Contracts. (a) Section 4.13(a) of the Seller’s Disclosure Schedules contains a complete and correct list of all of the following Contracts, in effect as of the date of this Agreement, to which a Transferred Entity is a party, is bound by or subject to, or pursuant to which the BGI Business is conducted (the “Specified Contracts”): (i) any Contract for the placement, distribution or sale of shares, units or other ownership interests of a Fund that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $5,000,000 in 2009; (ii) any administration agreement or any other Contract for the provision of administrative services that is reasonably expected to provide for payments to, or provide for payments from a Transferred Entity in 2009 in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or less; (iii) any Contract, other than a Benefit and Compensation Arrangement, that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $10,000,000 in 2009; (iv) any Contract prohibiting or materially restricting the ability of any Transferred Entity to conduct its business, to engage in any business or operate in any geographical area or to compete with any Person; (v) any Contract for any joint venture, strategic alliance, partnership or similar arrangement involving a sharing of profits or expenses or payments based on revenues, profits, or assets under management of any Affiliate of Parent or any Fund that is reasonably expected to account for revenue to the BGI Business in 2009 in excess of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be material to the Transferred Entities, taken as a whole; (vi) any Contract relating to any Indebtedness of a Transferred Entity in an amount in excess of $5,000,000, other than: (A) any mortgage or similar Indebtedness secured by specific property owned by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closing; (vii) any Contract (including any so-called take-or-pay or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any Transferred Entity in respect of the BGI Business that would reasonably be expected to be material to the Transferred Entities, taken as a whole, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person (other than any Transferred Entity) in each case in excess of $10,000,000; (viii) any Contract that provides for earn-outs or other similar contingent obligations that would reasonably be expected to result in annual payments in 2009 of $5,000,000 or more; (ix) any Contract entered into since January 1, 2007 for the acquisition or disposition of a Person or a division of a Person, or for the acquisition or sale of any assets (including Intellectual Property), properties, equity interests or rights, other than any such sale or acquisition in the ordinary course of business or any such sale or acquisition that would not reasonably be expected to be material to the Transferred Entities, taken as a whole; and (x) any BGI Affiliate Arrangement that will be in effect after the Closing. (b) Seller has made available to Buyer prior to the date of this Agreement a complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effect, and is valid and binding on the Transferred Entity that is a party thereto, and, to the Knowledge of Seller, on each other party thereto. There exists no breach or default of any Significant Contract on the part of any Transferred Entity which (with or without notice or lapse of time or both) would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole. (c) As of the date hereof, no Transferred Entity has entered into and is bound by or subject to any of the following: (i) other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practice, any Contract providing for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000; (ii) other than Contracts entered into in the ordinary course of business, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a whole; or (iii) other than Contracts entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individually. (d) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement. (e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements. (f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009. (g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard forms.
Appears in 4 contracts
Sources: Stock Purchase Agreement (Barclays Bank PLC /Eng/), Stock Purchase Agreement (BlackRock Inc.), Stock Purchase Agreement (Barclays Bank PLC /Eng/)
Contracts. (a) Except for this Agreement and each Contract filed as an exhibit to the Filed SEC Documents, Section 4.13(a4.16(a) of the Seller’s Company Disclosure Schedules contains Letter sets forth a complete and correct list of all of the following Contractslist, in effect as of the date of this Agreement, to which a Transferred Entity is a partyof all Material Contracts. For purposes of this Agreement, is bound by or subject to, or pursuant “Material Contract” means all Contracts to which the BGI Business Company or any of its Subsidiaries is conducted a party or by which the Company, any of its Subsidiaries, or any of their respective properties or assets is bound (the “Specified Contracts”):other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) that:
(i) any Contract for are or would be required to be filed by the placement, distribution or sale Company as a “material contract” pursuant to Item 601(b)(10) of shares, units or other ownership interests of a Fund that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $5,000,000 in 2009Regulation S-K under the Securities Act;
(ii) any administration agreement relate to the formation or any other Contract for the provision management of administrative services that is reasonably expected to provide for payments to, or provide for payments from a Transferred Entity in 2009 in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or less;
(iii) any Contract, other than a Benefit and Compensation Arrangement, that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $10,000,000 in 2009;
(iv) any Contract prohibiting or materially restricting the ability of any Transferred Entity to conduct its business, to engage in any business or operate in any geographical area or to compete with any Person;
