencythe SEC on the date hereof;
(ii) any collective bargaining agreement Contract that purports to limit, curtail or similar Contract with an employee representative restrict the ability of the Company, any of its existing or labor group representing future Subsidiaries or Affiliates or any Business EmployeesJoint Venture to compete in any geographic area or line of business or restrict the Persons to whom the Company, any of its existing or future Subsidiaries or Affiliates or any Joint Venture may sell products or deliver services;
(iii) any Contract relating to Indebtedness partnership or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any of the Transferred Assets or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangementsjoint venture agreement;
(iv) any Contract for the acquisition, sale or lease of material properties or assets (by merger, purchase or sale of stock or assets or otherwise) (A) Contract (or group of related Contracts) relating to or regarding Intellectual Property entered into since August 1, 2003 or (B) IT Asset Contract (excluding commercially availablecurrently in effect, off-the-shelf Software with a replacement cost which requires ongoing performance or an annual license fee of less than $50,000 in the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregate)imposes ongoing obligations;
(v) Contract with any Contract which prohibits (A) Governmental Authority or (B) director or officer of the Company or Company, any of its Subsidiaries from competing or otherwise freely engaging in the Business as currently conducted anywhere in the world in any material respect or that otherwise restricts any activities of the Company Affiliates or any of its Subsidiaries with respect to the Business as currently conducted in any material respectJoint Venture;
(vi) loan or credit agreement, mortgage, indenture, note or other Contract or instrument evidencing indebtedness for borrowed money by the Company, 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 the sale Company, any of Products or services, in each case, containing “most-favored nation” pricing terms its Subsidiaries or any exclusive dealing arrangement or any “requirements” ContractJoint Venture;
(vii) any Shared Contractfinancial derivatives master agreement or confirmation, or futures account opening agreements and/or brokerage statements, evidencing financial hedging or similar trading activities;
(viii) voting agreement or registration rights agreement;
(ix) mortgage, pledge, security agreement, deed of trust or other Contract granting a Lien on any material property or assets of the Company, any of its Subsidiaries or any Joint Venture;
(x) customer, client or supply Contract with any Material Customer or Material Supplier (excluding other than a purchase order received in the ordinary course task orders or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditions), and any other Contract which of business) that involves the payment by or to, performance of services by or for, or the delivery of goods by or to, or capital expenditures by, the Company consideration in fiscal year 2006 in excess of $750,000 2,000,000 or that is reasonably likely to involve consideration in fiscal year 2006 or fiscal year 2007 in excess of $2,000,000;
(xi) Contract (other than customer, client or supply Contracts or purchase orders received in the aggregate over ordinary course of business) that involve consideration (whether or not measured in cash) of greater than $2,000,000;
(xii) collective bargaining agreement;
(xiii) agreement pursuant to which it has agreed to a “standstill” or similar obligation;
(xiv) to the shorter of: extent material to the business or financial condition of the Company and its Subsidiaries, taken as a whole, (A) the term of such 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 or (BG) the 2019 calendar year;
(A) any Contract relating to ownership granting a right of first refusal or investments in any business or enterprise and (B) partnership, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar Contractfirst negotiation; and
(xxv) 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), each a “Material Contract”). The Company has heretofore made available to Parent correct and complete copies of each Material Contract involving a Governmental Entityor summaries in the case of customer Material Contracts in existence as of the date hereof, together with any and all amendments and supplements thereto and material “side letters” and similar documentation relating thereto.
(b) Each Assumed Contract and each Contract disclosed or required to be disclosed on Except as separately identified in Section 3.11 3.13(b) of the Company Disclosure Schedule is a legalSchedule, valid and binding obligation (i) each of the CompanyMaterial Contracts is valid, and, to the Knowledge of the Company, each other party to such Contract, binding and in full force and effect and is enforceable against the Company, and, to the Knowledge of the Company, each such other party in accordance with its terms subjectby the Company, in each caseits Subsidiaries and the Joint Venture party thereto, subject to the effect Bankruptcy and Equity Exception; (ii) no approval, consent or waiver of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally Person is needed in order that any Material Contract continue in full force and subject, as to enforceability, to effect following the effect consummation of general principles of equity the transactions contemplated hereby; (regardless of whether such enforceability is considered in a proceeding in equity or at law), and neither the Company nor, to the Knowledge iii) none of the Company, any other party to such Contract of its Subsidiaries or any Joint Venture is in material default or material breach of such under any Material Contract, andnor does any condition exist that, to the Knowledge of the Company, there does not exist any event, condition with notice or omission that would constitute such a material default or material breach (whether by lapse of time or notice or both) under any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1, 2018, would constitute a default thereunder by the Company has and its Subsidiaries and the Joint Ventures party thereto, except for such defaults as, individually or in the aggregate, have not received any written notice of termination or nonrenewal with respect had and would not reasonably be expected to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, have a Company Material Adverse Effect; (iv) to the Knowledge of the Company, no other party to any such Material Contract intends to provide is in default thereunder, nor does any condition exist that with notice or lapse of time or both would constitute a default by any such noticeother party thereunder, except for such defaults as, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect; and (v) none of the Company, any of its Subsidiaries or any Joint Venture has received any notice of termination or cancellation under any Material Contract, received any notice of breach or default in any material respect under any Material Contract which breach has not been cured, or granted to any third party any rights, adverse or otherwise, that would constitute a breach of any Material Contract.
Appears in 1 contract
Contracts. (a) Except as set forth on Section 3.11 Schedule 3.16 of the Parent Disclosure Schedule lists the following agreements (written or oral) to which (i) includes the Parent or any amendment, supplement or modification to any Contract listed therein and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into pursuant to the terms of other Contracts listed therein), Parent Subsidiaries is a party as of the date hereof, neither of this Agreement which do not exceed $25,000 in the Company nor any of its Subsidiaries is a party to or bound by any of the following Contracts that are Related to the Businessaggregate:
(i) any Contract with any staffing company, temporary employee agency, professional employer organization agreement (or other similar company group of related agreements) for the lease of personal property from or agencyto third parties;
(ii) any collective bargaining agreement (or similar Contract with an employee representative group of related agreements) for the purchase or labor group representing any Business Employeessale of products or for the furnishing or receipt of services;
(iii) any Contract relating to Indebtedness agreement establishing a partnership or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any of the Transferred Assets or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangementsjoint venture;
(iv) any (A) Contract agreement (or group of related Contractsagreements) relating to under which it has created, incurred, assumed or regarding Intellectual Property guaranteed (or may create, incur, assume or guarantee) indebtedness (Bincluding capitalized lease obligations) IT Asset Contract or under which it has imposed (excluding commercially availableor may impose) a Security Interest on any of its assets, off-the-shelf Software with a replacement cost tangible or an annual license fee of less than $50,000 in the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregate)intangible;
(v) any Contract which prohibits the Company or any of its Subsidiaries from competing or otherwise freely engaging in the Business as currently conducted anywhere in the world agreement that purports to limit in any material respect or that otherwise restricts any activities the right of the Company Parent or any of its the Parent Subsidiaries with respect to the Business as currently conducted engage in any material respectline of business, or to compete with any person or operate in any geographical location;
(vi) any Contract for the sale of Products employment or services, in each case, containing “most-favored nation” pricing terms or any exclusive dealing arrangement or any “requirements” Contractconsulting agreement;
(vii) any Shared Contractagreement involving any current or former officer, director or stockholder of the Parent or any Affiliate thereof;
(viii) any Contract with any agreement under which the consequences of a default or termination would reasonably be expected to have a Parent Material Customer or Material Supplier (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditions), and any other Contract which involves the payment by or to, performance of services by or for, or the delivery of goods by or to, or capital expenditures by, the Company in excess of $750,000 in the aggregate over the shorter of: (A) the term of such Contract or (B) the 2019 calendar yearAdverse Effect;
(Aix) any Contract relating agreement which contains any provisions requiring the Parent or any of the Parent Subsidiaries to ownership indemnify any other party thereto (excluding indemnities contained in agreements for the purchase, sale or license of or investments products entered into in any business or enterprise and (B) partnership, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar Contract; andthe Ordinary Course of Business);
(x) any Contract other agreement (or group of related agreements) either involving more than $25,000 or not entered into in the Ordinary Course of Business; and
(xi) any agreement, other than as contemplated by this Agreement and the Transfer, relating to the sales of securities of the Parent or any of the Parent Subsidiaries to which the Parent or such Parent Subsidiary is a Governmental Entityparty.
(b) Each Assumed Contract The Parent has delivered or made available to the Company a complete and accurate copy of each Contract disclosed or required to be disclosed on Section 3.11 agreement listed in Schedule 3.16 of the Parent Disclosure Schedule Schedule. With respect to each agreement (i) the agreement is a legal, valid valid, binding and binding obligation of the Companyenforceable and in full force and effect, and, to the Knowledge of the Company, each other party to except as such Contract, and is enforceable against the Company, and, to the Knowledge of the Company, each such other party in accordance with its terms subject, in each case, to the effect of any enforceability may be limited under applicable Laws relating to bankruptcy, reorganizationinsolvency and similar laws, insolvency, moratorium, fraudulent conveyance rules or preferential transfers, or similar Laws relating to or regulations affecting creditors’ rights and remedies generally and subject, as to enforceability, to the effect of general principles of equity whether applied in a court of law or a court of equity; (regardless ii) the agreement will not, as a result of whether the execution and delivery by the Parent of this Agreement or any of the other Transaction Documents or the consummation by the Parent of the transactions contemplated hereby or thereby, cease to be a legal, valid, binding and enforceable obligation of the Parent, except as such enforceability is considered may be limited under applicable bankruptcy, insolvency and similar laws, rules or regulations affecting creditors’ rights and remedies generally and to general principles of equity, whether applied in a proceeding court of law or a court of equity, or to be in equity or at law), full force and effect in accordance with the terms thereof as in effect immediately prior to the Closing; and (iii) neither the Company Parent nor any of the Parent Subsidiaries nor, to the Knowledge knowledge of the CompanyParent, any other party, is in breach or violation of, or default under, any such agreement, and no event has occurred, is pending or, to the knowledge of the Parent, 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 the Parent Subsidiaries or, to the knowledge of the Parent, any other party to under such Contract is in material default contract. The Parent has delivered or material breach of such Contract, and, made available to the Knowledge Company a complete and accurate copy each agreement of the Company, there does not exist any event, condition Parent or omission that would constitute such Parent Subsidiary described in or filed as an exhibit to a material default or material breach (whether by lapse of time or notice or both) under any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1, 2018, the Company has not received any written notice of termination or nonrenewal with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge of the Company, no other party to any such Contract intends to provide any such noticeParent Report.
Appears in 1 contract
Contracts. (a) Except as set forth on Section 3.11 Part 3.9(a) of the Company Disclosure Schedule (which (i) includes any amendmentidentifies each Company Contract that constitutes a Material Contract. For purposes of this Agreement, supplement or modification to any Contract listed therein and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into pursuant to the terms of other Contracts listed therein), as of the date hereof, neither the Company nor any of its Subsidiaries is a party to or bound by any each of the following Company Contracts that are Related (along with each Inbound License and each Outbound License) shall be deemed to the Businessconstitute a “Material Contract”:
(i) any Company Contract with constituting a Company Employee Agreement pursuant to which any staffing companyof the Acquired Corporations is or may become obligated to (1) make any severance, temporary employee agencychange in control or tax gross-up payment to any Company Associate or any spouse, professional employer organization heir or Representative of any Company Associate; (2) make any bonus or deferred compensation payment; or (3) grant or accelerate the vesting of, or otherwise modify, any Company Equity Award other similar company or agencythan accelerated vesting provided in Company Equity Plans;
(ii) any collective bargaining agreement or similar Company Contract with an employee representative sole-source or labor group representing any Business Employeessingle-source suppliers of material tangible products or services;
(iii) any Company Contract relating that provides for: (A) reimbursement of any Company Associate for, or advancement to Indebtedness any Company Associate of, legal fees or to mortgaging, pledging other expenses associated with any Legal Proceeding or otherwise placing a Lien the defense thereof; or (other than a Permitted LienB) on indemnification of any of the Transferred Assets or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangementsCompany Associate;
(iv) any Company Contract (A) Contract (materially limiting the freedom or group right of related Contracts) relating any Acquired Corporation to engage in any line of business, to make use of any Company IP or regarding Intellectual Property to compete with any other Person in any location or line of business, or (B) IT Asset Contract (excluding commercially availablecontaining exclusivity obligations or restrictions or otherwise materially limiting the freedom or right of any Acquired Corporation to sell, off-the-shelf Software with a replacement cost distribute or an annual license fee of less than $50,000 in the aggregate manufacture any products or service or any technology or other assets to or for which the Company has made less than $50,000 in customized improvements in the aggregate)any other Person;
(v) any Company Contract which prohibits the Company or any of its Subsidiaries from competing or otherwise freely engaging in the Business as currently conducted anywhere in the world in any material respect or that otherwise restricts any activities of the Company or any of its Subsidiaries with respect relating to the Business as currently conducted in any material respectlease or sublease of Leased Real Property;
(vi) any Company Contract for that requires by its terms the sale payment or delivery of Products cash or servicesother consideration by the Acquired Corporations in an amount known or having an expected value in excess of $500,000 in the fiscal year ending December 31, 2011 or in each case, containing “most-favored nation” pricing terms or any exclusive dealing arrangement or any “requirements” Contractfiscal year thereafter;
(vii) any Shared ContractCompany Contract relating to indebtedness for borrowed money (whether incurred, assumed, guaranteed or secured by any asset) of the Company or an Acquired Corporation outside the ordinary course of business;
(viii) any Company Contract or arrangement with any Material Customer Person constituting a joint venture, partnership, collaboration or Material Supplier limited liability corporation;
(excluding ordinary course task orders ix) any Company Contract that requires or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditions), and any other Contract which involves the payment by or to, performance of services by or forpermits an Acquired Corporation, or the delivery of goods by or any successor, to, or capital expenditures byacquirer of an Acquired Corporation, the Company in excess to make any payment to another person as a result of $750,000 in the aggregate over the shorter of: a change of control of an Acquired Corporation (Aa “Change of Control Payment”) the term or gives another Person a right to receive or elect to receive a Change of such Contract or (B) the 2019 calendar year;
(A) any Contract relating to ownership of or investments in any business or enterprise and (B) partnership, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar ContractControl Payment; and
(x) any other Company Contract involving a Governmental Entitythat 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 Securities Act or that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act.
(b) Each Assumed As of the date of this Agreement, the Company has either delivered or otherwise made available to Parent or Parent’s Representatives an accurate and complete copy of each Material Contract or has publicly made available an accurate and complete copy of such Material Contract in the Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) database of the SEC. Neither the Acquired Corporations nor, to the knowledge of the Company any other Person, is in material breach of or material default under any Material Contract and each Contract disclosed or required neither the Acquired Corporations, nor to be disclosed on Section 3.11 the knowledge of the Disclosure Schedule Company any other Person, has taken or failed to take any action which, with or without notice, lapse of time, or both, would constitute a material default under the provisions of such Material Contract. Each Material Contract is a legalvalid agreement, valid binding, in full force and binding obligation effect and, to the knowledge of the Company, andenforceable by the applicable Acquired Corporation 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. 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. The Acquired Corporations have not waived any rights under any Material Contract, the waiver of which would have, either individually or in the aggregate, a Material Adverse Effect.
(c) With respect to each Government Contract to which a U.S. federal Governmental Body is a party or that is a Material Contract, to the Knowledge knowledge of the Company, each other party (i) all representations and certifications executed, acknowledged or set forth in or pertaining to such ContractGovernment Control were complete and correct in all material respects as of their effective date, and is enforceable against the Company, and, to the Knowledge of the Company, each such other party in accordance with its terms subject, in each case, to the effect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and subjectAcquired Corporation, as to enforceabilityapplicable, to the effect of general principles of equity has complied in all material respects with all such representations and certifications; (regardless of whether such enforceability is considered in a proceeding in equity or at law), and ii) neither the Company norUnited States government nor any prime contractor, to the Knowledge of the Companysubcontractor or other Person has notified any Acquired Corporation that an Acquired Corporation has materially breached or materially violated any material certification, any other party representation, clause, provision or requirement, pertaining to such Contract is in material default or material breach of such Government Contract, and, to the Knowledge of the Company, there does not exist any event, condition or omission that would constitute such a material default or material breach (whether by lapse of time or notice or both) under any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1, 2018, the Company has not received any written notice of termination or nonrenewal with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge of the Company, no other party to any such Contract intends to provide any such notice.
Appears in 1 contract
Contracts. (a) Except as set forth on Section 3.11 in Part 3.09(a) of the Disclosure Schedule (which (i) includes any amendment, supplement or modification to any Contract listed therein and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into pursuant to the terms of other Contracts listed therein)Letter, as of the date hereofof this Agreement, neither the Company nor any of its Subsidiaries is a party to or bound any Contract (other than this Agreement) 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 (a “Filed Company Contract”) that has not been so filed.
(b) Except for (i) this Agreement and (ii) any Contracts publicly filed by the Company with the SEC, Part 3.09(b) of the following Contracts that are Related to Disclosure Letter sets forth a true and complete list of, as of the Businessdate of this Agreement:
(i) any each Contract with any staffing company, temporary employee agency, professional employer organization or other similar company or agency;
(ii) any collective bargaining agreement or similar Contract with an employee representative or labor group representing any Business Employees;
(iii) any Contract relating to Indebtedness or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any of the Transferred Assets or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangements;
(iv) any (A) Contract (or group of related Contracts) relating to or regarding Intellectual Property or (B) IT Asset Contract (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee of less than $50,000 in the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregate);
(v) any Contract which prohibits that contains covenants binding upon the Company or any of its Subsidiaries from competing or otherwise freely engaging in that materially restrict the Business as currently conducted anywhere in the world in any material respect or that otherwise restricts any activities ability of the Company or any of its Subsidiaries to compete in any business or with any person or in any geographic area (except for any such Contract that may be canceled without any penalty or other liability to the Company or any of its Subsidiaries upon notice of ninety (90) days or fewer);
(ii) each Contract to which the Company or any of its Subsidiaries is a party that constitutes a collective bargaining agreement or similar labor agreement with any labor organization, works council, trade union, employee association, or other employee representatives or employee representative body representing, purporting to represent, or to the Knowledge of the Company, seeking to represent any employee of the Company or its Subsidiaries (a “Collective Bargaining Agreement”);
(iii) other than with respect to any Contract solely between the Business Company and its wholly owned Subsidiaries or among the Company’s wholly owned Subsidiaries, each Contract that is a joint venture, partnership, limited liability or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture, in each case that is material to the business of the Company and its Subsidiaries, taken as currently conducted in any material respecta whole;
(viiv) each Contract that is an indenture, mortgage, credit agreement, loan agreement, security agreement, guarantee, bond or similar Contract pursuant to which there is any Contract for outstanding Indebtedness (excluding clause (d) of the sale definition thereof) of Products the Company or servicesany of its Subsidiaries, whether as borrower or lender, in each casecase in excess of $100,000, containing other than (a) accounts receivables and payables in the Ordinary Course of Business and (b) any such Contract between or among any of the Company and any of its Subsidiaries;
(v) each Contract, the value of which exceeds $100,000, (A) that obligates the Company or any of its Subsidiaries to conduct business on an exclusive basis with any third party, or (B) that includes a “most-favored nation” pricing or other similar clause;
(vi) each Contract that by its terms calls for aggregate payments by the Company and its Subsidiaries under such Contract of more than $100,000 per fiscal year over the remaining term of such Contract (other than this Agreement, Contracts between or among any exclusive dealing arrangement of the Company and any of its Subsidiaries, Contracts that are subject of another subsection of this Section 3.09(b) or any “requirements” ContractCompany Leases);
(vii) any Shared Contracteach Government Contract that (A) has not reached the end of its term or period of performance or (B) that has not yet been subject to final payment or closeout;
(viii) each Contract to which the Company or any Contract of its Subsidiaries is a party with any Material a Major Customer or Material a Major Supplier in each case other than quotes, purchase orders, statements of work, sales orders, supplements, invoices or similar agreements or Contracts that are listed elsewhere in Part 3.09(b) of the Disclosure Letter;
(excluding ordinary course task orders ix) each Contract between the Company or service estimates containing terms and conditions materially consistent with any of its Subsidiaries, on the Company’s standard terms and conditions)one hand, and any executive officer or director of the Company or any of its Subsidiaries, on the other hand, other than any contract covered by clause (iii) above or any Company Benefit Plan;
(x) each Contract with respect to any acquisition and divestiture pursuant to which involves the Company or any of its Subsidiaries has continuing indemnification, “earn-out” or other contingent payment obligations, in each case, that would reasonably be expected to result in future payments by or to, performance of services by or for, or the delivery of goods by or to, or capital expenditures by, the Company in excess of $750,000 100,000;
(xi) other than any Company Benefit Plan listed on Part 3.12(a)(ii) of the Disclosure Letter or at-will offer letters on the Company’s standard form containing no severance provisions or consulting Contracts which may be cancelled on less than ninety (90) days’ notice without penalty to the Company, each employment or independent contractor Contract (in each case, under which the aggregate over Company has continuing obligations as of the shorter of: date hereof) with any current or former executive officer, consultant, independent contractor, or employee of the Company or its Subsidiaries or member of the Company Board providing for an annual base compensation in excess of $100,000;
(xii) each Contract or plan that has not been listed on Part 3.12(f) of the Disclosure Letter, including any stock option plan, stock appreciation right 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 consummation of the Transactions 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 (including the Merger);
(xiii) each Contract, the value of which exceeds $100,000, providing for indemnification or any guaranty (in each case, under which the Company has continuing obligations as of the date hereof and that is material to the Company and its Subsidiaries, taken as a whole), other than (A) any guaranty by the term Company of any of its Subsidiary’s obligations, (B) any Contract entered into in the Ordinary Course of Business or (C) any Contract otherwise listed in the Disclosure Letter, in each case of (A) through (C), with the exception of any Contract providing for indemnification or guaranty that is not capped (for the avoidance of doubt, such Contract with uncapped indemnification or guaranty obligations shall be deemed to be required to be listed in Part 3.09(b) of the Disclosure Letter pursuant to this clause (xiii));
(xiv) each Contract, the value of which exceeds $100,000, between the Company or any of its Subsidiaries, on the one hand, and any resellers or distributors of the Company or any of its Subsidiaries, on the other hand, that is a reseller, distribution or other similar agreement or arrangement;
(xv) each Contract that involves the resolution of a legal Proceeding (A) that has been entered into by the Company or any of its Subsidiaries since January 1, 2021, or (B) that includes a material payment obligation of the 2019 calendar yearCompany or any of its Subsidiaries that has not yet been performed by the Company or its Subsidiaries, in each case of (A) and (B), other than (x) releases immaterial in nature or amount entered into with former employees or independent contractors of the Company in the Ordinary Course of Business that did not resolve any actual or threatened Proceeding or (y) settlement agreements for cash only (which has been paid) and does not exceed $100,000 as to such settlement;
(Axvi) any Contract relating to ownership of or investments in any business or enterprise and (B) partnership, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar Contracteach Company Lease; and
(xxvii) any each Intellectual Property Contract. Each Contract involving a Governmental Entity.
(b) Each Assumed Contract and each Contract disclosed or required to be disclosed on Section 3.11 listed in Part 3.09(b) of the Disclosure Schedule Letter, and each Filed Company Contract is referred to herein as a legal, “Material Contract.”
(c) Each Material Contract is valid and binding obligation on the Company and each of the Company, its Subsidiaries that are a party thereto and, to the Knowledge of the Company, each other party to such Contractthereto, and is in full force and effect and enforceable in accordance with its respective terms against the CompanyCompany and its Subsidiaries, and, and to the Knowledge of the Company, each such other party thereto, subject to the Bankruptcy and Equity Exception, except (i) to the extent that any Material Contract expires in accordance with its terms subjectand (ii) as would not, individually or in each casethe aggregate, be material to the effect of any applicable Laws relating to bankruptcyCompany and its Subsidiaries. Except as would not, reorganizationindividually or in the aggregate, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, be material to the effect of general principles of equity (regardless of whether such enforceability is considered in Company and its Subsidiaries, taken as a proceeding in equity or at law)whole, and neither the Company nornor any of its Subsidiaries, or to the Knowledge of the Company, any other party, is in violation or breach of or in default under any Material Contract to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties, rights or assets is bound. No third party to such any Material Contract is in material default or material breach of such Contract, andhas, to the Knowledge of the Company, there does not exist alleged that the Company or any eventSubsidiary is in violation or breach of, condition or omission that would constitute in default under, any such a material default or material breach (whether by lapse of time or notice or both) under any Assumed Material Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1, 2018, has notified the Company has not received any written notice of termination or nonrenewal with respect to any Assumed Contract or any Contract disclosed Subsidiary of an intention to modify any material terms of, or required not to be disclosed on Section 3.11 renew, any such Material Contract.
(d) Neither the Company nor any of the Disclosure Schedule andits Subsidiaries or, to the Knowledge of the Company, the Company’s Principals (as that term is presently defined in Section 52.209-5, Title 48, Code of Federal Regulations) have in the prior three (3) years been suspended, debarred, or proposed for debarment from bidding on material contracts or subcontracts with any Governmental Authority, and to the Knowledge of the Company, no such suspension or debarment has been initiated or threatened. Neither the Company nor any of its Subsidiaries or, to the Knowledge of the Company, the Company’s Principals, is presently indicted or has been convicted or, had a civil judgment rendered against them, or have had a finding of fault or liability rendered against them in any administrative or civil proceeding for (i) commission of fraud or a criminal offense in connection with the obtaining, attempting to obtain, or performing a Government Contract, or (ii) commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, tax evasion, violating U.S. federal criminal tax laws, or receiving stolen property. To the Knowledge of the Company, the consummation of the Merger and the other party to transactions contemplated by this Agreement will not result in any such suspension or debarment.
(e) With respect to the Company’s Government Contracts, except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, as of the date of this Agreement:
(i) the Company has not received written notice that any Government Contracts are the currently the subject of bid, award, or size protest proceedings;
(ii) the Company does not need any “Facility Security Clearance” (as that term is defined by Part 117, Title 32, Code of Federal Regulations) to perform its Government Contracts; and
(iii) the Company, to the extent applicable, is currently in compliance with all Government Contract intends terms and conditions relating to provide any such noticecounterfeit electronic parts and the sources of electronic parts, and is currently in compliance with all higher-level contract quality (as defined in Section 46.202-4, Title 48, Code of Federal Regulations) provisions of its Government Contracts.
Appears in 1 contract
Sources: Merger Agreement (Emagin Corp)
Contracts. (a) Except as set forth on Section 3.11 of the Disclosure Schedule (which (i) includes any amendment, supplement or modification to any Contract listed therein and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into pursuant to the terms of other Contracts listed therein), as As of the date hereof, neither the Company nor any of its Subsidiaries is a party to or bound by by, and neither they nor are any of their assets or properties subject to, any contracts, agreements or arrangements required to be disclosed on Form 10-K, Form 10-Q or Form 8-K under the following Contracts that Exchange Act, which are Related not filed, and publicly available without redaction, as an exhibit to one or more of the Company Reports filed with the SEC prior to the Business:
(i) any Contract with any staffing company, temporary employee agency, professional employer organization or other similar company or agency;date hereof.
(ii) any collective bargaining agreement or similar Contract with an employee representative or labor group representing any Business Employees;
(iii) any Contract relating to Indebtedness or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any As of the Transferred Assets or letter of credit arrangementsdate hereof, surety or performance bonds, guarantee, support or similar arrangements;
(iv) any (A) Contract (or group of related Contracts) relating to or regarding Intellectual Property or (B) IT Asset Contract (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee of less than $50,000 in the aggregate or for which neither the Company has made less than $50,000 in customized improvements in the aggregate);
(v) any Contract which prohibits the Company or nor any of its Subsidiaries from competing is a party to, or otherwise freely engaging bound by, any written or oral: (A) agreement or arrangement obligating or reasonably expected to obligate the Company or its Subsidiaries to pay or receive in excess of $5,000,000 over the remaining term of such agreement or arrangement (excluding purchase and sale orders entered into by the Company or its Subsidiaries in the Business as currently conducted anywhere in the world ordinary course of business consistent with past practice); (B) agreement containing provisions which materially restrict in any material respect or that otherwise restricts any activities manner (1) the right of the Company or any of its Subsidiaries to compete with any other Person, or in any geographic area or during any period of time, (2) the right of the Company or any of its Subsidiaries to sell to or purchase from any other person or entity, or (3) the right of any other party to compete with the Company or any of its Subsidiaries; (C) agreement that contains any “standstill” provision or similar restriction on the Company’s ability to negotiate an acquisition of another entity; (D) distributorship, non-employee commission or marketing agent, representative or franchise agreement providing for the marketing and/or sale of the products or services of the Company or any of its Subsidiaries; (E) agreement pursuant to which the Company or any of its Subsidiaries acquired the ownership or control of any material interest (with respect to the Business as currently conducted value) in any material respect;
(vi) any Contract for the sale of Products or services, in each case, containing “most-favored nation” pricing terms or any exclusive dealing arrangement or any “requirements” Contract;
(vii) any Shared Contract;
(viii) any Contract with any Material Customer or Material Supplier (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditions), and any other Contract which involves the payment by or to, performance of services by or for, or the delivery of goods by or to, or capital expenditures by, the Company in excess of $750,000 in the aggregate over the shorter of: (A) the term of such Contract or (B) the 2019 calendar year;
(A) any Contract relating to ownership of or investments in any business or enterprise and (B) a partnership, joint venture, co-ownercorporation, limited liability company collaboration or strategic alliance company, joint venture or other entity or similar Contractarrangement other than as otherwise disclosed herein; and
(xF) contract or agreement containing change of control provisions relating to the Company or any of its Subsidiaries; or (G) any Contract involving a Governmental Entityother material agreement not entered into in the ordinary course of business consistent with past practice.
(biii) Each Assumed Contract and each Contract disclosed or required All agreements referred to be disclosed on in this Section 3.11 of the Disclosure Schedule is a legal4.01(m) are, valid pursuant to their terms, in full force and binding obligation of upon the CompanyCompany or its Subsidiaries, as the case may be, and, to the Knowledge knowledge of the Company, each the other party parties thereto, except to such Contractthe extent failures that would not reasonably be expected to have, and is enforceable against individually or in the Companyaggregate, Company Material Adverse Effect. Neither the Company nor any of its Subsidiaries and, to the Knowledge Company’s knowledge, none of the other parties thereto are in default of provision under any such agreement except for defaults that would not reasonably expected to have, individually or in the aggregate, a Company Material Adverse Effect Neither the Company nor any of its Subsidiaries has been notified in writing that Company is in default under any such agreement and to the Company’s knowledge event has occurred which, with the lapse of time, the giving of notice, or both, would become a default of a provision under any such agreement by the Company or Subsidiaries, or, to the knowledge of the Company, each such the other contracting party except defaults that would not reasonably be expected to have, individually or in accordance with its terms subjectthe aggregate, in each case, to the effect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and neither Company Material Adverse Effect. Neither the Company nor, to the Knowledge nor any of the Company, its Subsidiaries released or waived any other party to such Contract is in material default or material breach of such Contract, and, to the Knowledge of the Company, there does not exist any event, condition or omission that would constitute such a material default or material breach (whether by lapse of time or notice or both) right under any Assumed Contract or any Contract disclosed or required such agreement referred to be disclosed on in this Section 3.11 4.01 other than in the ordinary course of the Disclosure Schedule. Since January 1, 2018, the Company has not received any written notice of termination or nonrenewal business consistent with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge of the Company, no other party to any such Contract intends to provide any such noticepast practice.
Appears in 1 contract
Sources: Merger Agreement (Talbots Inc)
Contracts. (a) Except as set forth on Section 3.11 of The Contracts constitute all contracts or agreements, whether oral or written, relating to the Disclosure Schedule Business or included in the Assets or Assumed Liabilities (which (i) includes but excluding any amendment, supplement agreement or modification contract solely relating to any Contract listed therein and (ii) shall not include Contracts Excluded Assets or to liabilities that are invoices, statements of work or purchase orders entered into pursuant to the terms of other Contracts listed thereinnot Assumed Liabilities), as of including the date hereof, neither the Company nor any of its Subsidiaries is a party to or bound by any of the following Contracts that are Related to the Businessfollowing:
(i) any Contract with any staffing companyagreement for the purchase of materials, temporary employee agencysoftware, professional employer organization supplies, goods, services, equipment or other similar company or agencyassets relating to the Business;
(ii) any collective bargaining sales, distribution or other similar agreement providing for the sale of materials, supplies, goods, services, equipment or similar Contract with an employee representative or labor group representing any Business Employeesother assets relating to the Business;
(iii) any Contract partnership, joint venture or other similar agreement or arrangement relating to Indebtedness the Business or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any of the Transferred Assets or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangementsAssets;
(iv) any (A) Contract (or group of related Contracts) agreement relating to the acquisition or regarding Intellectual Property disposition of the Business or any of the Assets (B) IT Asset Contract (excluding commercially availablewhether by merger, off-the-shelf Software with a replacement cost sale of stock, sale of assets or an annual license fee of less than $50,000 in the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregateotherwise);
(v) any Contract which prohibits agreement relating to indebtedness for borrowed money or the Company deferred purchase price of property relating to the Business or any of its Subsidiaries from competing the Assets (in either case, whether incurred, assumed, guaranteed or otherwise freely engaging in the Business as currently conducted anywhere in the world in secured by any material respect or that otherwise restricts any activities of the Company or any of its Subsidiaries with respect to the Business as currently conducted in any material respectAsset);
(vi) any Contract for option, license (including software license), franchise or similar agreement relating to the sale of Products Business or services, in each case, containing “most-favored nation” pricing terms or any exclusive dealing arrangement or any “requirements” Contractthe Assets;
(vii) any Shared Contractagency, dealer, sales representative, marketing or other similar agreement relating to the Business or the Assets;
(viii) any Contract with any Material Customer agreement that limits the freedom of Predictive or Material Supplier (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditions), and any other Contract which involves the payment by or to, performance of services by or for, or the delivery of goods by or to, or capital expenditures by, the Company in excess of $750,000 GI to compete in the aggregate over Business in any area after the shorter of: (A) the term of such Contract or (B) the 2019 calendar yearClosing Date;
(Aix) any Contract agreement containing any right of first refusal or similar right relating to ownership of the Business or investments in any business or enterprise and (B) partnership, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar Contract; andthe Assets;
(x) any Contract involving agreement pursuant to which Predictive or GI has hired or retained a Governmental Entityconsultant relating to the Business or the Assets;
(xi) any agreement pursuant to which Predictive or GI is subject to confidentiality or non-disclosure obligations relating to the Business or the Assets;
(xii) any agreement under which Predictive or GI agrees to indemnify any party relating to the Business or the Assets; or
(xiii) any other agreement, commitment, arrangement or plan directly relating to the Business or the Assets.
(b) Each Assumed Contract and each Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule is a legal, valid and binding obligation agreement of Predictive or GI, and is in full force and effect, and neither Predictive, GI nor, to the CompanyKnowledge of Predictive or GI, any other party thereto is in default or breach in any material respect under the material terms of any Contract and, to the Knowledge of the CompanyPredictive and GI, each other party to such Contractno event or circumstance has occurred that, and is enforceable against the Company, and, to the Knowledge of the Company, each such other party in accordance with its terms subject, in each case, to the effect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance notice or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and neither the Company nor, to the Knowledge of the Company, any other party to such Contract is in material default or material breach of such Contract, and, to the Knowledge of the Company, there does not exist any event, condition or omission that would constitute such a material default or material breach (whether by lapse of time or notice or both, would constitute any material event of default thereunder.
(c) under any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 5.12(c) of the Disclosure Schedule. Since January 1, 2018, the Company has not received any written notice Seller Letter sets forth a summary of termination all of Predictive's or nonrenewal with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, GI's outstanding proposals and contract renewal activity relating to the Knowledge Business.
(d) True and complete copies of the Company, no other party each Contract have been delivered or made available to any such Contract intends to provide any such noticeBuyer.
Appears in 1 contract
Contracts. (a) Except as Subject to the limitations set forth on in this Section 3.11 of the Disclosure 3.11, Schedule (which (i3.11(a) includes any amendment, supplement or modification to any Contract listed therein and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into pursuant to the terms of other Contracts listed therein), as of the date hereof, neither the Company nor any of its Subsidiaries is sets forth a party to or bound by any list of the following types of Contracts that are Related to the Business:
(i) any Contract with any staffing company, temporary employee agency, professional employer organization or other similar company or agency;
(ii) any collective bargaining agreement or similar Contract with an employee representative or labor group representing any Business Employees;
(iii) any Contract relating to Indebtedness or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any of the Transferred Assets or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangements;
(iv) any (A) Contract (or group of related Contracts) relating to or regarding Intellectual Property or (B) IT Asset Contract (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee of less than $50,000 in the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregate);
(v) any Contract which prohibits either the Company or any of its Subsidiaries is a party:
(i) employment agreement, non-competition agreement, non-solicitation agreement, or assignment of inventions agreement with respect to any employee or independent contractor of the Company, Contract providing for severance, retention, change in control or other similar payments or any Employee Release;
(ii) management Contracts, Contracts with an independent contractor or consultant (or similar arrangement), Contracts whereby the Company buys products, or Contracts whereby the Company buys services, in each case where the aggregate amount of payments owed by the Company exceeds $25,000 during the period running from competing January 1 to June 30, 2010, except for such Contracts as are cancelable without penalty on notice of thirty (30) days or otherwise freely engaging in the Business as currently conducted anywhere in the world in fewer;
(iii) collective bargaining agreement or other Contract with any material respect labor organization, union or that otherwise restricts any activities association;
(iv) Contracts containing covenants of the Company or any of its Subsidiaries not to compete in any line of business or with any Person in any geographical area or, to the actual Knowledge of Seller (without any duty of inquiry), not to solicit or hire any Person with respect to employment or covenants of any other Person not to compete with the Business as currently conducted Company or any of its Subsidiaries in any material respectline of business or in any geographical area or, to the actual Knowledge of Seller (without any duty of inquiry), not to solicit or hire any Person with respect to employment;
(v) Contract with the Seller or any Affiliate thereof or any current or former officer, director, stockholder or Affiliate of the Company or any of its Subsidiaries or with any "associate" or any member of the "immediate family" (as such terms are respectively defined in Rules 12b-2 and 16a-1 of the Securities Exchange Act of 1934, as amended) of any such director or officer ("Related Persons");
(vi) any Contract for the sale of Products or services, in each case, containing “most-favored nation” pricing terms or any exclusive dealing arrangement or any “requirements” ContractCompany Leases not disclosed pursuant to Section 3.09;
(vii) lease, sublease or similar Contract with any Shared Contractperson (other than a Subsidiary) under which (A) the Company or a Subsidiary is lessee of, or holds or uses, any machinery, equipment, vehicle or other tangible personal property owned by any person or (B) the Company or a Subsidiary is a lessor or sublessor of, or makes available for use by any person, any tangible personal property owned or leased by the Company or a Subsidiary;
(viii) Contracts relating to the incurrence, assumption or guarantee of any Contract with Indebtedness or imposing a Lien on any Material Customer of the assets of the Company or Material Supplier (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with any Subsidiary of the Company’s standard terms ;
(ix) The Company's top fifty (50) contracts by revenue for the supply of products or services to Persons located primarily in the U.S. as set forth in the Financial Statements and conditions)the Company's top eleven (11) contracts by revenue for the supply of products or services to Persons located primarily outside the U.S. as set forth in the Financial Statements;
(x) Contract under which the Company or any Subsidiary has made any advance, and any other Contract which involves the payment by loan, extension of credit or to, performance of services by or for, or the delivery of goods by or capital contribution to, or capital expenditures byother investment in, the Company any Person in excess of $750,000 in 25,000 during the aggregate over the shorter of: (A) the term of such Contract or (B) the 2019 calendar yearperiod running from January 1 to June 30, 2010;
(Axi) Contract for the sale (whether by merger, sale of stock, sale of assets or otherwise) of any security or material asset of the Company or any Subsidiary or the grant of any preferential rights to purchase any such asset or requiring the consent of any party to the transfer thereof, all since January 1, 2005;
(xii) [intentionally omitted];
(xiii) Contract with any Governmental Entity;
(xiv) any Contract relating to ownership of or investments in any business or enterprise and (B) partnershipagency, joint venturedealer, co-ownersales representative, limited liability company collaboration or strategic alliance marketing or other similar Contract; and;
(xxv) currency exchange, interest rate exchange, commodity exchange or similar hedging Contract, in each case where the aggregate value exceeds $25,000;
(xvi) Contract for any joint venture, partnership or other similar arrangement;
(xvii) power of attorney;
(xviii) license, sublicense or option with respect to any Intellectual Property Rights (including any such license under which the Company or a Subsidiary is licensee or licensor of any such Intellectual Property Rights) except for licenses of generally available commercial software or data generally available to the background screening industry licensed on standard terms and requiring the payment of license fees of $25,000 or less during the period running from January 1 to June 30, 2010;
(xix) Contract involving for the purchase of materials, supplies, goods, services, equipment or other assets, in each case which contains an obligation on the date hereof of the Company or a Governmental EntitySubsidiary to make a payment in excess of $25,000 between the date hereof and December 31, 2010 and is not terminable by the Company or a Subsidiary by notice of not more than thirty (30) days for a cost of less than $10,000; or
(xx) Confidentiality or standstill agreement entered into during the three (3) years prior to the date hereof.