(v) any Contract for any joint venture, strategic alliance, partnership or similar arrangement involving a sharing of profits or expenses or payments based on revenues, profitspartnership, or assets under management of any Affiliate of Parent or any Fund other similar agreement that is reasonably expected to account for revenue to the BGI Business in 2009 in excess of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be material to the Transferred Entitiesbusiness of the Company and its Subsidiaries, taken as a whole;
(viiii) any Contract relating to any provide for Indebtedness of a Transferred Entity in the Company or any of its Subsidiaries having an outstanding or committed amount in excess of $5,000,000, other than: (A) any mortgage equal to or similar Indebtedness secured by specific property owned by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closing;
(vii) any Contract (including any so-called take-or-pay or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any Transferred Entity in respect of the BGI Business that would reasonably be expected to be material to the Transferred Entities, taken as a whole, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person (other than any Transferred Entity) in each case in excess of $10,000,000, other than any Indebtedness between or among any of the Company and any of its Subsidiaries;
(viiiiv) are any Contract that provides for earn-outs keepwell or other similar contingent agreement under which the Company or any of its Subsidiaries has directly guaranteed any liabilities or obligations that would reasonably be expected to result of another Person or under which another Person has directly guaranteed any liabilities or obligations of the Company or any of its Subsidiaries, in annual payments each case involving liabilities or obligations in 2009 excess of $5,000,000 10,000,000 (other than any contracts under which the Company or morea Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company);
(ixv) any Contract have been entered into since January 1, 2007 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the acquisition avoidance of doubt, acquisitions or disposition dispositions of a Person or a division of a Personinvestments made pursuant to the Investment Guidelines, or for the acquisition or sale of any assets (including Intellectual Property)supplies, products, properties, equity interests or rights, other than any such sale or acquisition assets in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company or any such sale of its Subsidiaries);
(vi) prohibit the payment of dividends or acquisition that would not distributions in respect of the shares or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Company;
(vii) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to a third Person or (y) a third Person to the Company or any of its Subsidiaries, in each case, for aggregate annual or one-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its Subsidiaries;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be material expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transferred Entities, taken as a whole; andTransactions or Parent’s ability to own and/or conduct the business of the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any BGI of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate Arrangement of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that will can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in effect after excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the Closingprovision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any of its Subsidiaries; or
(xiv) provide for the outsourcing of any material function or part of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreements.
(b) Seller has made available to Buyer prior to the date As of this Agreement a complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each , (i) Specified Contracteach Material Contract is valid and binding on the Company or any of its Subsidiaries, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis extent such Person is a party thereto, as applicable, and, to the Knowledge of the Company, each other party thereto, and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effect, except where the failure to be valid, binding, or in full force and is valid effect would not constitute a Material Adverse Effect, (ii) the Company and binding on the Transferred Entity that is a party theretoeach of its Subsidiaries, and, to the Knowledge of Sellerthe Company, on each any other party thereto. There exists no breach or default , has performed all obligations required to be performed by it under each Material Contract, except where such noncompliance would not constitute a Material Adverse Effect, (iii) neither the Company nor any of its Subsidiaries has received notice of the existence of any Significant Contract on the part of any Transferred Entity which (with event or without condition that constitutes, or, after notice or lapse of time or both, will constitute, a default on the part of the Company or any of its Subsidiaries under any Material Contract, except where such default would not constitute a Material Adverse Effect, and (iv) wouldthere are no events or conditions that constitute, individually or, after notice or in lapse of time or both, will constitute a default on the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability part of any Significant counterparty under such Material Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken except as would not constitute a wholeMaterial Adverse Effect.
(c) As of the date hereof, no Transferred Entity has entered into and is bound by or subject to any of the following:
(i) other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practice, any Contract providing for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000;
(ii) other than Contracts entered into in the ordinary course of business, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a whole; or
(iii) other than Contracts entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individually.
(d) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard forms.