(b) Each Assumed Contract All Contracts set forth in Schedule 3.11(a) (the "Company Contracts") are valid, binding and each Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule is a legal, valid in full force and binding obligation of the Company, effect and, to assuming due authorization execution and delivery by the Knowledge of other parties thereto, are enforceable by the Company, each other party to such Contract, and is enforceable against the Company, and, to the Knowledge of the Company, each such other party Company or its applicable Subsidiary in accordance with its their terms subject, in each case, to the effect of any except as may be limited by (a) applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance reorganization or preferential transfers, or similar other Laws of general application relating to or affecting creditors’ the enforcement of creditors rights generally generally, and subject, as to enforceability, to (b) the effect of general principles rules of equity (regardless Law governing the availability of whether such enforceability is considered in a proceeding in equity specific performance and other equitable remedies. The Company or at law)its applicable Subsidiary has performed all material obligations required to be performed by it through the date of this Agreement under the Company Contracts, and neither the Company nor, to nor its applicable Subsidiary is (with or without the Knowledge of the Company, any other party to such Contract is in material default or material breach of such Contract, and, to the Knowledge of the Company, there does not exist any event, condition or omission that would constitute such a material default or material breach (whether by lapse of time or notice the giving of notice, or both) under any Assumed Contract in material breach or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Scheduledefault thereunder. Since January 1, 2018, the Company has not received any written notice of termination or nonrenewal with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to To the Knowledge of the Company, no other party to any such Company Contract intends is (with or without the lapse of time or the giving of notice, or both) in material breach or default thereunder. Except as set forth on Schedule 3.11(b), none of the Company or any of its Subsidiaries has received any written notice of the intention of any party to provide terminate any such noticeCompany Contract. Complete and correct copies of all Company Contracts, together with all amendments thereto, have been made available to Purchaser.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Intersections Inc)
Contracts. (a) Except as set forth on Section 3.11 4.13(a) of the Company Disclosure Schedule (which (i) includes any amendment, supplement or modification to any Contract listed therein and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into pursuant to the terms of other Contracts listed therein)sets forth, as of the date hereof, neither a true, correct and complete list of each Contract (other than any Company Real Property Lease or Benefit Plan) that is in effect and to which the Company nor or any of its Subsidiaries Company Subsidiary is a party to or bound by which binds their respective properties or assets, and that falls within any of the following Contracts that are Related to the Businesscategories:
(i) any Contract with any staffing company, temporary employee agency, professional employer organization or other similar company or agency“material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K promulgated by the SEC);
(ii) any collective bargaining agreement Contract for the acquisition, disposition or similar Contract with an employee representative or labor group representing any Business Employeesdevelopment of real property (including options to purchase land);
(iii) any settlement, conciliation or similar Contract relating (A) (1) with any Governmental Entity that has continuing obligations as of the date of this Agreement or (2) that was entered into in the 12 months prior to Indebtedness the date of this Agreement, (B) that requires the Company or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any of the Transferred Assets Company Subsidiaries to pay any monetary consideration of more than two hundred fifty thousand dollars ($250,000) after the date of this Agreement or letter (C) that would otherwise limit in any material respect the operation of credit arrangements, surety the Company or performance bonds, guarantee, support or similar arrangementsany Company Subsidiary as currently operated;
(iv) any (A) joint venture, partnership, or strategic alliance Contract (or group of related Contracts) relating to or regarding Intellectual Property or (B) IT Asset Contract (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee of less than $50,000 Third Party member in the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregate)or any Company Subsidiary owns an Equity Interest;
(v) other than Contracts listed in Section 4.13(a)(iv) of the Company Disclosure Schedule, any Contract (A) that relates to any completed acquisition, divestiture, merger or similar transaction and (1) contains representations, covenants, indemnities or other obligations that remain in effect (excluding any transactions solely among the Company and any wholly owned Company Subsidiary) and that are material to the business of the Company and the Company Subsidiaries, or (2) pursuant to which prohibits the Company or any Company Subsidiary has continuing “earn-out” or other similar contingent payment obligations following the date hereof, (B) for any pending acquisition, directly or indirectly (by merger or otherwise) of its Subsidiaries from competing a portion of the assets (other than goods, products or otherwise freely engaging services in the Business as currently conducted anywhere in ordinary course of business) or Equity Interests of any Person or (C) that gives any Person the world in right after the date of this Agreement to acquire any material respect or that otherwise restricts any activities assets of the Company or any the Company Subsidiaries (excluding ordinary course purchases of its Subsidiaries with respect to the Business as currently conducted in any material respectCompany’s goods or products);
(vi) any Contract for that (A) contains any covenant limiting in any material respect the sale ability of Products the Company or servicesthe Company Subsidiaries to engage in any line of business or compete with any Person or in any geographic area, in each case, containing “most-favored nation” pricing terms (B) requires the Company or any exclusive dealing arrangement of the Company Subsidiaries to conduct any business on a “most favored nations” basis with any third party or (C) provides for “exclusivity” or any “requirements” Contractsimilar requirement in favor of any third party;
(vii) any Shared ContractContract relating to Indebtedness of the Company or any Company Subsidiary in an outstanding principal amount in excess of two hundred fifty thousand dollars ($250,000), other than (A) surety bonds issued in the ordinary course of business or (B) any such contract between the Company or any Company Subsidiary, on the one hand, and any other Company Subsidiary, on the other hand;
(viii) any Contract with (A) pursuant to which the Company or any Material Customer Company Subsidiary receives a license to use any material Intellectual Property (other than licenses for “off-the-shelf” or Material Supplier (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with the Company’s other Software widely available on generally standard terms and conditions), and any other Contract which involves the payment by or to, performance of services by or for, or the delivery of goods by or to, or capital expenditures by, the Company in excess of $750,000 in the aggregate over the shorter of: (A) the term of such Contract or (B) pursuant to which the 2019 calendar yearCompany or any Company Subsidiary grants to a third party a license to use any material Company Intellectual Property (other than non-exclusive licenses granted to customers and vendors in the ordinary course of business consistent with past practices);
(ix) each Contract for the lease of personal property involving payments in excess of two hundred fifty thousand dollars ($250,000) in any calendar year that are not terminable without penalty or other liability to the Company and the Company Subsidiaries (other than any ongoing obligation pursuant to such Contract that is not caused by any such termination) within 60 days;
(x) all employment, independent contractor, consulting, severance or similar agreements with service providers that are individuals under which the Company or any Company Subsidiary is or could become obligated to provide annual compensation or payments in excess of two hundred twenty five thousand dollars ($225,000) and which cannot be terminated by the Company or any Company Subsidiary without the payment or provision of severance compensation or benefits or advance notice;
(xi) (A) any Contract relating to ownership of or investments in any business or enterprise with a customer where the price is fixed for more than a one-year period and (B) partnershipany Contract with any Person which relates to more than one million dollars ($1,000,000) in annual payments to, joint ventureor payments by, co-ownerthe Company and/or the Company Subsidiaries for the year ended December 31, limited liability company collaboration 2021 or strategic alliance with respect to which the Company or a Company Subsidiary reasonably expects that it and/or one of its Subsidiaries will receive payments or make payments for the year ended December 31, 2022 of more than one million dollars ($1,000,000), in each case of any Contract under this subsection (B) other similar Contractthan any Contract or purchase order entered into in the ordinary course of business; and
(xxii) any Contract involving with a Governmental EntityRelated Party to the Company or any Company Subsidiary, other than Contracts related to any Person’s employment with the Company or any Company Subsidiary. Each Contract of the type described in this Section 4.13(a) is referred to herein as a “Company Material Contract.” True and complete copies of each Company Material Contract in effect as of the date hereof have been made available to Parent (including pursuant to agreed-upon procedures to protect competitively sensitive information) or publicly filed with the SEC.
(b) Each Assumed Except as would not have and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Company Material Contract and each Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule is a legal, valid valid, binding and binding enforceable obligation of the Company or the Company Subsidiary party thereto and is in full force and effect (except as may be limited by the Enforceability Exceptions) and (ii) none of the Company, and, to the Knowledge of the Company, each other party to such Contract, and is enforceable against the Company, and, to the Knowledge of the Company, each such other party in accordance with its terms subject, in each case, to the effect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and neither the Company norSubsidiary or, to the Knowledge of the Company, any other party to such Contract counterparty is in material breach or default or material breach of such Contract, and, to the Knowledge of the Company, there does not exist any event, condition or omission that would constitute such a material default or material breach (whether by lapse of time or notice or both) under any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1, 2018, the Company has not received any written notice of termination or nonrenewal with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge of the Company, no other party to any such Contract intends to provide any such noticeMaterial Contract.
Appears in 1 contract
Sources: Merger Agreement (Trecora Resources)
Contracts. (a) Except as set forth on Section 3.11 4.11 of the Disclosure Schedule (sets forth a complete and accurate list of the following agreements to which (i) includes the Company or any amendment, supplement Subsidiary is a party or modification to bound or by which any Contract listed therein and (ii) shall not include Contracts that of their properties or assets are invoices, statements of work or purchase orders entered into pursuant to the terms of other Contracts listed therein)subject, as of the date hereofof this Agreement (collectively the "Company Contracts"):
(i) any indenture, mortgage, loan, credit or similar contract under which the Company or any Subsidiary has borrowed any money or issued any note, bond, indenture or other evidence of indebtedness for borrowed money, sold and leased back assets or guaranteed indebtedness for others (excluding any Hedge or similar contracts for which neither the Company nor any of its Subsidiaries is a party to Subsidiary has or bound by will receive any of the following Contracts that are Related to the Business:
(i) benefit or have any Contract with any staffing company, temporary employee agency, professional employer organization or other similar company or agencyliability);
(ii) any collective bargaining agreement guarantee by the Company or similar Contract with an employee representative any Subsidiary of any obligation of another or labor group representing guaranty of any Business EmployeesHedge;
(iii) any Contract relating agreement respecting any partnership, joint venture, or, with respect to Indebtedness the Shares or to mortgagingany equity interests in any Subsidiary, pledging any option, put or otherwise placing a Lien (other than a Permitted Lien) on any call, or right of the Transferred Assets or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangementsfirst refusal;
(iv) except for joint operating agreements, any (Aagreement, exclusive of the commitments described in Section 4.12(a) Contract (or group of related Contracts) relating to or regarding Intellectual Property or (B) IT Asset Contract (excluding commercially availablethe Disclosure Schedule, off-the-shelf Software with a replacement cost or an annual license fee requiring expenditures after the date hereof in excess of less than $50,000 1,000,000 in the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregate)any 12 month period;
(v) any Contract Hedge contract to which prohibits the Company or any Subsidiary is a party;
(vi) any joint development agreement, exploration agreement, or acreage dedication agreement (excluding, in respect of its Subsidiaries from competing each of the foregoing, customary joint operating agreements), or otherwise freely engaging in any other contract that purports to materially limit the Business as currently conducted anywhere in the world in any material respect or that otherwise restricts any activities right of the Company or any of its Subsidiaries with respect to the Business as currently conducted engage or compete in any material respect;
(vi) line of business in which the Company or its Subsidiaries is engaged or to compete with any Contract for the sale of Products Person or services, operate in each case, containing “most-favored nation” pricing terms or any exclusive dealing arrangement or any “requirements” Contractlocation;
(vii) any Shared Contracta contract that creates a partnership or joint venture that is material to the business of the Company or its Subsidiaries taken as a whole;
(viii) any Contract a settlement or similar agreement with any Material Customer Governmental Entity or Material Supplier (excluding ordinary course task orders order or service estimates containing terms and conditions materially consistent with consent of a Governmental Entity to which the Company’s standard terms and conditions), Company or any of its Subsidiaries is subject involving future performance by the Company or any of its Subsidiaries which is material to the Company and any other Contract which involves the payment by or to, performance of services by or for, or the delivery of goods by or to, or capital expenditures by, the Company in excess of $750,000 in the aggregate over the shorter of: (A) the term of such Contract or (B) the 2019 calendar yearits Subsidiaries taken as a whole;
(Aix) except for joint operating agreements, any Contract relating contract for the provision of goods or services to ownership of third parties that is not terminable within twelve (12) months after Closing, involving more than $1,000,000 in goods or investments services in any business or enterprise and (B) partnership, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar Contract; and12 month period;
(x) any Contract involving contract with Seller or any Affiliate of Seller which will survive the Closing; and
(xi) any other contract (excluding any joint operating agreement or lease) that cannot be replaced on similar terms in the ordinary course of business of the Company the expiration or termination of which would reasonably be expected to have a Governmental EntityMaterial Adverse Effect on the Company or any of its Subsidiaries.
(b) Each Assumed Contract and each Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule is a legal, The Company Contracts are valid and binding obligation of the Companybinding, in full force and effect and, to the Knowledge of the CompanyIndicated Persons, each other party to such Contract, and is enforceable against the Company, and, to the Knowledge of the Company, each such other party parties thereto in accordance with its terms subjecttheir respective terms, in each case, to the effect of any applicable Laws relating to except as such enforceability may be limited by bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance moratorium or preferential transfers, other similar laws affecting or similar Laws relating to or affecting the enforcement of creditors’ ' rights generally and subject, as to enforceability, to the effect application of general principles of equity (regardless of whether such that enforceability is considered in a proceeding at law or in equity equity). The Company (or at lawa Subsidiary, as applicable) has performed all material obligations and is not in material breach or default under any Company Contract (other than those breaches or defaults that are subject to an available cure period under such Company Contract which, if not cured, would not, individually or in the aggregate, have a Material Adverse Effect). No event has occurred, which after notice or lapse of time, or both, would constitute a default by the Company (or a Subsidiary as applicable), and neither the Company nor, or to the Knowledge of the CompanyIndicated Persons, any other party to such Contract is in material default or material breach of such Contractparty, and, to the Knowledge of the Company, there does not exist any event, condition or omission that would constitute such reasonably be expected to have a material default or material breach (whether by lapse of time or notice or both) under any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1, 2018, the Company has not received any written notice of termination or nonrenewal with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge of the Company, no other party to any such Contract intends to provide any such noticeMaterial Adverse Effect.
Appears in 1 contract
Sources: Stock Purchase Agreement (Integrys Energy Group, Inc.)
Contracts. (a) Except as set forth on Section 3.11 List of Contracts. Part 2.12(a) of the Disclosure Schedule (which (i) includes any amendment, supplement or modification to any Contract listed therein and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into pursuant to the terms of other Contracts listed therein), as of the date hereof, neither the Company nor any of its Subsidiaries is a party to or bound by any of the following Contracts that are Related to the Businessaccurately identifies:
(i) (A) each Acquired Companies Contract relating to the employment of, or the performance of services by, any Acquired Companies Employee and providing for payments in any twelve (12) month period of more than $100,000 other than Acquired Companies Employee Plans and at-will offer letters that contain no severance or change of control provisions; (B) any Acquired Companies Contract with pursuant to which any staffing companyof the Acquired Companies is or will become obligated to make any severance, temporary employee agency, professional employer organization termination or similar payment to any Acquired Companies Employee; and (C) any Acquired Companies Contract pursuant to which any of the Acquired Companies is or will become obligated to make any bonus or similar payment (other similar company or agencythan payment in respect of salary) to any Acquired Companies Employee;
(ii) each Acquired Companies Contract which provides for indemnification of any collective bargaining agreement officer, director, employee or similar Contract with an employee representative or labor group representing any Business Employeesagent;
(iii) any each Acquired Companies Contract relating to Indebtedness the voting and any other rights or to mortgaging, pledging or otherwise placing obligations of a Lien (other than a Permitted Lien) on stockholder of any of the Transferred Assets or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangementsAcquired Companies;
(iv) any (A) each Acquired Companies Contract (or group of related Contracts) relating to any merger, consolidation, reorganization or regarding Intellectual Property or (B) IT Asset Contract (excluding commercially available, off-the-shelf Software any similar transaction with a replacement cost or an annual license fee respect to any of less than $50,000 in the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregate)Acquired Companies;
(v) any each Acquired Companies IP Contract which prohibits the Company or (other than: (A) agreements between any of the Acquired Companies and its Subsidiaries from competing or otherwise freely engaging employees in connection with their employment in the Business as currently conducted anywhere in current standard form made available to the world in Purchaser without any material respect deviation thereto; and (B) Contracts for Commercial Software or that otherwise restricts Open Source Code) relating to the acquisition, transfer, development or sharing of any activities Software or Intellectual Property Rights (including any joint development agreement, technical collaboration agreement or similar agreement entered into by any of the Company or any of its Subsidiaries with respect to the Business as currently conducted in any material respectAcquired Companies);
(vi) each Acquired Companies Contract (other than: (A) agreements between any Contract of the Acquired Companies and its employees in connection with their employment in the current standard form made available to the Purchaser without any material deviation thereto; and (B) Contracts for Commercial Software or Open Source Code) relating to the sale license of Products any Software or services, in each case, containing “most-favored nation” pricing terms or Intellectual Property Rights to any exclusive dealing arrangement or any “requirements” Contractof the Acquired Companies;
(vii) each Acquired Companies Contract relating to the acquisition, sale, spin-off or outsourcing of any Shared Contractbusiness unit or operation of any of the Acquired Companies;
(viii) each Acquired Companies Contract creating or relating to any partnership or joint venture or other similar arrangement for the pooling and sharing of revenues, profits, losses, costs or liabilities;
(ix) each Acquired Companies Contract imposing any restriction on any of the Acquired Companies: (A) to compete with any Material Customer other Person; (B) to acquire any product or Material Supplier other asset or any services from any other Person; (excluding ordinary course task orders C) to sell any product or service estimates containing terms and conditions materially consistent other asset to or perform any services for any other Person; or (D) to transact business with any other Person;
(x) each Acquired Companies Contract: (A) granting exclusive rights to license, market, sell, support or deliver any Acquired Companies Product; (B) otherwise contemplating an exclusive relationship between any of the Company’s standard terms and conditions), Acquired Companies and any other Person; or (C) involving the grant of “most favored nation” status to any Person or other preferential rights;
(xi) each Acquired Companies Contract relating to the Acquired Companies’ sales and marketing, advertising or promotional activities, including agreements creating or involving any agency relationship, sales representative, channel partner, co-marketing, distribution or reseller arrangement or franchise relationship that involve payments in any twelve (12) month period of more than $25,000;
(xii) each Acquired Companies Contract requiring future development or delivery of any Intellectual Property Rights or Software by any of the Acquired Companies;
(xiii) each Acquired Companies Contract related to enrollment in or participation in Federal Health Care Programs;
(xiv) each Acquired Companies Contract that is a customer Contract (A) for pharmacies for which involves the payment annual revenue is $100,000 or more for the twelve (12) month period ending June 30, 2016 or for which there are 75 or more covered locations under the Contract; (B) with a health plan; or (C) with a manufacturer;
(xv) each Acquired Companies Contract related to the provision of point of care or pharmacogenetic testing or clinical research;
(xvi) each Acquired Companies Contract with physicians, other sources of referrals, or recipients of referrals to or for items or services provided by any of the Acquired Companies;
(xvii) each Acquired Companies Contract regarding the acquisition, issuance or transfer of any securities and each Acquired Companies Contract affecting or dealing with any securities of any of the Acquired Companies including any restricted share agreements or escrow agreements;
(xviii) each Acquired Companies Contract involving any loan, guaranty, pledge, performance or completion bond or indemnity or surety arrangement;
(xix) any Acquired Companies Contract (A) imposing any confidentiality obligation on any of the Acquired Companies or on any other Person (other than (1) routine nondisclosure agreements entered into by any of the Acquired Companies in the ordinary course of business, (2) end user licenses in the current standard form disclosed to the Purchaser pursuant to Section 2.11(g) without any material deviation thereto and (3) immaterial Acquired Company Contracts with customers for Acquired Company Products in the standard form made available to the Purchaser without any material deviation thereto), (B) containing “standstill” or similar provisions or (C) providing any right of first negotiation, right of first refusal or similar right to any Person;
(xx) any Acquired Companies Contract (A) with a customer, which together with any other Acquired Companies Contract with the same customer produced aggregate annual revenue of $20,000 or more for either of the twelve (12) month periods ending September 30, 2015 or September 30, 2016, that may not be terminated by any of the Acquired Companies (without penalty) within twelve (12) months of the Closing Date or (B) with a vendor or service provider that may not be terminated by any of the Acquired Companies (without penalty) within twelve (12) months of the Closing Date;
(xxi) any Acquired Companies Contract under which any of the Transactions would give rise to or expand any rights in favor of, or any obligations on the part of, any of the Acquired Companies or any other Person;
(xxii) each Acquired Companies Contract relating to the purchase or sale of any asset by or to, or the performance of any services by or for, any Related Party;
(xxiii) each Acquired Companies Contract relating to any liquidation or dissolution of any of the delivery of goods by Acquired Companies; and
(xxiv) any Acquired Companies Contract that contemplates or to, or capital expenditures by, the Company in excess of $750,000 in the aggregate over the shorter ofinvolves: (A) the term payment or delivery of such Contract cash or other consideration by any of the Acquired Companies in an amount or having a value in excess of $50,000; or (B) the 2019 calendar year;
performance of services by any of the Acquired Companies having a value in excess of $100,000 in the aggregate. (A) any Contract relating to ownership of or investments Contracts in any business or enterprise the respective categories described in clauses “(i)” through “(xxiv)” above and (B) partnershipidentified, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar Contract; and
(x) any Contract involving a Governmental Entity.
(b) Each Assumed Contract and each Contract disclosed or required to be disclosed identified, on Section 3.11 Part 2.12(a) of the Disclosure Schedule is a legalSchedule, valid and binding obligation of the Companyall Contracts identified, and, to the Knowledge of the Company, each other party to such Contract, and is enforceable against the Company, and, to the Knowledge of the Company, each such other party in accordance with its terms subject, in each case, to the effect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and neither the Company nor, to the Knowledge of the Company, any other party to such Contract is in material default or material breach of such Contract, and, to the Knowledge of the Company, there does not exist any event, condition or omission that would constitute such a material default or material breach (whether by lapse of time or notice or both) under any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 identified, in Part 2.10(b) of the Disclosure Schedule. Since January 1, 2018and all Acquired Companies Business Associate Agreements, the Company has regardless of whether or not received any written notice of termination or nonrenewal with respect to any Assumed Contract or any Contract disclosed or required to be disclosed identified on Section 3.11 of the Disclosure Schedule andSchedule, are referred to the Knowledge of the Company, no other party to any such Contract intends to provide any such noticein this Agreement as “Material Contracts.”)
Appears in 1 contract
Sources: Stock Purchase Agreement
Contracts. (a) Section 3.10(a) of the Seller Disclosure Schedule sets forth an accurate and complete list as of the date hereof of each Contract to which any Acquired Company is a party, which:
(i) includes a term extending more than 12 months following the date hereof;
(ii) relates to the borrowing of money or guarantying any obligation for borrowed money or otherwise, including any Contract that is a (A) mortgage, indenture, note, installment obligation or other instrument relating to the borrowing of money, (B) letter of credit, bond or other indemnity (including letters of credit, bonds or other indemnities as to which an Acquired Company is the beneficiary, but excluding endorsements of instruments for collection) or (C) currency or interest rate swap, collar or hedge agreements;
(iii) pursuant to which an Acquired Company uses Intellectual Property owned by a third party or licenses use of Intellectual Property owned by an Acquired Company to a third party, except for any license implied by the sale of a product and perpetual, paid-up licenses for commonly available software programs under which an Acquired Company is the licensee
(iv) involves any labor union or other employee representative of a group of employees;
(v) creates a partnership or joint venture with any other Person;
(vi) contains covenants that in any way purport to restrict the business activity of the Acquired Companies or limit the freedom of the Acquired Companies to engage in any line of business or to compete with any Person;
(vii) pursuant to which an Acquired Company extends a written warranty, guaranty or other similar undertaking with respect to contractual performance, other than in the ordinary course of business;
(viii) the Seller or any of its Affiliates (other than an Acquired Company) is a party;
(ix) provides for payments to employees or any other Person as a result of the transactions contemplated by this Agreement;
(x) involves the performance of services or delivery of goods or materials by any Acquired Company that is reasonably expected to result in revenue after the date of this Agreement in excess of $100,000 in any 12 month period;
(xi) involves the performance of services for, or delivery of goods or materials to, the Acquired Companies that is reasonably expected to result in expenditures after the date of this Agreement in excess of $100,000 in any 12 month period;
(xii) involves the employment of any employee on an other than “at will basis” or is a written Contract of employment, and, in each case, provides for annual compensation in excess of $100,000;
(xiii) involves a Governmental Authority; or
(xiv) involves a distributor, dealer, sales representative or sales agent whose annual compensation exceeds $100,000. The Contracts described above in this Section 3.10(a) are referred to in this Agreement as the “Material Contracts”.
(b) Except as set forth on Section 3.11 3.10(b) of the Seller Disclosure Schedule Schedule, a true, correct and complete copy (which (ior written summary in the case of any oral Material Contracts) includes of each Material Contract has been made available to Purchaser. Except as otherwise indicated in Section 3.10 of the Seller Disclosure Schedule, each Material Contract is in executed written form. With respect to each Material Contract, neither any amendment, supplement or modification to any Contract listed therein and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into pursuant Acquired Company party to the terms of Material Contract nor, to the Seller’s Knowledge, any other Contracts listed therein), as of the date hereof, neither the Company nor any of its Subsidiaries is a party to the Material Contract, is in breach or bound by any of the following Contracts that are Related to the Business:
(i) any Contract with any staffing company, temporary employee agency, professional employer organization or other similar company or agency;
(ii) any collective bargaining agreement or similar Contract with an employee representative or labor group representing any Business Employees;
(iii) any Contract relating to Indebtedness or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any of the Transferred Assets or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangements;
(iv) any (A) Contract (or group of related Contracts) relating to or regarding Intellectual Property or (B) IT Asset Contract (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee of less than $50,000 in the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregate);
(v) any Contract which prohibits the Company or any of its Subsidiaries from competing or otherwise freely engaging in the Business as currently conducted anywhere in the world in default under any material respect or that otherwise restricts any activities provisions of the Company or any of its Subsidiaries with respect to the Business as currently conducted such Material Contract in any material respect;
(vi) any . To the Seller’s Knowledge, each Material Contract for the sale of Products or services, in each case, containing “most-favored nation” pricing terms or any exclusive dealing arrangement or any “requirements” Contract;
(vii) any Shared Contract;
(viii) any Contract with any Material Customer or Material Supplier (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditions), and any other Contract which involves the payment by or to, performance of services by or for, or the delivery of goods by or to, or capital expenditures by, the Company in excess of $750,000 in the aggregate over the shorter of: (A) the term of such Contract or (B) the 2019 calendar year;
(A) any Contract relating to ownership of or investments in any business or enterprise and (B) partnership, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar Contract; and
(x) any Contract involving a Governmental Entity.
(b) Each Assumed Contract and each Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule is a legal, valid and binding obligation of the Company, and, enforceable as to the Knowledge of the Company, each other applicable Acquired Company party to such Contract, and is enforceable against the Company, and, to the Knowledge of the Company, each such other party thereto in accordance with its terms subject, in each case, subject to the effect (i) Laws of any applicable Laws general application relating to bankruptcy, reorganizationinsolvency and the relief of debtors and (ii) rules of Law governing specific performance, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally injunctive relief and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and neither the Company nor, to the Knowledge of the Company, any other party to such Contract is in material default or material breach of such Contract, and, to the Knowledge of the Company, there does not exist any event, condition or omission that would constitute such a material default or material breach (whether by lapse of time or notice or both) under any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1, 2018, the Company has not received any written notice of termination or nonrenewal with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge of the Company, no other party to any such Contract intends to provide any such noticeequitable remedies.
Appears in 1 contract
Sources: Stock Purchase Agreement (Allied Motion Technologies Inc)
Contracts. (a) Except as set Schedule 4.9(a) sets forth on Section 3.11 of the Disclosure Schedule (which (i) includes any amendment, supplement or modification to any Contract listed therein and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into pursuant to the terms of other Contracts listed therein), a complete list as of the date hereof, neither of this Agreement of any written contract in respect of the Business to which the Company nor or any of its Subsidiaries Subsidiary is a party to or bound by which any of them is bound other than Employee Benefit Plans (collectively, the following Contracts that are Related to the Business:"Material Contracts"):
(i) that involves the expenditure by the Company or the Subsidiaries of more than $3,000,000 in any Contract with instance for the purchase of materials, supplies, equipment or services, excluding any staffing company, temporary employee agency, professional employer organization such contract that is terminable by the Company or other similar company or agencya Subsidiary without penalty on not more than 90 days notice;
(ii) any collective bargaining is an indenture, mortgage, loan agreement, capital lease, security agreement, or other agreement or similar Contract with an employee representative or labor group representing any Business Employeesfor the borrowing of money in excess of $50,000;
(iii) any Contract relating to Indebtedness or to mortgaging, pledging or otherwise placing a Lien that guarantees the obligations of another Person (other than a Permitted Lienthe Company or any Subsidiary) on involving the potential expenditure by the Company or the Subsidiaries after the date of this Agreement of more than $50,000, or under which any Person has guaranteed any liabilities or obligations of the Transferred Assets Company or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangementsany Subsidiary;
(iv) any (A) Contract (or group of related Contracts) relating to or regarding Intellectual Property or (B) IT Asset Contract (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee of less than $50,000 in the aggregate or for which that restricts the Company has made less than $50,000 or any Subsidiary after the date of this Agreement from engaging in customized improvements any line of business in any geographic area or competing with any Person that materially impairs or would reasonably be expected to materially impair the aggregate)operation of the Business;
(v) any Contract that is a license agreement (as licensor or licensee) with third parties under which prohibits the Company or any Subsidiary is obligated to pay or is expected to receive after the date of its Subsidiaries from competing or otherwise freely engaging this Agreement an amount in the Business as currently conducted anywhere in the world in excess of $50,000 during any material respect calendar year or that is otherwise restricts any activities of the Company or any of its Subsidiaries with respect material to the Business as currently conducted in any material respectBusiness;
(vi) any Contract for the sale of Products that is a partnership, limited liability company or services, in each case, containing “most-favored nation” pricing terms or any exclusive dealing arrangement or any “requirements” Contractjoint venture agreement;
(vii) under which the Company or any Shared ContractSubsidiary has obligations or contingent liabilities after the date of this Agreement relating to the acquisition or sale of any business enterprise;
(viii) any Contract with any Material Customer that is an exclusive distributor, dealer or Material Supplier (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditions), and any other Contract which involves the payment by or to, performance of services by or for, or the delivery of goods by or to, or capital expenditures by, the Company in excess of $750,000 in the aggregate over the shorter of: (A) the term of such Contract or (B) the 2019 calendar yearsimilar contract;
(Aix) contracts between the Company or a Subsidiary, on the one hand, and either of the Sellers or any Contract relating Affiliates of either of the Sellers (excluding the Company and the Subsidiaries), on the other, which provides for aggregate payments after the date hereof by or to ownership the Company or any Subsidiary of or investments in more than $250,000 during any business or enterprise and (B) partnership, joint venture, coone-owner, limited liability company collaboration or strategic alliance or other similar Contractyear period; and
(x) any Contract involving a Governmental Entitycontract that contains rights or obligations relating to both the Business and the Prime Energy Division.
(b) Each Assumed Except as set forth in Schedule 4.9(b), each Material Contract is in full force and each Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule effect, and is a legal, valid and binding obligation agreement of the CompanyCompany or a Subsidiary, and, to the Knowledge Sellers' knowledge, each of the Companyother parties thereto, each other party to such Contract, and is enforceable against the Company, and, to the Knowledge of the Company, each such other party Company or Subsidiary in accordance with its terms subjectterms, in each case, subject to the effect effects of any applicable Laws relating to bankruptcy, insolvency, fraudulent conveyance, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or moratorium and other similar Laws relating to or affecting creditors’ ' rights generally and subjectgenerally, as to enforceability, to the effect of general equitable principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing. Except as set forth on Schedule 4.9(b), and neither no condition exists or event has occurred that (whether with or without notice or lapse of time or both) would constitute a default by (x) the Company nor, or any Subsidiary under any Material Contract or (y) to the Knowledge of the CompanySellers' knowledge, any other party to such Contract is in material default or material breach of such any Material Contract, andin each case, except for defaults that would not, individually or in the aggregate, be reasonably likely to have a Material Adverse Effect. Complete copies of (i) each such Material Contract (including all modifications and amendments thereto and waivers thereunder) and (ii) all form contracts, agreements or instruments used in and material to the Knowledge of the Company, there does not exist any event, condition or omission that would constitute such a material default or material breach (whether by lapse of time or notice or both) under any Assumed Contract or any Contract disclosed or required Business have been made available to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1, 2018, the Company has not received any written notice of termination or nonrenewal with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge of the Company, no other party to any such Contract intends to provide any such noticeeach Investor.
Appears in 1 contract
Contracts. (a) Except as Section 3.14(a) of the Company Disclosure Schedule identifies each Company Contract, excluding any Company Plans set forth on in Section 3.11 3.20(h) of the Company Disclosure Schedule (which (i) includes any amendmentSchedule, supplement or modification to any Contract listed therein and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into pursuant to the terms of other Contracts listed therein), as of the date hereof, neither the Company nor any of its Subsidiaries is a party to or bound by any of the following Contracts that are Related to the Businessincluding:
(i) each Company Contract relating to the employment of, or the performance of services by, any Contract with Person, including any staffing companyemployee, temporary employee agencyconsultant or independent contractor, professional employer organization or other similar company or agencyin any case pursuant to which the Company has a continuing obligation;
(ii) each Company Contract relating to the acquisition, transfer, use, development, sharing or license of any collective bargaining agreement technology or similar Contract any Intellectual Property or Intellectual Property Rights (excluding: (A) currently-available, off the shelf software programs that are licensed by Company pursuant to “shrink wrap” licenses or other intellectual property generally available on commercially reasonable terms; (B) standard non-disclosure, confidentiality, material transfer and consulting agreements, and (C) Company Contracts with an employee representative or labor group representing any Business Employeesthird parties for the provision of clinical research services);
(iii) each Company Contract imposing any Contract relating restriction on the Company’s right or ability (A) to Indebtedness engage in any line of business or compete with any other Person, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to, or perform any services for, any other Person or to mortgagingtransact any business or deal in any other manner with any other Person, pledging or otherwise placing a Lien (other than a Permitted LienC) on develop or distribute any of the Transferred Assets or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangementsCompany product;
(iv) each Company Contract creating or involving any (A) Contract (agency relationship, distribution arrangement or group of related Contracts) relating to or regarding Intellectual Property or (B) IT Asset Contract (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee of less than $50,000 in the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregate)franchise relationship;
(v) any each Company Contract which prohibits the Company or any of its Subsidiaries from competing or otherwise freely engaging in the Business as currently conducted anywhere in the world in any material respect or that otherwise restricts any activities of the Company or any of its Subsidiaries with respect relating to the Business as currently conducted in acquisition, issuance or transfer of any material respectsecurities;
(vi) each Company Contract relating to the creation of any Contract for Encumbrance with respect to any asset of the sale of Products or services, in each case, containing “most-favored nation” pricing terms or any exclusive dealing arrangement or any “requirements” ContractCompany;
(vii) each Company Contract involving or incorporating any Shared Contractguaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangement;
(viii) each Company Contract creating or relating to any Contract with collaboration, joint development or joint venture or any Material Customer sharing of technology, revenues, profits, losses, costs or Material Supplier (excluding ordinary course task orders liabilities, including Company Contracts involving investments by the Company in, or service estimates containing terms and conditions materially consistent with loans by the Company’s standard terms and conditions)Company to, and any other Entity;
(ix) each Company Contract which involves relating to the payment purchase or sale of any product or other asset by or to, or the performance of any services by or for, or otherwise involving as a counterparty, any Related Party;
(x) each Company Contract relating to outstanding indebtedness for borrowed money;
(xi) each Company Contract related to the delivery acquisition or disposition of goods by or to, or capital expenditures by, material assets of the Company or other Person with a value in excess of $750,000 in the aggregate over the shorter of: 50,000;
(xii) any other Company Contract that contemplates or involves (A) the term payment or delivery of such Contract cash or other consideration in an amount or having a value in excess of $50,000 in the aggregate (except for employment agreements or offer letters entered into in the ordinary course of business), (B) the 2019 calendar yearpurchase or sale of any product, or performance of services by or to the Company having a value in excess of $[**] in the aggregate or (C) was entered into outside the ordinary course of business or was inconsistent with the Company’s past practices;
(Axiii) each Company Contract constituting a commitment of any Contract relating Person to ownership purchase products (including products in development) of or investments the Company with a value in any business or enterprise and (B) partnership, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar Contract; andexcess of $50,000;
(xxiv) any each Company Contract involving a Governmental Entity.
(b) Each Assumed Contract and each Contract disclosed or required pursuant to be disclosed on Section 3.11 of the Disclosure Schedule is a legal, valid and binding obligation of the Company, and, to the Knowledge of the Company, each other party to such Contract, and is enforceable against the Company, and, to the Knowledge of the Company, each such other party in accordance with its terms subject, in each case, to the effect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and neither which the Company nor, to the Knowledge of the Company, grants any other party to such Contract or another Person “most favored nation,” right of first or last offer, negotiation or refusal, preferred supplier, exclusivity or similar status;
(xv) each Company Contract that guarantees or warrants that any of the products or services of the Company are fit for any particular purpose or that guarantees results or commits to performance levels and other similar credit support obligations or agreements;
(xvi) each Company Contract providing for the payment of any royalty, commission, license fee or other form of compensation or consideration based on a percentage of specified revenues, subscription fees, earnings or other measure;
(xvii) any other Contract not otherwise set forth on Section 3.14(a) of the Company Disclosure Schedule whether or not made in the ordinary course of business, the termination or nonrenewal of which would reasonably be expected to have a Material Adverse Effect; and
(xviii) each Company Contract constituting or relating to a governmental Contract or governmental bid.
(b) The Company has delivered or Made Available to Parent accurate and complete copies of each written Company Contracts, including all amendments thereto, set forth on Section 3.14(a) of the Company Disclosure Schedule. There are no material oral Company Contracts, and no material written Contracts that have been modified orally or by course of performance or course of dealing. Each Company Contract set forth on Section 3.14(a) of the Company Disclosure Schedule is valid and in full force and effect, is enforceable by the Company in accordance with its terms, subject to bankruptcy laws and equitable principles. The consummation of the transactions contemplated hereby shall not (either alone or upon the occurrence of additional acts or events contemplated herein) result in any payment or payments becoming due from the Company, the Surviving Corporation or Parent to any Person under any Company Contract or give any Person the right to terminate or alter the provisions of any Company Contract set forth on Section 3.14(a) of the Company Disclosure Schedule.
(c) The Company has complied with all most favored pricing or similar contract terms, and no Person is entitled to any reimbursement, rebate, credit or adjustment to any pricing on account of any most favored customer terms.
(d) The Company has not in any material respect violated or breached, or committed any default or material breach of such under, any Company Contract, and, to the Knowledge of the Company, there does not exist no other Person has violated or breached, or committed any eventdefault under, any Company Contract.
(e) No event has occurred, and no circumstance or condition exists, that (with or omission that without notice or lapse of time) will, or would constitute such reasonably be expected to, (i) result in a material violation or breach of any of the provisions of any Company Contract, (ii) give any Person the right to declare a default or material breach (whether by lapse of time or notice or both) exercise any remedy under any Assumed Contract Company Contract, (iii) give any Person the right to accelerate the maturity or performance of any Contract disclosed Company Contract, or required (iv) give any Person the right to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1cancel, 2018, the terminate or modify any Company Contract.
(f) The Company has not received any written notice or other communication regarding any actual or possible violation or breach of, or default under, any Company Contract.
(g) The Company has not waived any of termination its material rights under any Company Contract.
(h) No Person is renegotiating, or nonrenewal with respect has a unilateral right pursuant to the terms of any Assumed Company Contract to renegotiate, any amount paid or payable to the Company under any Company Contract or any Contract disclosed other material term or required to be disclosed on Section 3.11 provision of any Company Contract.
(i) The Company Contracts collectively constitute all of the Contracts necessary to enable the Company to conduct its business in the manner in which its business is currently being conducted.
(j) Section 3.14(j) of the Company Disclosure Schedule and, provides an accurate and complete list of all Consents required pursuant to the Knowledge terms of any Company Contract as a result of or in connection with the Companyexecution, no delivery or performance of this Agreement and the other party transactions contemplated by this Agreement or the Related Agreements.
(k) The Company is not subject to any Contract for the sale of any products or services that constitutes a loss contract under GAAP or that would require that the Company incur costs that exceed the revenue the Company is entitled to receive under such Contract intends to provide any such noticeContract.
Appears in 1 contract
Sources: Merger Agreement (Medicines Co /De)
Contracts. (a) Except as set forth on Section 3.11 3.11(a) of the Company Disclosure Schedule (sets forth a complete and accurate list of any Contract to which the Company or any Company Subsidiary is a party or bound by as of the date of this Agreement (i) includes with any amendmentvendor for merchandise resold by the Company and the Company Subsidiaries both (A) pursuant to which the Company and the Company Subsidiaries collectively paid to such vendor, supplement or modification to any Contract listed therein during the fiscal year ended December 28, 2013, more than $75 million and (iiB) shall not include Contracts that are invoiceswhich contain any requirements, statements exclusivity or similar provisions expressly obligating the Company or any Company Subsidiary to purchase all of work or its requirements for certain merchandise exclusively from such vendor, but excluding, in any case, any purchase orders entered into pursuant to in the terms ordinary course of other Contracts listed therein)business, as of the date hereof, neither the Company nor any of its Subsidiaries is a party to or bound by any of the following Contracts that are Related to the Business:
(i) any Contract with any staffing company, temporary employee agency, professional employer organization or other similar company or agency;
(ii) any collective bargaining that is a services agreement, equipment lease, logistics agreement, information technology agreement or similar Contract agreement related to software (other than any architectural or construction-related Contract) in connection with an employee representative which or labor group representing pursuant to which the Company and Company Subsidiaries collectively paid, during the fiscal year ended December 28, 2013, more than $75 million to any Business Employees;
Person, (iii) any Contract relating related to Indebtedness indebtedness for borrowed money owed or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any of the Transferred Assets or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangements;
(iv) any (A) Contract (or group of related Contracts) relating to or regarding Intellectual Property or (B) IT Asset Contract (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee of less than $50,000 in the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregate);
(v) any Contract which prohibits guaranteed by the Company or any Company Subsidiary having an outstanding amount in excess of its Subsidiaries $75 million individually, other than any such indebtedness between or among any of the Company or any Company Subsidiary, (iv) that includes a non-competition clause of the Company or any Company Subsidiary not to compete in any line of business, industry or geographical area (in each case other than agreements with respect to real property) that materially restricts the Company and the Company Subsidiaries, taken as a whole, (v) that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K promulgated by the SEC (“Regulation S-K”)) with respect to the Company and the Company Subsidiaries, (vi) that is an employment or consulting agreement with any executive officer or other employee of the Company or any Company Subsidiary or member of the Company Board earning an annual salary from competing the Company or otherwise freely engaging any Company Subsidiary in excess of $300,000, (vii) that is a joint venture, partnership, limited liability company or other similar agreement or arrangement in which the Company or any Company Subsidiary is a member, partner or stockholder together with any Person that is not an Affiliate of the Company, and that is material to the Company and the Company Subsidiaries, taken as a whole, (viii) that involves the acquisition from another Person or disposition to another Person (other than, for the avoidance of doubt, for acquisitions or dispositions of inventory, merchandise, products, services, properties and other assets in the Business as currently conducted anywhere ordinary course of business) of any Equity Interests in any Person or any business or division of any Person or all or substantially all of the assets of any Person (or business or division thereof), in each case, pursuant to which the Company or any Company Subsidiary has pending or continuing material obligations remaining to be performed (other than contingent indemnification obligations for which none of the Company or any Company Subsidiaries are reasonably expected to become liable), (ix) with any Person (A) pursuant to which the Company and the Company Subsidiaries collectively received during the fiscal year ended December 28, 2013 more than $75 million and (B) pursuant to which the Company or any Company Subsidiary has provided “most favored nation,” “most favored customer” or other similar status to such Person but excluding, in any case, any purchase orders entered into in the world in ordinary course of business, (x) that is an agreement granting a right of first refusal or first negotiation with respect to the sale of (A) any material respect portion of the equity of the Company (B) 5% or that otherwise restricts any activities more of the consolidated net income of the Company or any of its the Company Subsidiaries, taken as a whole, or (C) consolidated assets of the Company or any of the Company Subsidiaries with respect to the Business as currently conducted in any material respect;
(vi) any Contract for the sale of Products or services, in each case, containing “most-favored nation” pricing terms or any exclusive dealing arrangement or any “requirements” Contract;
(vii) any Shared Contract;
(viii) any Contract with any Material Customer or Material Supplier (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditions), and any other Contract which involves the payment by or to, performance of services by or for, or the delivery of goods by or to, or capital expenditures by, the Company a fair market value in excess of $750,000 in the aggregate over the shorter of: 250,000,000, or (xi) (A) pursuant to which a third party has granted to the term Company or any Company Subsidiary a license under any Intellectual Property right that is material to the conduct of such Contract the Company’s business, other than any non-exclusive license with respect to any Intellectual Property right that is generally available on a commercial basis from third parties or (B) pursuant to which the 2019 calendar year;
Company or any of the Company Subsidiaries has granted to a third party an exclusive license under Intellectual Property rights owned by the Company or any of the Company Subsidiaries that are material to the Company and the Company Subsidiaries, taken as a whole, in each case of clauses (Ai) through (xi), other than those that are terminable by the Company and any Contract Company Subsidiary party thereto on no more than 90 days’ notice without material liability or material financial obligation to the Company and the Company Subsidiaries, taken as a whole (collectively, the “Company Material Contracts”). The Company has made available to Ultimate Parent or its respective Representatives prior to the date hereof a complete and accurate copy of each Company Material Contract, as amended or modified prior to the date hereof, subject in each case to redactions reasonably necessary in the good faith judgment of the Company and its inside and outside legal counsel to comply with applicable Antitrust Laws or other Laws or confidentiality provisions relating to ownership of or investments in any business or enterprise and (B) partnership, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar Contract; and
(x) any Contract involving a Governmental Entitysuch Company Material Contracts.
(b) Each Assumed Company Material Contract and each Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule is a legal, valid and binding obligation agreement of the CompanyCompany or a Company Subsidiary, as the case may be, and, to the Knowledge of the Company, each any counterparty thereto, and is in full force and effect, except where the failure to be in full force and effect would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Neither the Company nor any Company Subsidiary, on the one hand, nor, to the Company’s Knowledge, any other party to any Company Material Contract, on the other hand, is in violation of or in default under (nor does there exist any condition that, 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, which violation or default would reasonably be expected to result in, individually or in the aggregate, a Company Material Adverse Effect. Except for such matters that, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect, as of the date hereof, (i) neither the Company nor any Company Subsidiary has received any written notice from any counterparty that such counterparty intends to terminate, or not renew, any Company Material Contract, and (ii) neither the Company nor any Company Subsidiary has received any written notice from any counterparty to a Company Material Contract that such counterparty is enforceable against seeking the Companyrenegotiation thereof in any material respect or substitute performance thereunder in any material respect.
(c) Neither the Company nor any Company Subsidiary has entered into any transaction, andor series of related transactions, or understanding after January 2, 2011 and prior to the Knowledge date hereof, nor are there as of the Companydate hereof any currently proposed transactions, each such other party in accordance with its terms subjector series of related transactions, agreements, arrangements or understandings, in each case, that would be subject to disclosure pursuant to Item 404 of Regulation S-K that has not been disclosed in the Company SEC Reports filed with the SEC prior to the effect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and neither the Company nor, to the Knowledge of the Company, any other party to such Contract is in material default or material breach of such Contract, and, to the Knowledge of the Company, there does not exist any event, condition or omission that would constitute such a material default or material breach (whether by lapse of time or notice or both) under any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1, 2018, the Company has not received any written notice of termination or nonrenewal with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge of the Company, no other party to any such Contract intends to provide any such noticedate hereof.