Appears in 4 contracts
Sources: Merger Agreement (Aspen Insurance Holdings LTD), Merger Agreement (Aspen Insurance Holdings LTD), Merger Agreement (Aspen Insurance Holdings LTD)
Contracts. (a) Section 4.13(aSchedule 3.15(a) of the Seller Disclosure Schedule contains, with respect to each Specified Business, Seller’s Disclosure Schedules contains a complete and correct list of all of the following Contractsgood faith estimate, in effect as of the date hereof, of this Agreementthe number of Contracts (other than Programming Agreements, Franchises and Governmental Authorizations) to which a Transferred Entity is a Seller or any of its Affiliates or any of their respective Assets are party, is bound by or subject towhich are executory and are Related to such Specified Business. Such list represents Seller’s good faith estimate of the number of such Contracts in each of the categories set forth on Schedule 3.15(a) of the Seller Disclosure Schedule, and indicates as to each category, the number of such Contracts that (i) were entered into prior to the Petition Date, (ii) were entered into following the Petition Date or pursuant (iii) Relate to which any Specified Business and any other business of Seller or its Affiliates, including any part of the BGI Friendco Business.
(b) Except as set forth on Schedule 3.15(b) of the Seller Disclosure Schedule, none of the Contracts of Seller or any of its Affiliates Related to a Specified Business is conducted contains any of the following terms or provisions (the each such term or provision, a “Specified ContractsSpecial Term”):
(i) consideration payable or receivable by Seller or any Contract for the placement, distribution or sale of shares, units or other ownership interests of a Fund that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity its Affiliates in excess of $5,000,000 100,000 in 2009any twelve month period or in excess of $1,000,000 over the remaining term;
(ii) any administration agreement limitations on the freedom of Seller or any other Contract for of its Affiliates to compete in any line of business, with any Person or in any geographic area, and which would limit the provision freedom of administrative services that is reasonably expected Buyer or any of its Affiliates to provide for payments to, or provide for payments from a Transferred Entity in 2009 in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or lessdo so after the Closing Date if it were an Assigned Contract;
(iii) so-called “most favored nation” provisions or any Contract, similar provision requiring Seller or any of its Affiliates to offer a third party terms or concessions at least as favorable as those offered to one or more other than a Benefit and Compensation Arrangement, that is reasonably expected to provide for payments toparties, or provide for payments from, a Transferred Entity in excess which would require Buyer or any of $10,000,000 in 2009its Affiliates to do so after the Closing Date if it were an Assigned Contract;
(iv) any Contract prohibiting or materially restricting the ability of any Transferred Entity to conduct its business, to engage terms that do not reflect in any business or operate all material respects those that would be obtained in any geographical area or to compete with any Personarm’s length negotiations;
(v) any Contract for any joint venture, strategic alliance, partnership exclusivity provision or similar arrangement involving provision that requires the purchase of all or a sharing given portion of profits or expenses or payments based on revenues, profits, or assets under management of any Affiliate of Parent a party’s requirements or any Fund other similar provision that is reasonably expected to account for revenue to would, in each case, bind Buyer or its Affiliates after the BGI Business in 2009 in excess of $10,000,000 on Closing if it were an annual (or annualized) basis or that would reasonably be expected to be material to the Transferred Entities, taken as a wholeAssigned Contract;
(vi) any Contract relating terms for the benefit of any members of the Rigas family (except terms for the general benefit of holders of Equity Securities in Seller or any of its Affiliates), Seller, any Managed Cable Entity or any of its or their current or former Affiliates or associates (as defined in Rule 405 under the Securities Act), in each case that would continue to benefit any Indebtedness of a Transferred Entity in such Person after the Closing if it were an amount in excess of $5,000,000, other than: (A) any mortgage or similar Indebtedness secured by specific property owned by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the ClosingAssigned Contract;
(vii) any Contract (including any so-called take-or-pay or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations provision relating to the use by third parties of any Transferred Entity in respect of the BGI Business that would reasonably be expected Transferred Assets to be material to the Transferred Entitiesprovide telephone, taken as a whole, Internet or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities data services other than in Contracts with Subscribers of any Person (such services and other than any Transferred Entityunder the Contracts listed on Schedule 3.15(b)(vii) in each case in excess of $10,000,000;the Seller Disclosure Schedule; or
(viii) any Contract that provides for earn-outs or other similar contingent obligations that would reasonably be expected with respect to result in annual payments in 2009 of $5,000,000 or more;
(ix) any Contract entered into since January 1following the entry of the Confirmation Order, 2007 for any provision that directly or indirectly restricts (or imposes a penalty or loss of benefit upon) the acquisition assignment or disposition transfer of a Person the rights or a division of a Personobligations thereunder to Buyer, Friendco or for the acquisition or sale of any assets (including Intellectual Property), properties, equity interests or rights, other than any such sale or acquisition in the ordinary course of business or any such sale or acquisition that would not reasonably be expected to be material to the Transferred Entities, taken as a whole; and
(x) any BGI Affiliate Arrangement that will be in effect after the Closingtheir Affiliates.
(bc) Schedule 3.15(c) of the Seller has made available Disclosure Schedule contains a true and complete list, as of the date hereof, of all Contracts (other than Equipment Leases and Programming Agreements) to which Seller or any of its Affiliates or any of their respective Assets are party, bound or subject that Relate to more than one Specified Business or to both a Specified Business and any part of the Friendco Business.
(d) Subject to the entry of the Confirmation Order, all Assigned Contracts will be, when assumed by Seller and assigned to Buyer prior to hereunder and under the date of this Agreement a complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified ContractConfirmation Order, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effecteffect and will be enforceable against each party thereto in accordance with the express terms thereof and any violation, and is valid and binding on the Transferred Entity that is a party thereto, and, to the Knowledge of Seller, on each other party thereto. There exists no breach or default event of any Significant Contract on the part default, or alleged violation, breach or event of any Transferred Entity which (with default, or without event or condition that, after notice or lapse of time or both) would, would constitute a violation, breach or event of default thereunder on the part of Seller or any of its Affiliates existing prior to such assumption and assignment will be fully discharged and Buyer shall have no responsibility therefor except for any Assumed Cure Costs. To the Knowledge of Seller, no other party to any Contract of Seller or any of its Affiliates is in default, violation or breach of such Contract, and there are no disputes pending or threatened under any such Contract other than those defaults, violations, breaches and disputes that would not, individually or in the aggregate, reasonably be expected to be have a Material Adverse Effect. In the last five years, none of Seller or any of its Affiliates has made any material claim under any Contract pursuant to the Transferred Entities, taken as a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.
(c) As of the date hereof, no Transferred Entity has entered into and is bound by or subject to any of the following:
(i) other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practice, any Contract providing for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000;
(ii) other than Contracts entered into in the ordinary course of business, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a whole; or
(iii) other than Contracts entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individuallyCable Systems were acquired.
(d) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard forms.
Appears in 3 contracts
Sources: Asset Purchase Agreement (Time Warner Inc), Asset Purchase Agreement (Adelphia Communications Corp), Asset Purchase Agreement (Adelphia Communications Corp)
Contracts. (a) Section 4.13(aSchedule 3.08(a) of the Seller’s Disclosure Schedules contains a complete and correct list of all of the following Contractssets forth, in effect as of the date hereof, a true and complete list of this Agreementthe following Contracts related to the Business to which any of the LIN Companies or their Affiliates or, to which a Transferred Entity the Knowledge of Seller, WTGS TV, is a party, is bound by party or subject to, the Seller or pursuant to which its Affiliates will be a party immediately following the BGI Business is conducted (the “Specified Contracts”):Merger Closing:
(i) any Contract under which the aggregate payments or receipts for the placementpast twelve (12) months exceeded, distribution or sale of shares, units or other ownership interests of a Fund that for the following twelve (12) months is reasonably expected to provide for payments toexceed, or provide for payments from, a Transferred Entity in excess of $5,000,000 in 2009150,000;
(ii) any administration agreement Contract under which payments by or obligations of WTGS TV, the LIN Companies, the Seller or their Affiliates, relating to the Business, will be increased, accelerated or vested by the occurrence (whether alone or in conjunction with any other Contract for event) of any of the provision of administrative services that is reasonably expected to provide for payments totransactions contemplated by this Agreement, or provide for under which the value of the payments from by or obligations of WTGS TV, the LIN Companies, the Seller or their Affiliates, relating to the Business, will be calculated on the basis of any of the transactions contemplated by this Agreement, whether pursuant to a Transferred Entity change in 2009 in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days control or lessotherwise;