Appears in 1 contract
Sources: Merger Agreement (Safeway Inc)
Contracts. (aa. Section 3.11(a) Except as set forth on Section 3.11 of the Company Disclosure Schedule (which (i) includes any amendment, supplement or modification to any Contract listed therein and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into pursuant to the terms of other Contracts listed therein)sets forth, as of the date hereofof this Agreement, neither a complete and correct list of the Contracts to which the Company nor any of its Subsidiaries or a Company Subsidiary is a party to or bound by any of that are included within the following Contracts that are Related to the Businesscategories:
(i) i. any Contract with (A) any staffing companyvendor, temporary employee agency, professional employer organization supplier or other similar company Third Party to whom the Company or agencya Company Subsidiary made payments during the calendar year of 2022 in excess of $150,000 in the aggregate other than Contracts with respect to Company Benefit Plans or any Leased Real Property or (B) any Material Company Customer (excluding, in each case, sales orders and purchase orders issued in the Ordinary Course);
ii. any Contract that sets forth the terms of a joint venture, partnership or other partial ownership arrangement or sharing of profits or losses with any other Person, in each case, that is material to the Company Business as currently conducted and under which there are continuing obligations by a party thereto (ii) for clarity, excluding Contracts that contain any collective bargaining agreement or similar Contract with an employee representative or labor group representing any Business Employeesroyalty arrangement but that do not otherwise contemplate a joint venture type arrangement);
(iii) . any Contract relating that limits or purports to Indebtedness limit or restrict the ability of the Company or a Company Subsidiary to mortgagingcompete or engage in any line of business or with any Person or in any geographic area or during any period of time, pledging if such limitation or otherwise placing restriction would adversely impact the Company Business as currently conducted (and, for the avoidance of doubt, an obligation not to solicit or hire any employees or independent contractors will not be deemed to limit or restrict the ability of the Company or any Company Subsidiary to compete or engage in any line of business or with any Person or in any geographic area or during any period of time);
iv. any Contract (A) under which the Company or any Company Subsidiary incurs any indebtedness for borrowed money in excess of $100,000 or (B) that grants a Lien on any material asset of the Company or a Company Subsidiary (other than a Permitted Lien) on any Lien or a Lien that will be released as of the Transferred Assets or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangementsClosing);
(iv) v. any lease or sublease of Leased Real Property;
vi. any Contract (A) Contract for the purchase, assignment, transfer or other acquisition of any business, material business line, all or substantially all of the assets of, or all or substantially all of the equity interests in any Person , (B) the disposition or group sale of related Contractsany business, material business line, all or substantially all of the assets of, or all or substantially all of the equity interests in any Person, in each case of clauses (A) relating to or regarding Intellectual Property or (B) IT Asset Contract that contains express representations, covenants, indemnities or other obligations (excluding commercially availableincluding indemnification, off-the-shelf Software with a replacement cost “earn out” or an annual license fee of less than $50,000 in the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregate);
(vother contingent obligations) any Contract which prohibits the Company or any of its Subsidiaries from competing or otherwise freely engaging in the Business as currently conducted anywhere in the world in any material respect or that otherwise restricts any activities of the Company or any Company Subsidiary that are still in effect as of its the date of this Agreement or (C) that contains a right of first refusal or similar right or option to acquire or exclusively license all or a material portion of the assets of the Company and the Company Subsidiaries taken as a whole;
vii. any Contract under which (A) any Third Party directly or indirectly guarantees any material liabilities or obligations of the Company or a Company Subsidiary or (B) the Company or a Company Subsidiary guarantees any material liabilities or obligations of any Third Party;
viii. any employment Contract for any Employee that as of the date of this Agreement has an annual base salary in excess of $200,000 (excluding any Contract providing for employment at-will);
ix. any Contract under which the Company or any Company Subsidiary receives as of March 31, 2023 contracted annual recurring revenue of $400,000 or more that provides any customer of the Company or any Company Subsidiary with respect pricing, discounts or benefits that change based on the pricing, discounts or benefits offered to the Business as currently conducted other customer(s) of the Company or such Company Subsidiary, including Contracts containing “most favored nation” or “favored pricing” provisions;
x. any Contract that provides for a settlement, conciliation or similar arrangement in connection with any Proceeding or threatened Proceeding, which includes any material respect;
non-monetary remedies that will continue, or pursuant to which the Company or a Company Subsidiary is required to make any payments in excess of $100,000, after the Closing; or xi. (viA) any Contract for to which any U.S. federal Governmental Entity is a party and (B) any Contract under which the sale Company or any Company Subsidiary receives as of Products March 31, 2023 contracted annual recurring revenue of $300,000 or servicesmore to which any Governmental Entity other than U.S. federal Governmental Entities is a party (other than, in each case, containing “most-favored nation” pricing terms or any exclusive dealing arrangement or any “requirements” Contract;Permits).
b. The Contracts set forth in Section 3.11(a) of the Company Disclosure Schedule and the Company License Agreements (vii) any Shared Contract;
(viii) any Contract with any Material Customer or Material Supplier (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditions), and any other Contract which involves the payment by or to, performance of services by or for, or the delivery of goods by or to, or capital expenditures bycollectively, the “Company Material Contracts”) are valid, binding and in excess of $750,000 in full force and effect with respect to the aggregate over the shorter of: (A) the term of such Contract Company or (B) the 2019 calendar year;
(A) any Contract relating to ownership of or investments in any business or enterprise and (B) partnershipa Company Subsidiary, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar Contract; and
(x) any Contract involving a Governmental Entity.
(b) Each Assumed Contract and each Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule is a legal, valid and binding obligation of the Companyas applicable, and, to the Knowledge of the Company, each other party thereto, subject, as to such Contract, and is enforceable against the Company, andenforcement, to the Knowledge of Enforceability Exceptions, except (i) to the Company, each such other party extent that any Company Material Contract expires or is terminated in accordance with its terms subjectterms, and (ii) for such failures to be valid and binding or to be in each casefull force and effect that would not, individually or in the aggregate, be material to the effect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally Company and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and neither the Company norSubsidiaries, to taken as a whole. Neither the Knowledge of the Company, Company nor any other party to such Contract Company Subsidiary is in material default breach or material breach of such Contract, and, to the Knowledge of the Company, there does not exist any event, condition or omission that would constitute such a material default or material breach (whether by lapse of time or notice or both) under any Assumed Company Material Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1which it is a party, 2018, the Company has not received any written notice of termination or nonrenewal with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge of the Company, no other party to any Company Material Contract is in material breach or material default thereunder. Except as set forth on Section 3.11(b) of the Company Disclosure Schedule, as of the date of this Agreement, neither the Company nor any Company Subsidiary has given any oral or written notice or received any written notice, or to the Company’s Knowledge, any oral notice, terminating, not renewing, or expressing an intent to terminate or not to renew any Company Material Contract. The Company and each Company Subsidiary party to a Company Material Contract has performed in all material respects all obligations, if any, required to be performed by it pursuant to such Company Material Contract. Complete and correct copies of all Company Material Contracts, including all amendments and material statements of work thereto, have been made available to Parent, except to the extent such Company Material Contracts have been redacted to (i) enable compliance with Laws, or (ii) comply with confidentiality obligations owed to Third Parties.
c. With respect to each Contract intends listed or required to provide be listed on Section 3.11(a)(xii) of the Company Disclosure Schedule (“Government Contract”) or any bid which, if accepted, would result in a Government Contract (a “Government Bid”), except as set forth on Section 3.11(c) of the Company Disclosure Schedule: (i) the Company or a Company Subsidiary, as applicable, has complied in all material respects with all material terms and conditions of such Government Contract or Government Bid, including all clauses, provisions and requirements incorporated expressly by reference or by operation of Law therein; (ii) all representations and certifications executed, acknowledged or binding in such Government Contract or Government Bid were complete and correct in all material respects as of the dates they were made (or deemed made), and the Company or a Company Subsidiary, as applicable, has complied in all material respects with all such representations and certifications; (iii) all information submitted by the Company or a Company Subsidiary, as applicable, in support of the negotiation of the Government Contracts or Government Bids, or modifications thereto, or in support of requests for payments thereunder, was, as of the date of submission, accurate in all material respects except to the extent limited on such a date by a Company or Company Subsidiary qualification based on knowledge; (iv) no Governmental Entity nor any prime contractor, subcontractor or other Person has notified the Company or a Company Subsidiary, either in writing or, to the Knowledge of the Company, orally, that the Company or a Company Subsidiary within the past three years has materially breached or materially violated any Law, certification, representation, clause, provision or requirement pertaining to such Government Contract or Government Bid; (v) in the three-year period immediately preceding the date of this Agreement, neither the Company nor any Company Subsidiary has been notified in writing or, to the Knowledge of the Company, orally, by any Governmental Entity or any prime contractor that any such noticeGovernment Contract has been terminated for default, and no cure notice or show cause notice is currently in effect pertaining to any such Government Contract; (vi) in the three-year period immediately preceding the date of this Agreement, to the Knowledge of the Company, no money due to the Company or a Company Subsidiary pertaining to such Government Contract has been withheld or offset nor has any claim been made in writing to withhold or offset money; and (vii) the Company, the Company Subsidiaries nor any of the Company’s Principals as that term is defined in Federal Acquisition Regulation 52.209-5 are not currently, and within the past three years have not been, suspended or debarred from doing business with a Governmental Entity, or, to the Company’s Knowledge, been proposed for suspension or debarment, or subject to a finding of non-responsibility or ineligibility for contracting with a Governmental Entity on a Government Bid.
Appears in 1 contract
Sources: Merger Agreement (Limeade, Inc)
Contracts. (a) Except as set forth on Section 3.11 in the proviso to clause "(xvi)" below, Part 3.8 of the Company Disclosure Schedule (which (i) includes any amendment, supplement or modification to any Contract listed therein and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into pursuant to the terms of other Contracts listed therein), contains a list as of the date hereof, neither of this Agreement of each of the following contracts to which the Company nor or any of its Subsidiaries is a party to or bound by any and that are in effect as of the following Contracts that are Related to date of this Agreement, together with all amendments and supplements thereto in effect as of the Business:date of this Agreement (each such contract, together with any amendment or supplement thereto, a "Material Contract"):
(i) each contract that limits or restricts in any Contract with material respect the ability of the Company or any staffing companyof its Subsidiaries to compete, temporary employee agencyor engage in any type of business, professional employer organization in any geographic area or other similar company or agencyline of business;
(ii) any collective bargaining each joint venture, partnership, limited liability company agreement or similar Contract agreement with an employee representative a third party relating to the formation, creation, operation, management or labor group representing control of any Business Employeespartnership or joint venture of the Company or any Subsidiary of the Company;
(iii) any Contract relating to Indebtedness each indemnification or to mortgaging, pledging employment contract between the Company or otherwise placing a Lien (other than a Permitted Lien) on any of its Subsidiaries and any director or officer of the Transferred Assets Company or letter any of credit arrangements, surety or performance bonds, guarantee, support or similar arrangementsits Subsidiaries;
(iv) any (A) Contract (each loan or group of related Contracts) relating to credit agreement, mortgage, note or regarding Intellectual Property or (B) IT Asset Contract (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee of less than $50,000 in the aggregate or other contract evidencing indebtedness for which the Company has made less than $50,000 in customized improvements in the aggregate);
(v) any Contract which prohibits money borrowed by the Company or any of its Subsidiaries from competing a third party lender, and each contract pursuant to which any such indebtedness for borrowed money is guaranteed by the Company or otherwise freely engaging any of its Subsidiaries;
(v) each customer or supply contract (excluding purchase orders given or received in the Business as currently conducted anywhere ordinary course of business) under which the Company or any Subsidiary of the Company paid or received in excess of $500,000 in fiscal year 2004;
(vi) each "single source" supply contract (excluding purchase orders given in the world in ordinary course of business) pursuant to which goods or materials that are material to the Company's business are supplied to the Company or any Subsidiary of the Company from an exclusive source;
(vii) each exclusive sales representative or exclusive distribution contract to which the Company or any of its Subsidiaries is a party;
(viii) each collective bargaining agreement to which the Company or any of its Subsidiaries is a party;
(ix) each Company Lease;
(x) each agreement or series of related agreements, including any option to purchase, relating to the acquisition or disposition of any material respect business (whether by merger, sale of stock, sale of assets or otherwise), or a substantial portion of the assets of any material business, pursuant to which the Company or any of its Subsidiaries has any rights or obligations (other than confidentiality, warranty and indemnification rights or obligations) continuing in effect as of date of this Agreement;
(xi) each customer or supply agreement or contract to which the Company or any of its Subsidiaries is a party with any Governmental Entity (whether the Company or any Subsidiary of the Company is a prime contractor or subcontractor under such contract) under which the Company or any of its Subsidiaries would receive more than $500,000 and any pending bid or proposal under any proposed prime contract or subcontract not relating to existing products under which the Company or any of its Subsidiaries would receive more than $500,000 and pursuant to which the Company would have a binding obligation to perform if such pending bid or proposal was accepted;
(xii) each consulting contract that otherwise restricts (A) is not terminable by the Company or any activities of its Subsidiaries on notice of 90 days or less and (B) involves monthly payments in excess of $30,000;
(xiii) (A) each contract granting to the Company or its Subsidiaries an express license to any material IP Rights necessary to make, use or sell the Company's products (other than contracts granting licenses to readily available commercial software, freeware or "open source" software) and (B) each contract restricting the Company's rights to use or register any material Company IP which is not terminable (without cost or penalty) within 90 days or less;
(xiv) each contract between the Company or any of its Subsidiaries on the one hand, and any officer, director or other individual affiliate of the Company or any of its Subsidiaries, on the other hand, except for any such contract that (A) is substantially identical in form to a form of contract entered into by the Company or any of its Subsidiaries with non-affiliated parties, or (B) is not expected to result in payments or the provision of benefits to such officer, director or other individual affiliate valued at more than $50,000 over the term of the contract;
(xv) each other agreement the premature termination of which is reasonably likely to be material to the Company and its Subsidiaries, taken together; or
(xvi) each other contract that would be required to be filed as an exhibit to an Annual Report on Form 10-K under the Exchange Act (if such Annual Report were filed by the Company with the SEC on the date of this Agreement); provided, however, that, while all of the contracts covered by this clause "(xvi)" shall be deemed to be "Material Contracts," Part 3.8 of the Company Disclosure Schedule does not list those contracts covered by this clause "(xvi)" that have previously been filed as exhibits to any of the Company SEC Documents.
(b) The Company has made available to Parent copies of each Material Contract in effect as of the date of this Agreement, together with all amendments and supplements thereto in effect as of the date of this Agreement. Each of the Material Contracts is a valid and binding agreement of the Company or a Subsidiary of the Company and is in full force and effect as of the date of this Agreement. As of the date of this Agreement, there are no existing breaches or defaults on the part of the Company or any of its Subsidiaries with respect under any Material Contract, except for breaches and defaults that would not be material to the Business Company and its Subsidiaries, taken as currently conducted in any material respect;
(vi) any Contract for the sale of Products or services, in each case, containing “most-favored nation” pricing terms or any exclusive dealing arrangement or any “requirements” Contract;
(vii) any Shared Contract;
(viii) any Contract with any Material Customer or Material Supplier (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditions), and any other Contract which involves the payment by or to, performance of services by or for, or the delivery of goods by or to, or capital expenditures by, the Company in excess of $750,000 in the aggregate over the shorter of: (A) the term of such Contract or (B) the 2019 calendar year;
(A) any Contract relating to ownership of or investments in any business or enterprise and (B) partnership, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar Contract; and
(x) any Contract involving a Governmental Entity.
(b) Each Assumed Contract and each Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule is a legal, valid and binding obligation of the Companywhole, and, to the Knowledge knowledge of the CompanyCompany as of the date of this Agreement, each there are no existing breaches or defaults on the part of any other Person under any Material Contract, except for breaches and defaults that would not be material to the Company and its Subsidiaries, taken as a whole. No other party to such Contract, and is enforceable against the Company, and, a Material Contract has provided to the Knowledge of the CompanyCompany or its Subsidiaries, each such other party in accordance with its terms subject, in each case, to the effect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and neither the Company nor, to the Knowledge of the Company, any other party to such Contract is in material default or material breach of such Contract, and, to the Knowledge of the Company, there does not exist any event, condition or omission that would constitute such a material default or material breach (whether by lapse of time or notice or both) under any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule. Since between January 1, 20182003 and the date of this Agreement, the Company has not received any written notice of termination or nonrenewal with respect any intention to prematurely terminate any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge of the Company, no other party to any such Contract intends to provide any such noticeMaterial Contract.
Appears in 1 contract
Contracts. (a) Except as set forth on Section 3.11 3.8(a) of the Disclosure Schedule (which (i) includes any amendmentlists each Contract of a nature described below, supplement or modification to any Contract listed therein and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into pursuant to the terms of other Contracts listed therein), in effect as of the date hereofof this Agreement, neither the to which any Acquired Company nor any of its Subsidiaries or Company Subsidiary is a party to or bound by any of the following Contracts that are Related to the Business:(each a “Major Contract”):
(i) any Contract each agreement with any staffing companyofficer, temporary individual employee agencyor independent contractor on a full-time, professional employer organization part-time, consulting or other basis, including each agreement with respect to employment, deferred compensation, severance, separation, change in control, retention or similar company arrangements for the provision of services to any Acquired Company or agencyCompany Subsidiary, but excluding agreements that are or on the Closing Date will be terminable at will by any Acquired Company or Company Subsidiary without any Liability to any Acquired Company or Company Subsidiary, except Liability with respect to services rendered before the termination thereof;
(ii) any each collective bargaining agreement or similar other Contract with an any labor union or employee representative or labor group representing any Business Employeesbargaining representative;
(iii) any each Contract relating purporting to Indebtedness or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any limit the freedom of the Transferred Assets Business or letter any Acquired Company or Company Subsidiary to engage in any line of credit arrangementsbusiness or operate in any jurisdiction, surety including any agreement that contains any exclusivity, non-competition, non-solicitation or performance bonds, guarantee, support or similar arrangementsno-hire provisions;
(iv) any each operating lease (Aas lessor or lessee) Contract (or group of related Contracts) relating to or regarding Intellectual Property or (B) IT Asset Contract (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee tangible personal property that calls for payments of less greater than $50,000 in the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregate)per year;
(v) each Contract to pay or receive any Contract which prohibits the Company royalty or license fee or to license (either as licensor or licensee) any of its Subsidiaries from competing or otherwise freely engaging in the Business as currently conducted anywhere in the world Intellectual Property (other than any (1) license for Intellectual Property embedded in any material respect equipment or that otherwise restricts fixture, (2) non‑exclusive implied license of Intellectual Property or (3) non‑exclusive license for the use of any activities of the Company or any of its Subsidiaries commercially available off‑the‑shelf software with respect to the Business as currently conducted in any material respectannual payments less than $50,000 per year);
(vi) each Contract pursuant to which (1) any Contract third Person creates, develops or customizes for or on behalf of an Acquired Company or Company Subsidiary any Intellectual Property that is material to the sale business of Products any Acquired Company or servicesCompany Subsidiary or (2) any Acquired Company or Company Subsidiary creates, in each case, containing “most-favored nation” pricing terms develops or customizes any exclusive dealing arrangement or Intellectual Property for any “requirements” Contractthird Person;
(vii) each Contract pursuant to which any Shared Contractthird Person provides support or maintenance for IT Systems material to the business of any Acquired Company or Company Subsidiary for aggregate annual or one-time fees in excess of $50,000;
(viii) each Contract regarding any management, personal service or consulting or other similar type of Contract with any Material Customer or Material Supplier (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditions), and any other Contract which involves the payment that is reasonably expected to involve payments by or to, performance to any Acquired Company or Company Subsidiary of services by or for, or the delivery of goods by or to, or capital expenditures by, the Company in excess of greater than $750,000 in the aggregate over the shorter of: (A) the term of such Contract or (B) the 2019 calendar 50,000 per year;
(Aix) each Contract for the purchase by or from any Acquired Company or Company Subsidiary of any supply or product that calls for performance over a period of more than one year that is reasonably expected to involve payments by or to any Acquired Company or Company Subsidiary of greater than $50,000 per year;
(x) each Contract under which any Acquired Company or 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 (in the form of a loan, capital contribution or otherwise) any other Person, other than any other Acquired Company or Company Subsidiary;
(xi) each Contract relating to ownership involving any Indebtedness or the imposition of any Encumbrance on any asset of any Acquired Company or investments in any business Company Subsidiary;
(xii) each Contract with a Seller or enterprise and Affiliate or family member of a Seller;
(Bxiii) each Contract for capital expenditures of greater than $50,000;
(xiv) each partnership, joint venture, co-owner, limited liability company collaboration or strategic alliance shareholders or other similar Contract;
(xv) each Contract providing for the acquisition or disposition of any business or Person or of any interest in, or material assets properties or rights of, any business enterprise that contains ongoing obligations of an Acquired Company or Company Subsidiary;
(xvi) each Contract under which any Acquired Company or Company Subsidiary has advanced or loaned money to any other Person, other than any other Acquired Company or Company Subsidiary;
(xvii) each Contract under which any Seller, Acquired Company, or 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;
(xviii) each Real Property Lease;
(xix) each Contract (A) granting any Person the exclusive rights to license, market, distribute, sell or deliver any Acquired Company or Company Subsidiary product or service, (B) requiring any Acquired Company or Company Subsidiary to exclusively sell, lease or distribute products or services of any Person, (C) requiring any Acquired Company or Company Subsidiary to exclusively source materials, products or services, (D) that contains “most favored nation” provisions, or (E) that contains minimum purchase or minimum sale obligations equal to or in excess of $50,000 per year;
(xx) each Contract that relates to a settlement of any Proceeding under which an Acquired Company or Company Subsidiary has any continuing liability in excess of $50,000;
(xxi) each Contract between and among the Acquired Companies and the Company Subsidiaries;
(xxii) each Contract with a Governmental Entity; and
(xxxiii) any each Contract involving with a Governmental EntityMajor Dealer or Major Supplier.
(b) Each Assumed Sellers have made available to Buyer a true, correct and complete copy of each Major Contract and each Contract disclosed or required to be disclosed on Section 3.11 (or, in the case of any oral Major Contract, an accurate summary of the Disclosure Schedule 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 legalfiling or notice, valid means the making of such filing or notice), (i) such Major Contract is in full force and binding obligation of the Company, and, to the Knowledge of the Company, each other party to such Contract, effect and is enforceable against the Company, and, to the Knowledge of the Company, each such other party in accordance with its terms subject, in each case, to against the effect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance Acquired Company or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability Company Subsidiary that is considered in a proceeding in equity or at law), and neither the Company nor, to the Knowledge of the Company, any other party to such Contract is in material default or material breach of such Contract, thereto and, to the Knowledge of Acquired Companies’ Knowledge, against each other party thereto, except in each case to the Companyextent enforceability may be limited by any Enforcement Limitation, there does (ii) such Acquired Company or Company Subsidiary is not exist any event, condition or omission that would constitute such a material default or material breach (whether by lapse of time or notice or both) under any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1, 2018, the Company has not received any written notice of termination or nonrenewal with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge of the CompanyAcquired Companies’ Knowledge, no other party thereto is in material breach under such Major Contract and (iii) no party to such Major Contract has terminated, modified, accelerated, or canceled such Major Contract or any material right or Liability thereunder or communicated in writing such Contract intends party’s desire or intent to provide any do so.
(c) All Contracts with the Acquired Companies dealers, agents, and similar counter-parties currently in effect were prepared using the Acquired Companies form of Dealership Sales and Service Agreement set forth on Schedule 3.8(c) and contain the same terms, and only those terms, as set forth in such noticeform of Dealership Sales and Service Agreement.
Appears in 1 contract
Sources: Stock Purchase Agreement (Winnebago Industries Inc)
Contracts. (a) Except as set Schedule 3.10 sets forth on Section 3.11 a true and complete list of the Disclosure Schedule (following Contractual Obligations to which (i) includes any amendment, supplement Target Company is a party or modification to any Contract listed therein and (ii) shall not include Contracts that are invoices, statements of work by which it or purchase orders entered into pursuant to the terms of other Contracts listed therein), as of the date hereof, neither the Company nor any of its Subsidiaries properties is a party to or bound by any of the following Contracts that are Related to the Businessbound:
(i) any Contract with any staffing companyAll collective bargaining agreements and other labor agreements, temporary employee agencyall employment or consulting agreements, professional employer organization and all other plans, agreements, arrangements, practices or other similar company Contractual Obligations (other than any Employee Plan) which constitute compensation or agency;benefits, including post retirement benefits, to any of the officers or employees or former officers or employees (or any spouse or family member of any such current or former officer or employee) of any Target Company.
(ii) All Contractual Obligations under which any collective bargaining agreement Target Company is or may become obligated to pay any legal, accounting, brokerage, finder's or similar Contract with an employee representative fees or labor group representing expenses in connection with, or has incurred any Business Employees;severance pay or special compensation obligations which would become payable by reason of, this Agreement or consummation of the transactions contemplated hereby.
(iii) any Contract relating All Contractual Obligations (including options) to Indebtedness or to mortgaging, pledging sell or otherwise placing a Lien (other than a Permitted Lien) on dispose of any Assets except in the Ordinary Course of the Transferred Assets or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangements;Business.
(iv) All Contractual Obligations under which any Target Company has or will after the Closing have any Liability to or for the benefit of any Seller or any Affiliate of any Seller.
(v) All Contractual Obligations under which any Target Company has any Liability for indebtedness or constituting or giving rise to a guarantee of (or similar obligation in respect of) any Liability of any Person, or under which any Person has any Liability constituting or giving rise to a guarantee of (or similar obligation in respect of) any Liability of any Target Company (including partnership and joint venture agreements).
(vi) All Contractual Obligations under which any Target Company is or may become obligated to pay any amount in respect of indemnification obligations, purchase price adjustment or otherwise in connection with any (A) Contract acquisition or disposition of assets or securities, (B) merger, consolidation or other business combination or (C) series or group of related Contractstransactions or events of a type specified in subclauses (A) relating to or regarding Intellectual Property or and (B).
(vii) IT Asset Contract All distributorship agreements, commercial agency agreements, agreements with sales representatives and all other Contractual Obligations (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee of less other than $50,000 purchase orders and sales orders entered into in the aggregate Ordinary Course of Business and not in excess, individually, of $10,000 in the case of purchase orders or for $10,000 in the case of sales orders) with distributors, suppliers, vendors, or other suppliers of goods or services.
(viii) All purchase obligations (whether or not in the Ordinary Course of Business) which require minimum purchases by any Target Company.
(ix) All standard forms of purchase orders and sales orders.
(x) All non-terminable Contractual Obligations.
(xi) All Contractual Obligations (other than purchase orders, sales orders or operating expenses incurred in the Ordinary Course of Business) not otherwise required to be listed on Schedule 3.10 pursuant to clauses (i) through (x) above which individually involve Liabilities of any Target Company in excess of $50,000.
(b) True and complete copies of the Contractual Obligations which are required to be listed on Schedule 3.10 (the "Contracts") that are --------- in writing and an accurate and complete description of all oral Contracts have been delivered to Parent.
(c) Each Target Company has made less than $50,000 complied with all commitments and obligations pertaining to its Contracts and none of the Target Companies is in customized improvements in the aggregate);
(v) default under any Contract which prohibits and no Target Company has received or given any notice of default thereunder and, to the Company or any of its Subsidiaries from competing or otherwise freely engaging in the Business as currently conducted anywhere in the world in any material respect or that otherwise restricts any activities knowledge of the Company or any of its Subsidiaries with respect Target Companies and each Manager Seller, no other party to the Business as currently conducted in any material respect;
(vi) any Contract for is in default thereunder and no event has occurred which, with the sale passage of Products or servicestime, would result in a default under any Contract, except, in each case, containing “most-favored nation” pricing terms or any exclusive dealing arrangement or any “requirements” Contract;
(vii) any Shared Contract;
(viii) any Contract with any Material Customer or Material Supplier (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with where the Company’s standard terms and conditions), and any other Contract which involves the payment by or to, performance of services by or for, default or the delivery of goods by failure to so comply has not had and is not reasonably likely to have, individually or to, or capital expenditures by, the Company in excess of $750,000 in the aggregate over the shorter of: (A) the term of such Contract or (B) the 2019 calendar year;
(A) any Contract relating to ownership of or investments in any business or enterprise and (B) partnershipaggregate, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar Contract; and
(x) any Contract involving a Governmental EntityMaterial Adverse Effect.
(bd) Each Assumed such Contract and each Contract disclosed or required to be disclosed on Section 3.11 of is the Disclosure Schedule is a legal, valid and binding obligation of the Company, applicable Target Company and, to the Knowledge knowledge of the CompanyTarget Companies and each Manager Seller, each the other party to such Contract, and is enforceable against the Company, and, to the Knowledge of the Company, each such other party in accordance with its terms subject, in each case, to the effect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and neither the Company nor, to the Knowledge of the Company, any other party to parties thereto. Each such Contract is in material default or material breach of such Contract, and, full force and effect. Neither any Target Company nor any Manager Seller has any reason to the Knowledge of the Company, there does not exist any event, condition or omission believe that would constitute such a material default or material breach (whether by lapse of time or notice or both) under any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1, 2018, the Company has not received any written notice of termination or nonrenewal with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge of the Company, no other party to any such Contract intends to provide any such noticewill not continue in full force and effect following the consummation of the purchase of the Shares and the other transactions contemplated hereby.
Appears in 1 contract
Sources: Stock Purchase Agreement (SMTC Corp)
Contracts. (a) Except as set forth on Section 3.11 of the Disclosure Schedule (which (i) includes any amendment, supplement or modification Section 4(m)(i) of the Seller Disclosure Letter identifies the following Contracts to any Contract listed therein and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into pursuant to the terms of other Contracts listed therein), which an Acquired Company is a party as of the date hereofhereof (provided, neither however, that Contracts that are (x) insurance policies issued by the Insurance Companies in the Ordinary Course of Business or (y) Employee Benefit Plans shall not be required to be set forth in Section 4(m)(i) of the Seller Disclosure Letter):
(A) each Contract material to the Business relating to the acquisition, transfer, use, development, sharing or license of any technology;
(B) each Contract containing covenants that would restrict or limit the ability of any Acquired Company nor after the Closing to compete in any business or with any Person or in any geographic area;
(C) each Contract for employment or consulting services with any Business Employee, other than at-will agreements that can be terminated at any time for any reason without the payment of its Subsidiaries any severance or other post-termination benefits;
(D) each Contract providing for change in control, retention and/or severance benefits;
(E) each Contract that is a party to or bound by collective bargaining agreement covering any of the following Contracts that are Related to the Business:
(i) any Contract with any staffing company, temporary employee agency, professional employer organization or other similar company or agency;
(ii) any collective bargaining agreement or similar Contract with an employee representative or labor group representing any Business Employees;
(iiiF) any each Contract relating to Indebtedness the acquisition, issuance or transfer of any securities of any Acquired Company since January 1, 2014;
(G) each Contract involving an amount in excess of $50,000 relating to mortgagingan indenture, pledging mortgage, promissory note, loan agreement or otherwise placing a other Contract relating to any indebtedness for borrowed money;
(H) each Contract involving an amount in excess of $50,000 relating to the creation of any Lien with respect to any asset of any Acquired Company;
(I) each Contract (other than a Permitted LienCompany Form) on material to the Business involving or incorporating any of the Transferred Assets guaranty, pledge, performance or letter of credit arrangementscompletion bond, indemnity or surety or performance bonds, guarantee, support or similar arrangementsarrangement;
(ivJ) any (A) each Contract (material to the Business creating or group of related Contracts) relating to any partnership or regarding Intellectual Property joint venture or (B) IT Asset Contract (excluding commercially availableany sharing of revenues, off-the-shelf Software with a replacement cost profits, losses, costs or an annual license fee of less than $50,000 in the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregate)liabilities;
(vK) any Contract which prohibits the Company or any of its Subsidiaries from competing or otherwise freely engaging in the Business as currently conducted anywhere in the world in any material respect or that otherwise restricts any activities of the Company or any of its Subsidiaries with respect to the Business as currently conducted in any material respect;
(vi) any Contract for the sale of Products or services, in each case, containing “most-favored nation” pricing terms or any exclusive dealing arrangement or any “requirements” Contract;
(vii) any Shared Contract;
(viii) any Contract with any Material Customer or Material Supplier (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditions), and any other Contract which involves the payment by or to, performance of services by or for, or the delivery of goods by or to, or capital expenditures by, the Company in excess of $750,000 in the aggregate over the shorter of: (A) the term of such Contract or (B) the 2019 calendar year;
(A) any Contract relating to ownership of or investments in any business or enterprise and (B) partnership, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar Reinsurance Contract; and
(xL) each other Contract under which the obligations of any Contract involving a Governmental Entityparty thereto involve an amount in excess of $100,000. Contracts in the respective categories described in clauses (A) through (L) above are referred to in this Agreement as “Material Contracts.”
(bii) Seller has delivered to Buyer accurate and complete copies of all written Material Contracts. Each Assumed Contract and each Contract disclosed or required to be disclosed on identified in Section 3.11 4(m)(i) of the Seller Disclosure Schedule Letter is a legal, valid and binding obligation of the Company, and, to the Knowledge of the Company, each other party to such Contract, in full force and effect and is enforceable against by the Company, and, to the Knowledge of the Company, each such other party applicable Acquired Company in accordance with its terms subject, in each case, to terms.
(iii) Seller and the effect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance Acquired Companies represent and warrant that:
(A) no Acquired Company has materially violated or preferential transfersbreached, or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and neither the Company nor, to the Knowledge of the Companycommitted any material default under, any other party to such Contract is in material default or material breach of such Material Contract, and, to the Knowledge of Seller, no other Person has materially violated or breached, or committed any material default under, any Material Contract;
(B) to the CompanyKnowledge of Seller, there does not exist no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, (1) result in a material violation or breach of any eventof the provisions of any Material Contract, condition or omission that would constitute such (2) give any Person the right to declare a material default or material breach (whether by lapse of time or notice or both) exercise any remedy under any Assumed Contract Material Contract, (3) give any Person the right to accelerate the maturity or performance of any Contract disclosed Material Contract, or required (4) give any Person the right to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1cancel, 2018, the terminate or modify any Material Contract;
(C) no Acquired Company has not received any written notice or other communication regarding any actual or possible material violation or breach of, or material default under, any Material Contract;
(D) no Acquired Company has waived any of termination its material rights under any Material Contract; and
(E) no disputes have arisen or nonrenewal with respect been resolved relating to the interpretation of a Material Contract, the effect of which would materially limit the rights, obligations or liabilities of any party to such Material Contract.
(iv) No Person has notified any Acquired Company, or given any Acquired Company reason to believe, that a Material Contract will be cancelled, terminated or not renewed. No Person is renegotiating, or has a right pursuant to the terms of any Material Contract to renegotiate, any amount paid or payable to any Assumed Acquired Company under any Material Contract or any Contract disclosed other material term or required to be disclosed on Section 3.11 provision of the Disclosure Schedule and, to the Knowledge of the Company, no other party to any such Contract intends to provide any such noticeMaterial Contract.
Appears in 1 contract
Contracts. (a) Except as set forth on Section 3.11 2.18(a) of the Disclosure Schedule --------- ------------------------------------------ (with paragraph references corresponding to those set forth below) contains a true and complete list of each of the following Contracts or other arrangements (true and complete copies or, if none, reasonably complete and accurate written descriptions of which, together with all amendments and supplements thereto and all waivers of any terms thereof, have been delivered to Purchaser prior to the execution of this Agreement), to which the Company or any Subsidiary is a party or by which any of their respective Assets and Properties is bound:
(iA) includes all Contracts (excluding Benefit Plans) providing for a commitment of employment or consultation services for a specified or unspecified term, the name, position and rate of compensation of each Person party to such a Contract and the expiration date of each such Contract; and (B) any amendmentwritten or unwritten representations, supplement commitments, promises, communications or modification courses of conduct (excluding Benefit Plans and not embodied in a Contract) involving an obligation of the Company or any Subsidiary to make payments in any Contract listed therein and year, other than with respect to salary or incentive compensation payments in the ordinary course of business;
(ii) shall not include all Contracts with any Person containing any provision or covenant prohibiting or limiting the ability of the Company or any Subsidiary to engage in any business activity or compete with any Person or, except as provided in Section 5.10, prohibiting or limiting the ability of any Person to compete with the Company or any Subsidiary;
(iii) all partnership, joint venture, shareholders' or other similar Contracts with any Person;
(iv) all Contracts relating to Indebtedness of the Company or any Subsidiary or to Preferred Shares issued by the Company or any Subsidiary (other than Indebtedness owing to or Preferred Shares owned by the Company or any wholly-owned Subsidiary);
(v) all Contracts with distributors, dealers, manufacturer's representatives, sales agencies or franchisees;
(vi) all Contracts relating to (A) the future disposition or acquisition of any Assets and Properties, other than dispositions or acquisitions in the ordinary course of business consistent with past practice, and (B) any Business Combination;
(vii) all Contracts between or among the Company or any Subsidiary, on the one hand, and any Seller, or officer, director, Affiliate or Associate of such Seller or any Associate of any such officer, director or Affiliate (other than the Company or any Subsidiary), on the other hand;
(viii) all collective bargaining or similar labor Contracts;
(ix) all Contracts that are invoices(A) limit or contain restrictions on the ability of the Company or any Subsidiary to declare or pay dividends on, statements to make any other distribution in respect of work or to issue or purchase, redeem or otherwise acquire its capital shares, to incur Indebtedness, to incur or suffer to exist any Lien, to purchase orders entered into or sell any Assets and Properties, to change the lines of business in which it participates or engages or to engage in any Business Combination or (B) require the Company or any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial condition; and
(x) all other Contracts that involve the payment or potential payment, pursuant to the terms of other Contracts listed therein)any such Contract, by or to the Company or any Subsidiary of more than US$50,000.
(b) Each Contract required to be disclosed in Section 2.18(a) of ------------------ the Disclosure Schedule is in full force and effect and constitutes a legal, ----------------------- valid and binding agreement, enforceable in accordance with its terms, of each party thereto; and except as disclosed in Section 2.18(b) of the date hereofDisclosure --------------------------------- Schedule neither the Company, any Subsidiary nor, to the knowledge of the -------- Sellers, the Company and the Subsidiaries, any other party to such Contract is, or has received notice that it is, in violation or breach of or default under any such Contract (or with notice or lapse of time or both, would be in violation or breach of or default under any such Contract).
(c) Except as disclosed in Section 2.18(c) of the Disclosure --------------------------------- Schedule, neither the Company nor any of its Subsidiaries Subsidiary is a party to or bound by any of the following Contracts -------- Contract that are Related has been or could reasonably be expected to the Business:
(i) any Contract with any staffing companybe, temporary employee agency, professional employer organization individually or other similar company or agency;
(ii) any collective bargaining agreement or similar Contract with an employee representative or labor group representing any Business Employees;
(iii) any Contract relating to Indebtedness or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any of the Transferred Assets or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangements;
(iv) any (A) Contract (or group of related Contracts) relating to or regarding Intellectual Property or (B) IT Asset Contract (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee of less than $50,000 in the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregate);
(v) with any Contract which prohibits the Company or any of its Subsidiaries from competing or otherwise freely engaging in other such Contracts, materially adverse to the Business as currently conducted anywhere in the world in any material respect or that otherwise restricts any activities Condition of the Company or any of its Subsidiaries with respect to the Business as currently conducted in any material respect;
(vi) any Contract for the sale of Products or services, in each case, containing “most-favored nation” pricing terms or any exclusive dealing arrangement or any “requirements” Contract;
(vii) any Shared Contract;
(viii) any Contract with any Material Customer or Material Supplier (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditions), and any other Contract which involves the payment by or to, performance of services by or for, or the delivery of goods by or to, or capital expenditures by, the Company in excess of $750,000 in the aggregate over the shorter of: (A) the term of such Contract or (B) the 2019 calendar year;
(A) any Contract relating to ownership of or investments in any business or enterprise and (B) partnership, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar Contract; and
(x) any Contract involving a Governmental EntitySubsidiaries.
(b) Each Assumed Contract and each Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule is a legal, valid and binding obligation of the Company, and, to the Knowledge of the Company, each other party to such Contract, and is enforceable against the Company, and, to the Knowledge of the Company, each such other party in accordance with its terms subject, in each case, to the effect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and neither the Company nor, to the Knowledge of the Company, any other party to such Contract is in material default or material breach of such Contract, and, to the Knowledge of the Company, there does not exist any event, condition or omission that would constitute such a material default or material breach (whether by lapse of time or notice or both) under any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1, 2018, the Company has not received any written notice of termination or nonrenewal with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge of the Company, no other party to any such Contract intends to provide any such notice.
Appears in 1 contract
Contracts. (a) Except as set forth on Section 3.11 3.08(a) of the Parent Disclosure Schedule (which (i) includes any amendment, supplement or modification to any Letter contains a list of each Galleria Contract listed therein and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into pursuant to the terms of other Contracts listed therein), is in effect as of the date hereofof this Agreement and that falls in one or more of the following categories (collectively, neither whether or not scheduled, the Company nor “Galleria Material Contracts”):
(i) a Contract containing covenants binding upon Parent or its Subsidiaries that restrict during any period of time the ability of Parent or any of its Subsidiaries to compete or engage in any business or geographic area and that would bind SplitCo or any of its Affiliates (including the Galleria Entities) following the Business Transfer Time;
(ii) a Contract containing any “most favored nations,” exclusivity or similar right or undertaking in favor of any party other than Parent and its Subsidiaries with respect to any material goods or services purchased or sold by Parent or its Subsidiaries and that would bind SplitCo or any of its Affiliates (including the Galleria Entities) following the Business Transfer Time;
(iii) a lease, sublease or similar Contract with any Person under which Parent or any of its Subsidiaries is a party lessor or sublessor of, or makes available for use to or bound by any of the following Contracts that are Related to the Business:
(i) Person, any Contract with any staffing company, temporary employee agency, professional employer organization or other similar company or agency;
(ii) any collective bargaining agreement or similar Contract with an employee representative or labor group representing any Business Employees;
(iii) any Contract relating to Indebtedness or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any of the Transferred Assets or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangementsGalleria Facilities;
(iv) a lease, sublease or similar Contract with any Person under which (A) Contract (Parent or group any of related Contracts) relating to its Subsidiaries is lessee of, or regarding Intellectual Property holds or uses, any material machinery, equipment, vehicle or other tangible personal property owned by any Person or (B) IT Asset Contract (excluding commercially availableParent or any of its Subsidiaries is a lessor or sublessor of, off-the-shelf Software or makes available for use by any Person, any material tangible personal property owned or leased by Parent or its Subsidiaries, in any such case which has an aggregate future liability or receivable, as the case may be, in excess of $10,000,000 in any calendar year and is not terminable by Parent or such Subsidiary by notice of not more than 60 days for a cost, individually or together with a replacement cost or an annual license fee any similar Contract, of less than $50,000 in the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregate)10,000,000;
(v) any a license or sublicense or other Contract under which prohibits the Company Parent or any of its Subsidiaries from competing is licensee or licensor, or sub-licensee or sub-licensor of, or otherwise freely engaging grants or is granted a right to use any material Intellectual Property used or held for use in the Galleria Business as currently conducted anywhere other than licenses to any shrink wrap, click wrap or other software that is generally commercially available and not customized;
(vi) a Contract for the sale of any Galleria Entity or material Galleria Asset or collection of Galleria Assets that are material to the Galleria Business in the world aggregate, other than Contracts entered into in any material respect or that otherwise restricts any activities the Ordinary Course of the Company Galleria Business that provide for the sale of Galleria Inventory (including any finished goods or work-in-process) or obsolete equipment;
(vii) a Contract relating primarily to the Galleria Business (or, in the case of the Non-Color Caldera Business portion of the Galleria Business, relating exclusively to the Non-Color Caldera Business) involving the payment of more than $10,000,000 for the purchase of materials, supplies, goods, services, equipment or other assets and that is (A) with any vendor from whom Parent or any of its Subsidiaries with purchased more than $10,000,000, in the aggregate in respect of the Galleria Business, in the fiscal year ended June 30, 2014, or would reasonably be expected to provide for the purchase of more than $10,000,000 in the aggregate in respect of the Galleria Business, in the fiscal year ended June 30, 2015 or any future 12-month period ended June 30 and (B) not terminable at will by Parent or any of its Subsidiaries (or by the Galleria Group following the Business as currently conducted in any material respect;
(viTransfer Time) any Contract for the sale of Products or services, in each case, containing “most-favored nation” pricing terms or any exclusive dealing arrangement or any “requirements” Contract;
(vii) any Shared Contracton less than 60 days’ notice without penalty;
(viii) any a Contract with any Material Customer or Material Supplier (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with a customer of the Company’s standard terms and conditions), and any other Contract which involves the payment by or to, performance of services by or forGalleria Business that involves, or the delivery of goods by or towould reasonably be expected to involve, or capital expenditures by, the Company in excess of $750,000 in the aggregate over the shorter of: (A) the term payment of more than $10,000,000 by such Contract customer to the Galleria Business in the fiscal year ended June 30, 2014 or any future 12-month period ended June 30 (other than purchase orders submitted in the Ordinary Course of the Galleria Business) or (B) the 2019 calendar yearpayment of more than $10,000,000 to such customer by the Galleria Business in the fiscal year ended June 30, 2014 or any future 12-month period ended June 30 pursuant to a “joint business plan” or other similar incentive arrangement;
(ix) a Contract relating to any Indebtedness to a third party that individually is in excess of $5,000,000;
(x) a Contract under which (A) any Contract relating to ownership Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of a Galleria Entity or investments in any business of the Galleria Business or enterprise and (B) a Galleria Entity or the Galleria Business has directly or indirectly guaranteed or assumed Indebtedness, Liabilities or obligations of another Person, in each case in excess of $5,000,000 individually or $10,000,000 in the aggregate;
(xi) a material settlement or compromise of any suit, claim, proceeding or dispute relating to the Galleria Business or any Galleria Entity that would materially and adversely impact the Galleria Business at or following the Business Transfer Time;
(xii) a Contract establishing or providing for any material partnership, strategic alliance, joint venture, co-owner, limited liability company collaboration venture or strategic alliance or other similar Contractmaterial collaboration; and
(xxiii) any other Contract involving a Governmental Entitynot made in the Ordinary Course of the Galleria Business that is material to the Galleria Business.