(iii) any Contract, other than a Benefit and Compensation Arrangement, contract for Program Rights that is reasonably expected to provide for involves cash payments to, or provide for payments from, a Transferred Entity cash receipts in excess of $10,000,000 in 2009100,000 over the remaining term of such contract;
(iv) any Contract prohibiting or materially restricting the ability of any Transferred Entity to conduct its business, to engage in any business or operate in any geographical area or to compete with any Personnetwork affiliation agreement;
(v) any Contract for retransmission consent agreement with any joint venture, strategic alliance, partnership or similar arrangement involving a sharing of profits or expenses or payments based on revenues, profits, or assets under management of any Affiliate of Parent or any Fund that is reasonably expected to account for revenue to MVPD with more than 10,000 subscribers in the BGI Business in 2009 in excess of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be material to the Transferred Entities, taken as a wholeStation’s Market;
(vi) any Contract relating that relates to an ownership interest in any Indebtedness of a Transferred Entity in an amount in excess of $5,000,000corporation, partnership, joint venture or other than: (A) any mortgage business enterprise or similar Indebtedness secured by specific property owned by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closingother entity;
(vii) any Contract (including any so-called take-or-pay or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any Transferred Entity in respect of the BGI Business that would reasonably be expected to be material to the Transferred Entities, taken as a whole, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person (other than any Transferred Entity) in each case in excess of $10,000,000Real Property Lease;
(viii) any Contract relating to the Business, that provides for earn-outs relates to the guarantee (whether absolute or contingent) by WTGS TV, the Seller or the LIN Companies of (x) the performance of any other similar contingent obligations that would reasonably be expected to result in annual payments in 2009 Person (other than their respective Affiliates) or (y) the whole or any part of $5,000,000 the Indebtedness or moreliabilities of any other Person (other than their respective Affiliates);
(ix) any Bargaining Agreement;
(x) any Contract that contains any power of attorney authorizing the incurrence of an obligation on the part of WTGS TV, the Seller, the LIN Companies relating to the Business;
(xi) any Contract that creates any partnership or joint venture or relates to the acquisition, issuance or transfer of any securities;
(xii) any Contract that relates to the borrowing or lending of money;
(xiii) any Contract that grants any Person an option or a right of first refusal, right of first offer or similar preferential right to purchase or acquire any Station Asset;
(xiv) any Contract involving the purchase or sale of Real Property that has not closed as of the date hereof;
(xv) any Contract entered into since after January 1, 2007 for 2013 relating to the acquisition or disposition of a Person any material portion of the Business (whether by merger, sale of stock, sale of assets or a division otherwise);
(xvi) any Contract involving construction, architecture, engineering or other agreements relating to uncompleted construction projects, in each case that involve payments in excess of a Person$100,000;
(xvii) any Contract involving compensation to any Transferred Employee (as defined in Section 8 hereof), or any Contract with an independent contractor or consultant engaged to perform services to the Business in excess of $100,000 per year (provided, however, that for the acquisition or sale purposes of any assets (including Intellectual Propertythis Section 3.8(a)(xiii), properties, equity interests the term Contract shall not include at-will Contracts that can be terminated upon 30 days’ notice without penalty or rights, additional payment);
(xviii) any Contract with a Governmental Authority (other than any such sale or acquisition in the ordinary course of business Contracts with Governmental Authorities as a customer) which imposes any material obligation or any such sale restriction on WTGS TV, the Seller, the LIN Companies or acquisition that would not reasonably be expected to be material their Affiliates as it relates to the Transferred Entities, taken as a wholeBusiness; and
(xxix) any BGI Affiliate Arrangement that will Contract relating to the use of a Station’s digital bit stream other than in connection with broadcast television services. The contracts, agreements and leases required to be in effect after disclosed pursuant to this Section 3.08(a) are collectively referred to herein as the Closing“Material Contracts”.