(b) Section 3.08(b) of the Parent Disclosure Letter contains a list of each Shared Business Contract that is in effect as of the date of this Agreement.
(c) Each Assumed Galleria Material Contract is valid, binding and each Contract disclosed in full force and effect and is enforceable by and against Parent or one of its Subsidiaries in accordance with its terms, except as has not been and would not reasonably be expected to be material to the Galleria Business. Each of Parent and its Subsidiaries has performed all obligations required to be disclosed on Section 3.11 of performed by it to date under the Disclosure Schedule Galleria Material Contracts to which it is a legal, valid party and binding obligation is not in breach of the Company, or default thereunder and, to the Knowledge of the Company, each other party to such Contract, and is enforceable against the Company, and, to the Knowledge of the Company, each such other party in accordance with its terms subject, in each case, to the effect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and neither the Company nor, to the Knowledge of the Company, any other party to such Contract is in material default or material breach of such Contract, and, to the Knowledge of the Company, there does not exist any event, condition or omission that would constitute such a material default or material breach (whether by lapse of time or notice or both) under any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1, 2018, the Company has not received any written notice of termination or nonrenewal with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge of the CompanyParent, no other party to any Galleria Material Contract is in breach of or default thereunder, in each case in any respect that would reasonably be expected to be, individually or in the aggregate, material to the Galleria Business.
(d) Subject to Section 5.23, Parent has made available to Acquiror a true and correct copy of each Galleria Material Contract (or, if such Contract intends to provide any such noticeis not in written form, a true and correct summary of the material terms thereof).
Appears in 1 contract
Contracts. (a) Except as set forth on Section 3.11 Schedule 2.24 of the Company Disclosure Schedule lists the following agreements (written or oral) to which (i) includes the Company or any amendment, supplement or modification to any Contract listed therein and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into pursuant to the terms of other Contracts listed therein), Company Subsidiaries is a party as of the date hereof, neither of this Agreement which do not exceed $25,000 in the Company nor any of its Subsidiaries is a party to or bound by any of the following Contracts that are Related to the Businessaggregate:
(i) any Contract with any staffing company, temporary employee agency, professional employer organization agreement (or other similar company group of related agreements) for the lease of personal property from or agencyto third parties;
(ii) any collective bargaining agreement (or similar Contract with an employee representative group of related agreements) for the purchase or labor group representing any Business Employeessale of products or for the furnishing or receipt of services;
(iii) any Contract relating to Indebtedness agreement establishing a partnership or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any of the Transferred Assets or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangementsjoint venture;
(iv) any (A) Contract agreement (or group of related Contractsagreements) relating to under which it has created, incurred, assumed or regarding Intellectual Property guaranteed (or may create, incur, assume or guarantee) indebtedness (Bincluding capitalized lease obligations) IT Asset Contract or under which it has imposed (excluding commercially availableor may impose) a Security Interest on any of its assets, off-the-shelf Software with a replacement cost tangible or an annual license fee of less than $50,000 in the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregate)intangible;
(v) any Contract which prohibits the Company or any of its Subsidiaries from competing or otherwise freely engaging in the Business as currently conducted anywhere in the world agreement that purports to limit in any material respect or that otherwise restricts any activities the right of the Company or any of its the Company Subsidiaries with respect to the Business as currently conducted engage in any material respectline of business, or to compete with any person or operate in any geographical location;
(vi) any Contract for the sale of Products employment or services, in each case, containing “most-favored nation” pricing terms or any exclusive dealing arrangement or any “requirements” Contractconsulting agreement;
(vii) any Shared Contractagreement involving any current or former officer, director or stockholder of the Company or any Affiliate thereof;
(viii) any Contract with any agreement under which the consequences of a default or termination would reasonably be expected to have a Company Material Customer or Material Supplier (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditions), and any other Contract which involves the payment by or to, performance of services by or for, or the delivery of goods by or to, or capital expenditures by, the Company in excess of $750,000 in the aggregate over the shorter of: (A) the term of such Contract or (B) the 2019 calendar yearAdverse Effect;
(Aix) any Contract relating agreement which contains any provisions requiring the Company or any of the Company Subsidiaries to ownership indemnify any other party thereto (excluding indemnities contained in agreements for the purchase, sale or license of or investments products entered into in any business or enterprise and (B) partnership, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar Contract; andthe Ordinary Course of Business);
(x) any Contract other agreement (or group of related agreements) either involving a Governmental Entity.more than $25,000 or not entered into in the Ordinary Course of Business; and
(bxi) Each Assumed Contract any agreement, other than as contemplated by this Agreement and each Contract disclosed or required the Transfer, relating to be disclosed on Section 3.11 the sales of securities of the Disclosure Schedule Company or any of the Company Subsidiaries to which the Company or such Company Subsidiary is a legal, valid and binding obligation of the Company, and, to the Knowledge of the Company, each other party to such Contract, and is enforceable against the Company, and, to the Knowledge of the Company, each such other party in accordance with its terms subject, in each case, to the effect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and neither the Company nor, to the Knowledge of the Company, any other party to such Contract is in material default or material breach of such Contract, and, to the Knowledge of the Company, there does not exist any event, condition or omission that would constitute such a material default or material breach (whether by lapse of time or notice or both) under any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1, 2018, the Company has not received any written notice of termination or nonrenewal with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge of the Company, no other party to any such Contract intends to provide any such noticeparty.
Appears in 1 contract
Contracts. (a) Set forth in Section 3.14(a) of the Company Disclosure Schedule is a list, as of the date of this Agreement, of (i) 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 (ii) each of the following to which the Company or any of its Subsidiaries is a party or otherwise bound:
(A) any Contract that contains a non-competition provision or that otherwise purports to limit, curtail or restrict the ability of the Company or any of its Subsidiaries (or, after the Effective Time, Parent or any of its Affiliates) to solicit customers, compete in any geographic area or line of business or restrict the Persons to whom the Company or any of its Subsidiaries may sell products or deliver services,
(B) any Contract that grants any third party “most favored nation” status or the exclusive right to deal with the Company or any of its Subsidiaries,
(C) any partnership or joint venture agreement,
(D) any Government Contract,
(E) any Contract with any director or officer of the Company or any of its Subsidiaries or any Affiliate of the Company (except for Contracts listed on Section 3.14(a)(J) of the Company Disclosure Schedule),
(F) any loan or credit agreement, mortgage, indenture, note or other Contract or instrument evidencing Indebtedness of the Company or any of its Subsidiaries,
(G) any mortgage, pledge, security agreement, deed of trust or other Contract granting a Lien on any property or assets of the Company or any of its Subsidiaries,
(H) any customer or client Contract that involves total consideration of in excess of $50,000 annually,
(I) any Contract pursuant to which the Company or any of its Subsidiaries (x) is granted a license to use any Company Intellectual Property from third parties (excluding Contracts pertaining to unmodified, commercially available Software pursuant to a click-wrap, shrink-wrap or similar agreement and which is licensed to the Company or the relevant Subsidiary that is not material to the functionality of any currently licensed or supported Company Products) or (y) has granted a license to any Person under any Intellectual Property (other than nonexclusive object code licenses granted to customers in the ordinary course of business of the Company and its Subsidiaries consistent with past practice),
(J) any Contract which is an employment agreement with an executive officer or employee with an annual base salary of $100,000 or more or which includes a change-in-control provision,
(K) any Contract which is a collective bargaining agreement or similar agreement with any labor union or association representing employees of the Company or any of its Subsidiaries,
(L) any Contract which is a lease, whether as a lessor or lessee, with respect to any real property that involves payments to or from the Company in excess of $50,000 annually,
(M) any Contract which is an agreement for any development, marketing, resale, distribution or similar arrangement relating to any Company Product involving payments to or from the Company in excess of $50,000,
(N) which is a contract, agreement or arrangement (other than pursuant to Company Charter Documents) providing for indemnification by the Company of any officer, director or employee of the Company, (O) any Contract other than endorsements of checks, which is a contract, agreement or arrangement pursuant to which the Company or any of its Subsidiaries has any obligations or liabilities as guarantor, surety, co-signer, endorser or co-maker in respect of any obligation of any Person, or any capital maintenance, keep well or similar agreements or arrangements,
(P) any Contract which is a contract, agreement or arrangement that prohibits the payment of dividends or distribution in respect of the capital stock of the Company or any of its Subsidiaries, prohibits the pledging of the capital stock of the Company or any of its Subsidiaries or prohibits the issuance of guarantees by any of the Company’s Subsidiaries,
(Q) any Contract which is a contract, agreement or arrangement relating to any acquisition of another business or assets by the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries has continuing indemnification, “earn out” or other contingent payment or guarantee obligations,
(R) any Contract which is a contract, agreement or arrangement that involves any exchange-traded or over-the-counter swap, forward, future, option, cap, floor or collar financial contract, or any other interest-rate, commodity price, equity value or foreign currency protection contract, (S) any Contract which contains an agreement by the Company or any of its Subsidiaries to provide any Person with access to the source code for any material Software owned by the Company or any of its Subsidiaries and embodied in any currently licensed or supported Company Products or to provide for the source code for any Company Products to be put in escrow, and
(T) any Contract pursuant to which the Company or any of its Subsidiaries obtains co-location or hosting services in connection with the hosted Company Products involving payments from the Company or any of its Subsidiaries. The Contracts and other documents required to be listed on Section 3.13(i) and Section 3.14(a) of the Company Disclosure Schedule are referred to herein as “Company Material Contracts”. The Company has prior to the date of this Agreement made available to Parent correct and complete copies of each Company Material Contract in existence as of the date of this Agreement, together with any and all amendments and supplements thereto.
(b) Except as set forth on in Section 3.11 3.14(b)(1) of the Company Disclosure Schedule (which Schedule: (i) includes any amendmenteach Company Material Contract is valid, supplement or modification binding and in full force and effect and is enforceable in accordance with its terms by the Company and its Subsidiaries party thereto, subject to any Contract listed therein the Bankruptcy and Equity Exception; (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into pursuant to the terms of other Contracts listed therein), as of the date hereof, neither the Company nor any of its Subsidiaries is a party to or bound by in default under any of the following Contracts that are Related to the Business:
(i) any Contract with any staffing company, temporary employee agency, professional employer organization or other similar company or agency;
(ii) any collective bargaining agreement or similar Contract with an employee representative or labor group representing any Business Employees;
(iii) any Contract relating to Indebtedness or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any of the Transferred Assets or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangements;
(iv) any (A) Contract (or group of related Contracts) relating to or regarding Intellectual Property or (B) IT Asset Contract (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee of less than $50,000 in the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregate);
(v) any Contract which prohibits the Company or any of its Subsidiaries from competing or otherwise freely engaging in the Business as currently conducted anywhere in the world in any material respect or that otherwise restricts any activities of the Company or any of its Subsidiaries with respect to the Business as currently conducted in any material respect;
(vi) any Contract for the sale of Products or services, in each case, containing “most-favored nation” pricing terms or any exclusive dealing arrangement or any “requirements” Contract;
(vii) any Shared Contract;
(viii) any Contract with any Material Customer or Material Supplier (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditions), and any other Contract which involves the payment by or to, performance of services by or for, or the delivery of goods by or to, or capital expenditures by, the Company in excess of $750,000 in the aggregate over the shorter of: (A) the term of such Contract or (B) the 2019 calendar year;
(A) any Contract relating to ownership of or investments in any business or enterprise and (B) partnership, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar Contract; and
(x) any Contract involving a Governmental Entity.
(b) Each Assumed Contract and each Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule is a legal, valid and binding obligation of the Company, and, to the Knowledge of the Company, each other party to such Contract, and is enforceable against the Companynor does any condition exist that, and, to the Knowledge of the Company, each such other party in accordance with its terms subject, in each case, to the effect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance notice or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and neither the Company nor, to the Knowledge of the Company, any other party to such Contract is in material default or material breach of such Contract, and, to the Knowledge of the Company, there does not exist any event, condition or omission that would constitute such a material default or material breach (whether by lapse of time or notice or both) under any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1, 2018, would constitute a default thereunder by the Company has not received any written notice of termination or nonrenewal with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, and its Subsidiaries party thereto; (iii) to the Knowledge of the Company, no other party to any such Company Material Contract intends to provide is in default thereunder, nor does any condition exist that with notice or lapse of time or both would constitute a default by any such noticeother party thereunder; and (iv) neither the Company nor any of its Subsidiaries has received any notice of termination or cancellation under any Company Material Contract, received any written notice of breach or default under any Company Material Contract which breach or default has not been cured. Except as set forth in Section 3.14(b)(2) of the Company Disclosure Schedule, no approval, consent or waiver of or notice to any Person is needed in order that any Company Material Contract continue in full force and effect following the consummation of the Transactions.
Appears in 1 contract
Sources: Merger Agreement (SmartPros Ltd.)
Contracts. (a) Except as set forth on Section 3.11 Schedule 5.14(a) of the Company Disclosure Schedule Schedules lists all material Contracts, oral or written (collectively, the “Material Contracts”) to which (i) includes any amendment, supplement or modification to any Contract listed therein and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into pursuant to the terms of other Contracts listed therein), as of the date hereof, neither the Company nor or any of its Subsidiaries Subsidiary is a party to or bound by any of and which are currently in effect and constitute the following Contracts that are Related to the Businessfollowing:
(i) any Contract all Contracts that require annual payments or expenses by, or annual payments or income to, the Company of $1,000,000 or more (other than standard purchase and sale orders entered into in the ordinary course of business consistent with any staffing company, temporary employee agency, professional employer organization or other similar company or agencypast practice);
(ii) any collective bargaining agreement all sales, advertising, agency, lobbying, broker, sales promotion, market research, marketing or similar Contract with an employee representative or labor group representing contracts and agreements, in each case requiring the payment of any Business Employeescommissions by the Company in excess of $500,000 annually;
(iii) all employment Contracts, employee leasing Contracts, and consultant and sales representatives Contracts with any Contract relating to Indebtedness current or to mortgagingformer officer, pledging director, employee or otherwise placing a Lien consultant of the Company or any Subsidiary or other Person, under which the Company (A) has continuing obligations for payment of annual compensation of at least $300,000 (other than oral arrangements for at-will employment), (B) has material severance or post termination obligations to such Person (other than COBRA obligations), or (C) has an obligation to make a Permitted Lien) on any payment upon consummation of the Transferred Assets transactions contemplated hereby or letter as a result of credit arrangements, surety or performance bonds, guarantee, support or similar arrangementsa change of control of the Company;
(iv) any (A) Contract (or group of related Contracts) relating all Contracts creating a joint venture, strategic alliance, limited liability company and partnership agreements to or regarding Intellectual Property or (B) IT Asset Contract (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee of less than $50,000 in the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregate)or any Subsidiary is a party;
(v) all Contracts relating to any Contract acquisitions or dispositions of assets by the Company in excess of $1,000,000;
(vi) all Contracts for material licensing agreements, including Contracts licensing Intellectual Property Rights, other than (i) “shrink wrap” licenses, and (ii) non-exclusive licenses granted in the ordinary course of business;
(vii) Contracts (i) under which prohibits the Company or any of its Subsidiaries from competing is currently: (A) licensing or otherwise freely engaging providing the right to use to any third party any Owned Intellectual Property, or (B) licensing or otherwise receiving the right to use from any third party any material Intellectual Property, with the exception of (1) non-exclusive licenses and subscriptions to commercially available software or technology used for internal use by the Company, with a dollar value individually not in excess of $150,000, (2) any Contract related to open source software, or (3) any Contract under which the Company licenses any of its Intellectual Property in the Business as currently conducted anywhere in the world in any material respect or that otherwise restricts any activities of Ordinary Course, and (ii) under which the Company or any of its Subsidiaries has entered into an agreement not to assert or sue with respect to the Business as currently conducted in any material respect;
(vi) any Contract for the sale of Products or services, in each case, containing “most-favored nation” pricing terms or any exclusive dealing arrangement or any “requirements” Contract;
(vii) any Shared ContractIntellectual Property;
(viii) all Contracts relating to material secrecy, confidentiality and nondisclosure agreements substantially limiting the freedom of the Company or any Contract Subsidiary to compete in any line of business or with any Material Customer Person or Material Supplier in any geographic area;
(excluding ordinary course task orders or ix) all Contracts relating to material patents, trademarks, service estimates containing terms marks, trade names, brands, copyrights, trade secrets and conditions materially consistent with other material Intellectual Property Rights of the Company’s standard terms ;
(x) all Contracts providing for material guarantees, indemnification arrangements and conditions), and any other Contract which involves the payment hold harmless arrangements made or provided by or to, performance of services by or for, or the delivery of goods by or to, or capital expenditures by, the Company or any Subsidiary, including all ongoing agreements for repair, warranty, maintenance, service, indemnification or similar obligations;
(xi) all Contracts with or pertaining to the Company or any Subsidiary to which any Shareholder is a party;
(xii) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company or any Subsidiary holds a leasehold interest (including the Leases) and which involve payments to the lessor thereunder in excess of $750,000 in the aggregate over the shorter of: (A) the term of such Contract or (B) the 2019 calendar year10,000 per month;
(Axiii) all Contracts relating to outstanding Indebtedness, including financial instruments of indenture or security instruments (typically interest-bearing) such as notes, mortgages, loans and lines of credit, except any such Contract with an aggregate outstanding principal amount not exceeding $500,000;
(xiv) any Contract relating to ownership the voting or control of the equity interests of the Company or investments in any business or enterprise and (B) partnership, joint venture, co-owner, limited liability company collaboration or strategic alliance the election of directors of the Company or other similar ContractSubsidiary (other than the Organizational Documents of the Company);
(xv) any Contract that can be terminated, or the provisions of which are altered, as a result of the consummation of the transactions contemplated by this Agreement or any of the Additional Agreements to which the Company or any Subsidiary is a party;
(xvi) any Contract relating to the Business and not otherwise described in this Section 5.14(a), if it involves an amount in excess of $2,000,000, it being understood that this clause applies only to metals and other trading contracts entered into on or after January 1,2023; and
(xxvii) any Contract involving for which any of the benefits, compensation or payments (or the vesting thereof) with respect to a Governmental EntityShareholder, or with respect to a director, officer, employee or consultant of the Company or any Subsidiary will be increased or accelerated by the consummation of the transactions contemplated hereby or the amount or value thereof will be calculated on the basis of any of the transactions contemplated by this Agreement.
(b) Each Assumed Except for any Material Contract and each Contract disclosed that has terminated or required to be disclosed on Section 3.11 will terminate upon the expiration of the stated term thereof prior to the Closing Date, and except as set forth on Schedule 5.14(b) of the Company Disclosure Schedule Schedules, (i) each Material Contract is a legal, valid and binding obligation of the Company, and, to the Knowledge of the Company, each other party to such Contractagreement, and is enforceable against the Company, and, to the Knowledge of the Company, each such other party in accordance with its terms subject, in each case, to the effect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally full force and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law)effect, and neither the Company or any Subsidiary nor, to the Knowledge of the Company’s knowledge, any other party to such Contract thereto, is in material breach or default or material breach of such Contract, and, to the Knowledge of the Company, there does not exist any event, condition or omission that would constitute such a material default or material breach (whether by lapse with or without the passage of time or the giving of notice or both) under the terms of any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1such Material Contract, 2018, (ii) the Company and each Subsidiary has not received assigned, delegated, or otherwise transferred any written notice of termination its rights or nonrenewal obligations with respect to any Assumed Contract Material Contract, or granted any Contract disclosed power of attorney with respect thereto or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge any of the Company’s or any Subsidiary’s assets, (iii) no Material Contract (A) requires the Company or any Subsidiary to post a bond or deliver any other form of security or payment to secure its obligations thereunder or (B) imposes any non-competition covenants that may be binding on, or restrict the Business or require any payments by or with respect to the Company or any of its Affiliates. The Company has previously provided to the Parent Parties true and correct fully executed copies of each written Material Contract.
(c) Except as set forth on Schedule 5.14(c) of the Company Disclosure Schedules, none of the execution, delivery or performance by the Company of this Agreement or Additional Agreements to which the Company is a party or the consummation by the Company of the transactions contemplated hereby or thereby constitutes a default under or gives rise to any such Contract intends right of termination, cancellation or acceleration of any obligation of the Company or any Subsidiary or to provide a loss of any such noticematerial benefit to which the Company or any Subsidiary is entitled under any provision of any Material Contract.
(d) Except as set forth on Schedule 5.14(d) of the Company Disclosure Schedules, the Company is in compliance with all material covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or agreements evidencing any Indebtedness.
Appears in 1 contract
Sources: Merger Agreement (HHG Capital Corp)
Contracts. (a) Section 5.15(a) of the Disclosure Schedule lists the following (collectively, the “Material Contracts”):
(i) all Contracts to which any Acquired Company is a party (excluding purchase orders that have been performed in all respects and for which there are no further liabilities or obligations outstanding) that are with customers, suppliers, or vendors providing for aggregate or annual expenditures or receipts or payments by such Acquired Company of $100,000 or more, except any Contracts with customers that have been performed in all respects and for which there are only warranty obligations outstanding;
(ii) all Contracts to which an Acquired Company is a party relating to Indebtedness of such Acquired Company;
(iii) all Contracts to which an Acquired Company is a party relating to employment or compensation of any salaried (rather than hourly-based) Employee or containing any change-in-control or severance payment obligations;
(iv) all Contracts to which an Acquired Company is a party that are with independent contractors or consultants providing for annualized remuneration in excess of (or that is reasonably expected to be in excess of) $100,000;
(v) all agency, marketing, and advertising Contracts to which an Acquired Company is a party;
(vi) all Contracts to which an Acquired Company is a party relating to equity grants, or equity options;
(vii) all lease agreements (whether of real or personal property) to which an Acquired Company is a party providing for annual rentals in excess of $100,000;
(viii) all Contracts to which an Acquired Company is a party that is with any Affiliate of such Acquired Company;
(ix) all Contracts to which an Acquired Company is a party restricting the ability of such Acquired Company to engage in any line of business or to compete with any Person;
(x) all Contracts to which an Acquired Company is a party that provide for the indemnification by such Acquired Company of any current or former director or officer of such Acquired Company;
(xi) all Contracts to which an Acquired Company is a party that relate to the acquisition or disposition of any business, a material amount of stock or assets (in the case of assets, other than the acquisition or disposition of inventory in the Ordinary Course of Business) of any other Person, or any real property (whether by merger, sale of stock, sale of assets, or otherwise);
(xii) all Contracts to which an Acquired Company is a party that are with any Governmental Authority;
(xiii) all Contracts to which an Acquired Company is a party that provide for any joint venture, partnership, or similar arrangement; and
(xiv) all other Contracts to which an Acquired Company is a party that are not made in the Ordinary Course of Business or that are material to the Acquired Companies taken as a whole.
(b) Except as set forth on in Section 3.11 5.15(b) of the Disclosure Schedule (which (i) includes any amendmentSchedule, supplement or modification to any Contract listed therein and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into pursuant to the terms of other Contracts listed therein), as each of the date hereofMaterial Contracts is in full force and effect, neither the Company nor any of its Subsidiaries is a party to or bound by any of the following Contracts that are Related to the Business:
(i) any Contract with any staffing company, temporary employee agency, professional employer organization or other similar company or agency;
(ii) any collective bargaining agreement or similar Contract with an employee representative or labor group representing any Business Employees;
(iii) any Contract relating to Indebtedness or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any of the Transferred Assets or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangements;
(iv) any (A) Contract (or group of related Contracts) relating to or regarding Intellectual Property or (B) IT Asset Contract (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee of less than $50,000 in the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregate);
(v) any Contract which prohibits the Company or any of its Subsidiaries from competing or otherwise freely engaging in the Business as currently conducted anywhere in the world in any material respect or that otherwise restricts any activities of the Company or any of its Subsidiaries with respect to the Business as currently conducted in any material respect;
(vi) any Contract for the sale of Products or services, in each case, containing “most-favored nation” pricing terms or any exclusive dealing arrangement or any “requirements” Contract;
(vii) any Shared Contract;
(viii) any Contract with any Material Customer or Material Supplier (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditions), and any other Contract which involves the payment by or to, performance of services by or for, or the delivery of goods by or to, or capital expenditures by, the Company in excess of $750,000 in the aggregate over the shorter of: (A) the term of such Contract or (B) the 2019 calendar year;
(A) any Contract relating to ownership of or investments in any business or enterprise and (B) partnership, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar Contract; and
(x) any Contract involving a Governmental Entity.
(b) Each Assumed Contract and each Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule is a legal, valid and binding obligation of the applicable Acquired Company, and, to the Knowledge of the Company, each other party to such Contract, and is enforceable against the Company, and, to the Knowledge of the Company, each such other party in accordance with its terms subject(except as may be limited by applicable bankruptcy, in each case, to the effect of any applicable Laws relating to bankruptcyinsolvency, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or and other similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity (regardless equity). Except as set forth in Section 5.15(b) of whether such enforceability is considered in a proceeding in equity or at law)the Disclosure Schedule, and neither the Company no Acquired Company, nor, to the Knowledge of the CompanySellers, any other party to such Contract thereto, is in material default breach of, or material breach default under, or has provided or received any written notice of such any intention to terminate, any Material Contract, and. Except as set forth in Section 5.15(b) of the Disclosure Schedule, to the Knowledge of the CompanySellers, there does not exist any eventno event or circumstance has occurred that, condition with notice or omission that would constitute such a material default or material breach (whether by lapse of time or notice or both, would (i) constitute an event of default under any Assumed Material Contract or (ii) cause or permit the acceleration of any Contract disclosed material obligation, or required to be disclosed on Section 3.11 the loss of any material benefit, of the Disclosure ScheduleAcquired Company thereunder, or result in any Acquired Company becoming liable for any liquidated or other damages. Since January 1Complete and correct copies of each Material Contract (including all material modifications, 2018amendments, the Company has not received any written notice of termination or nonrenewal with respect and supplements thereto and waivers thereunder) have been made available to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge of the Company, no other party to any such Contract intends to provide any such noticeBuyers.
Appears in 1 contract
Sources: Securities Purchase Agreement (Global Power Equipment Group Inc.)
Contracts. (a) Except as set forth on Section 3.11 Part 2.10 of the Disclosure Schedule (which (i) includes any amendmentidentifies each Company Contract that constitutes a “Material Contract.” For purposes of this Agreement, supplement or modification to any Contract listed therein and (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into pursuant to the terms of other Contracts listed therein), as of the date hereof, neither the Company nor any of its Subsidiaries is a party to or bound by any each of the following Contracts that are Related shall be deemed to the Businessconstitute a “Material Contract”:
(i) any Company Contract with (A) governing the employment of, or the performance of services by, any staffing companyemployee, temporary consultant or independent contractor, (B) pursuant to which the Company is or may become obligated to make any severance, termination or similar payment to any current or former employee agencyor director in excess of $25,000, professional employer organization or (C) pursuant to which the Company is or may become obligated to make any bonus or similar payment (other similar company than payments constituting base salary) in excess of $25,000 to any current or agencyformer employee or director;
(ii) any collective bargaining agreement Company Contract of the type required to be identified in Part 2.9 of the Disclosure Schedule (except for any Contract pursuant to which (A) any Intellectual Property or similar Contract with an employee representative Intellectual Property Right is licensed to the Company under any third party “shrink-wrap” or labor group representing “click through” software license generally available to the public, or (B) any Business EmployeesIntellectual Property or Intellectual Property Right is licensed by the Company to any Person on a non-exclusive basis);
(iii) any Company Contract relating to Indebtedness or to mortgagingcontaining any source code escrow release, pledging or otherwise placing a Lien (other than a Permitted Lien) on any of the Transferred Assets or letter of credit arrangements, surety or performance bonds, guarantee, support source code custody or similar arrangementsprovision;
(iv) any (A) Company Contract (that provides for indemnification of any officer, director, employee or group agent of related Contracts) relating to or regarding Intellectual Property or (B) IT Asset Contract (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee of less than $50,000 in the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregate)Company;
(v) any Company Contract which prohibits the Company or any of its Subsidiaries from competing or otherwise freely engaging in the Business as currently conducted anywhere in the world in imposing any material respect or that otherwise restricts any activities restriction on the right of the Company (A) to compete with any other Person, (B) to acquire any product or other asset or any of its Subsidiaries with respect 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 the Business as currently conducted in any material respectCompany’s business;
(vi) any Company Contract creating or providing for the sale of Products or servicesany sales agency relationship, in each case, containing “most-favored nation” pricing terms or any exclusive dealing distribution arrangement or any “requirements” Contractfranchise relationship;
(vii) any Shared ContractCompany Contract (other than Contracts evidencing Company Options) (A) containing any restrictions on voting of the Company’s equity securities, granting any registration rights to Company equity securities or that restrict the sale or transfer of any of the Company’s equity securities which will survive the closing of the transactions contemplated by this Agreement, (B) providing any Person with any preemptive right, right of participation or right of maintenance with respect to any of the Company’s equity securities which will survive the closing of the transactions contemplated by this Agreement, or (C) providing the Company with any right of first refusal with respect to, or right to repurchase or redeem, any of the Company’s equity securities which will survive the closing of the transactions contemplated by this Agreement;
(viii) any Company Contract creating any material Encumbrance with respect to any Material Customer material asset of the Company other than Contracts entered into in the Ordinary Course of Business;
(ix) any Company Contract creating any guaranty, any warranty, any pledge, any performance or Material Supplier completion bond or any indemnity, except for Contracts substantially similar to the standard forms of end-user licenses previously delivered by the Company to Parent or its legal counsel;
(excluding ordinary course task orders x) any currency hedging Company Contract;
(xi) any Company Contract creating any partnership or service estimates joint venture which includes the sharing of revenues, profits, losses, costs or liabilities;
(xii) any Company Contract other than Contracts entered into in the Ordinary Course of Business (A) imposing any confidentiality obligation on the Company, (B) containing terms and conditions materially consistent with a Standstill Provision, or (C) providing any right of first negotiation or right of first refusal to any Person for any of the Company’s standard terms and conditions), and assets or securities;
(xiii) each Company Contract providing for the purchase or sale of any material product or other Contract which involves the payment material asset by or to, or the performance of any significant services by or for, or any Related Party (as defined in Section 2.18);
(xiv) any Company Contract that has a term of more than one year (taking into account any evergreen clause contained in such Company Contract) and that can not be terminated by the Company (without significant penalty) within 90 days after the delivery of goods a termination notice by the Company;
(xv) any Company Contract entered into outside the Ordinary Course of Business that requires the payment or to, delivery of cash or capital expenditures by, the Company other consideration in an amount or having a value in excess of $750,000 50,000 in the aggregate over aggregate, or requires the shorter of: performance of services having a value in excess of $50,000 in the aggregate; and
(Axvi) the term any other Company Contract, if a breach of such Contract or (B) the 2019 calendar year;
(A) any termination of such Contract relating could reasonably be expected to ownership have or result in a Company Material Adverse Effect. The Company has delivered to Parent or its legal counsel an accurate and complete copy of or investments in any business or enterprise and (B) partnership, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar each Company Contract that constitutes a Material Contract; and
(x) any Contract involving a Governmental Entity.
(b) Each Assumed Contract and each Contract disclosed or required to be disclosed on Section 3.11 Except as set forth in Part 2.10(b) of the Disclosure Schedule and except for Contracts that have otherwise terminated, each Company Contract that constitutes a Material Contract is a legal, valid and binding obligation of the Company, and, to the Knowledge of the Company, each other party to such Contractin full force and effect, and is enforceable against the Company, and, to the Knowledge of the Company, each such other party in accordance with its terms subjectterms, in each case, subject to the effect (i) laws of any applicable Laws general application relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally insolvency and subject, as to enforceability, to the effect relief of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law)debtors, and neither (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.
(c) Except as set forth in Part 2.10(c) of the Disclosure Schedule: (i) the Company norhas not committed any material violation, to the Knowledge of the Companybreach or default under, any other party to such Contract is in material default or material breach of such Material Contract, and, to the Knowledge of the Company, there does not exist no other Person has committed any eventmaterial violation, breach or default under, any Material Contract; (ii) to the Knowledge of the Company, no event has occurred, and no circumstance or condition exists as of the date of this Agreement, that (with or omission that would constitute such without notice or lapse of time) could reasonably be expected to (A) result in a material violation or breach of any of the provisions of any Material Contract, (B) give any Person the right to declare a default or material breach (whether by lapse of time or notice or both) exercise any remedy under any Assumed Material Contract involving more than $25,000 in value, (C) give any Person the right to receive or require a rebate, chargeback, penalty or change in delivery schedule under any Contract disclosed Material Contract, (D) give any Person the right to accelerate the maturity or required performance of any Material Contract, (E) result in the disclosure, release or delivery of any Company Source Code, or (F) give any Person the right to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1cancel, 2018, terminate or materially modify any Material Contract; (iii) the Company has not received any written notice or other communication (in writing) regarding any material violation or breach of, or material default under, any Material Contract; and (iv) the Company has not waived any of termination or nonrenewal with respect to its material rights under any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 Material Contract.
(d) The Company Contracts identified in Part 2.10 of the Disclosure Schedule and, to the Knowledge collectively constitute all of the Company, no other party Material Contracts necessary to any enable the Company to conduct its business in the manner in which such Contract intends to provide any such noticebusiness is being conducted on the date of this Agreement.
Appears in 1 contract
Contracts. (a) Except as set forth on Section 3.11 3.10 of the Disclosure Schedule (which (i) includes any amendment, supplement or modification to any Contract listed therein contains a complete and (ii) shall not include accurate list of the following Seller Contracts that are invoices, statements of work or purchase orders entered into pursuant to the terms of other Contracts listed therein), in effect as of the date hereof, neither the Company nor any of its Subsidiaries is a party to or bound by any of the following Contracts that are Related to the Businessthis Agreement:
(i) any Seller Contract with any staffing company, temporary employee agency, professional employer organization concerning confidentiality or other similar company non-competition or agency;
(ii) any collective bargaining agreement or similar Contract with an employee representative or labor group representing any Business Employees;
(iii) any Contract relating to Indebtedness or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any of the Transferred Assets or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangements;
(iv) any (A) Contract (or group of related Contracts) relating to or regarding Intellectual Property or (B) IT Asset Contract (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee of less than $50,000 in the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregate);
(v) any Contract which that expressly prohibits the Company or any of its Subsidiaries from competing or otherwise freely engaging in the Business as currently conducted business anywhere in the world world;
(ii) any Seller Contract in which the Company or any material respect Subsidiary has granted “exclusivity” or that otherwise restricts requires the Company or the Subsidiary to deal exclusively with, or grant exclusive rights or rights of first refusal to, any activities customer, vendor, supplier, distributor, contractor or other Person;
(iii) any Seller Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of the Product;
(iv) any settlement, conciliation, or similar agreement with any Governmental Authority that is primarily or exclusively related to the Product Assets;
(v) any Contract that contains a license of Product Owned Intellectual Property Assets from the Company or any of its Subsidiaries with respect to the Business as currently conducted in any material respectSubsidiaries;
(vi) any Contract for the sale of Products or services, in each case, containing “most-favored nation” pricing terms or any exclusive dealing arrangement or any “requirements” ContractGovernment Contracts;
(vii) any Shared Contract;all confidentiality and non-disclosure agreements that impose on the Company or its Subsidiaries obligations of confidentiality or in-disclosure regarding the Product which was not entered into in the Ordinary Course of Business; and
(viii) any Seller Contract with any Material Customer or Material Supplier (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with entered into outside of the Company’s standard terms and conditions), and any other Contract which involves the payment by or to, performance Ordinary Course of services by or for, or the delivery of goods by or to, or capital expenditures by, the Company in excess of $750,000 in the aggregate over the shorter of: (A) the term of such Contract or (B) the 2019 calendar year;
(A) any Contract relating to ownership of or investments in any business or enterprise and (B) partnership, joint venture, co-owner, limited liability company collaboration or strategic alliance or other similar Contract; and
(x) any Contract involving a Governmental EntityBusiness.
(b) Each Assumed Contract The Company has made available to Purchaser a complete and accurate copy of each Contract disclosed or required to be disclosed on written agreement listed in Section 3.11 3.10 of the Disclosure Schedule Schedule.
(c) Except as set forth in Section 3.10 of the Disclosure Schedule:
(i) each Acquired Contract is a legal, valid and binding obligation agreement of the Company or the applicable Subsidiary, enforceable against the Company or such Subsidiary in accordance with its terms (except to the extent that the enforceability of obligations and the availability of certain remedies thereunder are subject to and may be limited by general principles of equity or by bankruptcy, insolvency, reorganization, arrangement, fraudulent transfer, moratorium and other laws relating to or affecting creditors’ rights generally);
(ii) the Company or the applicable Subsidiary has fulfilled all obligations required pursuant to the Acquired Contracts to have been performed as of the date hereof by the Company or such Subsidiary on its part;
(iii) the Company or the applicable Subsidiary is not in material breach of or material default under any Acquired Contract, and no event has occurred that with the passage of time or giving of notice or both would constitute such a breach or default, result in a loss of material rights, result in the payment of any damages or penalties or result in the creation of any Encumbrance thereunder or pursuant thereto other than Permitted Encumbrances;
(iv) to the Knowledge of the Company, andno other Person party to any Acquired Contract has breached in any material respect any provision, or is in material default under, any Acquired Contract;
(v) the Company or the applicable Subsidiary has not, at any time since January 1, 2010, (A) given any written notice or other communication or (B) received any written notice or, to the Knowledge of the Company, each other party to such Contract, and is enforceable against the Company, and, to the Knowledge of the Company, each such other party in accordance with its terms subjectcommunication, in each casecase regarding any actual, to alleged or potential violation or breach of, or default under, any of the effect Acquired Contracts; and
(vi) there are no pending renegotiations of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally of the Acquired Contracts and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and neither the Company nor, to or the Knowledge of the Company, any other party to such Contract is in material default or material breach of such Contract, and, to the Knowledge of the Company, there does not exist any event, condition or omission that would constitute such a material default or material breach (whether by lapse of time or notice or both) under any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1, 2018, the Company applicable Subsidiary has not received any written notice of termination or nonrenewal with respect from any Person party to any Assumed Acquired Contract regarding the termination, cancellation or material change to the terms of, any such Acquired Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge of the Company, no other Person party to any such Acquired Contract intends to provide to, terminate, cancel or materially change the terms of, any such noticeAcquired Contract; and
(vii) with respect to the design, development, manufacture, marketing, sale, service or support of the Product, neither the Company nor any of its Subsidiaries relies upon or uses rights under any Seller Contract that has expired or been terminated.
Appears in 1 contract
Contracts. (a) Except for Contracts filed as set forth on exhibits to the Filed Company SEC Documents, Section 3.11 3.11(a) of the Company Disclosure Schedule Letter sets forth a correct and complete list, and the Company has made available to Parent correct and complete copies, of all Contracts (which (i) includes any amendmentincluding all material amendments, supplement modifications, extensions or modification to any Contract listed therein renewals with respect thereto, but excluding all names, terms and (ii) shall not include Contracts conditions that are invoices, statements of work or purchase orders entered into pursuant to have been redacted in compliance with the terms of other Contracts listed therein), each such Contract or with applicable Legal Requirements governing the sharing of information) to which the Company or any Company Subsidiary is a party as of the date hereofof this Agreement (collectively, neither the “Company nor any of its Subsidiaries is a party to or bound by any of the following Contracts that are Related to the Business:Contracts”):
(i) required to be filed as an exhibit to any Contract with any staffing company, temporary employee agency, professional employer organization or other similar company or agencyreport of the Company filed pursuant to the Exchange Act of the type described in Item 601(b) of Regulation S-K promulgated by the SEC;
(ii) that contain a covenant restricting the ability of the Company or any collective bargaining agreement Company Subsidiary to compete in any business or similar Contract with an employee representative any Person or labor group representing in any Business Employeesgeographic area;
(iii) with any Contract relating to Indebtedness or to mortgagingAffiliate of the Company, pledging or otherwise placing a Lien (other than a Permitted Lien) on those to which the only parties are the Company and any of the Transferred Assets or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangementswholly-owned Company Subsidiaries;
(iv) any which primarily relates to (A) Contract (the granting to the Company or group any Company Subsidiary of related Contracts) relating any IP License in or to or regarding any Company Intellectual Property owned by a third party, with annual license fees of more than $25,000, or (B) IT Asset Contract (the granting by the Company or any Company Subsidiary to a third party of any IP License in or to any Company Intellectual Property, with annual license fees of more than $25,000, excluding commercially available“click-wrap” or “shrink-wrap” agreements, agreements contained in or pertaining to “off-the-shelf Software with a replacement cost shelf” Software, or an annual license fee the terms of less than $50,000 in the aggregate use or service for which the Company has made less than $50,000 in customized improvements in the aggregate)any web site;
(v) any Contract which prohibits the Company or any of its Subsidiaries from competing or otherwise freely engaging in the Business as currently conducted anywhere in the world in relating to any material respect joint venture, partnership or that otherwise restricts 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 activities Indebtedness of the Company or any of its Subsidiaries with respect Company Subsidiary is outstanding or may be incurred or pursuant to which the Business as currently conducted in any material respect;
(vi) any Contract for the sale of Products or services, in each case, containing “most-favored nation” pricing terms Company or any exclusive dealing arrangement Company Subsidiary has guaranteed any Indebtedness of any other Person (other than the Company or any “requirements” Contract;
(vii) any Shared ContractCompany Subsidiary and excluding Company trade payables arising in the ordinary course of business);
(viii) any Contract with any Material Customer or Material Supplier (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with pursuant to which the Company’s standard terms and conditions), and any Company Subsidiary or any other Contract which involves party thereto has continuing obligations, rights or interests relating to the payment by research, development, clinical trial, distribution, supply, manufacture, marketing or co-promotion of, or collaboration with respect to, performance of services by any product or for, or the delivery of goods by or to, or capital expenditures by, product candidate for which the Company or any Company Subsidiary is currently engaged in excess of $750,000 in the aggregate over the shorter of: research or development, including manufacture or supply services or Contracts with contract research organizations for clinical trials-related services; and
(ix) which are to any extent executory and relate to (A) the term disposition or acquisition of such Contract any material assets or properties, other than dispositions or acquisitions in the ordinary course of business, or (B) the 2019 calendar year;
(A) any Contract relating to ownership of or investments in any business or enterprise and (B) partnership, joint venture, co-owner, limited liability company collaboration or strategic alliance merger or other similar Contract; and
(x) any Contract involving a Governmental Entitybusiness combination transaction.
(b) Each Assumed Company Contract and each Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule is a legal, valid and binding obligation on the Company and each Company Subsidiary which is party thereto 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, and the Company and each Company Subsidiary has performed all obligations required to be performed by it before the date hereof under each Company Contract and, to the Knowledge of the Company, each other party to such Contract, and is enforceable against the Company, and, to the Knowledge of the Company, each such other party in accordance with its terms subject, in each case, to the effect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and neither the Company nor, to the Knowledge of the Company, any other party to such Contract is in material default or material breach of such Contract, and, to the Knowledge of the Company, there does not exist any event, condition or omission that would constitute such a material default or material breach (whether by lapse of time or notice or both) under any Assumed Contract or any Contract disclosed or has performed all obligations required to be disclosed on Section 3.11 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 an allegation of the Disclosure Schedule. Since January 1, 2018, the material breach thereof.
(c) The Company has not received or enjoyed any written notice benefit, inducement or incentive from any Governmental Entity which will, as a result of termination this Agreement or nonrenewal with respect to any Assumed Contract the Transactions or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge cessation of the Company’s business operations in the geographic area where they are currently conducted or the termination of all or substantially all Company employees, no result in any clawback, recapture, recoupment, repayment obligation, penalty, Tax or other party to any such Contract intends to provide any such noticeliability.
Appears in 1 contract