(b) Seller has made available to Buyer prior to Each of the date of this Agreement a complete and correct copy of each written Specified Contract (except in certain instances such Specified Material Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effecteffect and binding and enforceable upon the LIN Companies or their Affiliates, as applicable, and is valid will be immediately following the Merger Closing binding and binding on the Transferred Entity that is a party theretoenforceable upon Seller or its Affiliates, as applicable, and, to the Knowledge of Seller, on WTGS TV or the other parties thereto, subject in each case to applicable bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar Laws affecting or relating to enforcement of creditors’ rights generally and general principles of equity (regardless of whether enforcement is considered in a proceeding at law or in equity). Prior to the Merger Closing, the LIN Companies have, and following the Merger Closing, the Seller and its Affiliates have, and, to the Knowledge of Seller, WTGS TV has, performed their respective obligations under each of the Material Contracts in all material respects and are not in material default thereunder, and to the Knowledge of Seller, WTGS TV and no other party thereto. There exists no breach or default of any Significant Contract on the part of any Transferred Entity which (with or without notice or lapse of time or both) would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.
(c) As of the date hereof, no Transferred Entity has entered into and is bound by or subject to any of the following:
(i) other than investment management and distribution Material Contracts entered into is in the ordinary course of business consistent with past practice, any Contract providing for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000;
(ii) other than Contracts entered into in the ordinary course of business, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses default thereunder that in any such case would be material to the Transferred Entities, taken as a whole; or
(iii) other than Contracts entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individuallyrespect.
(d) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard forms.
Appears in 3 contracts
Sources: Asset Purchase Agreement (Mercury New Holdco, Inc.), Asset Purchase Agreement (LIN Media LLC), Asset Purchase Agreement (Media General Inc)
Contracts. (a) Section 4.13(aSECTION 4.13(A) of the Seller’s Company Disclosure Schedules contains a complete and correct list of Letter lists or describes all of the following Contracts, in effect to which the Company or any of its Subsidiaries is a party as of the date of this AgreementAgreement (collectively, to which a Transferred Entity is a party, is bound by or subject to, or pursuant to which the BGI Business is conducted (the “Specified Contracts”):
"COMPANY CONTRACTS"): (i) all agreements, contracts, leases or binding commitments, the performance of which may involve payment or receipt by the Company or any Contract for the placement, distribution or sale of shares, units or other ownership interests its Subsidiaries of a Fund that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity consideration in excess of $5,000,000 200,000 in 2009;
any twelve (12) month period; (ii) any administration indenture, mortgage, promissory note, loan agreement or any other Contract agreement or commitment for the provision borrowing of administrative services that money by the Company or any of its Subsidiaries; (iii) any lease, sublease or other agreement pursuant to which it is reasonably expected to provide for a lessee of or holds or operates any real or personal property owned by any third party requiring payments to, or provide for payments from a Transferred Entity in 2009 in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice 200,000 over the remaining term of 180 days or less;
(iii) any Contract, other than a Benefit and Compensation Arrangement, that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $10,000,000 in 2009;
the contract; (iv) any Contract prohibiting option or materially restricting the ability of other executory agreement or other agreement with remaining obligations thereunder to purchase or acquire any Transferred Entity to conduct its business, to engage interest in any business assets or operate in any geographical area or to compete with any Person;
(v) any Contract property for any joint venture, strategic alliance, partnership or similar arrangement involving a sharing of profits or expenses or payments based on revenues, profits, or assets under management of any Affiliate of Parent or any Fund that is reasonably expected to account for revenue to the BGI Business in 2009 in excess of more than $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be material to the Transferred Entities, taken as a whole;
(vi) any Contract relating to any Indebtedness of a Transferred Entity in an amount in excess of $5,000,000, other than: (A) any mortgage or similar Indebtedness secured by specific property owned by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closing;
(vii) any Contract (including any so-called take-or-pay or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any Transferred Entity in respect of the BGI Business that would reasonably be expected to be material to the Transferred Entities, taken as a whole, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person (200,000 other than any Transferred Entity) in each case in excess of $10,000,000;
(viii) any Contract that provides for earn-outs or other similar contingent obligations that would reasonably be expected to result in annual payments in 2009 of $5,000,000 or more;
(ix) any Contract entered into since January 1, 2007 for the acquisition or disposition of a Person or a division of a Person, or for the acquisition or sale of any assets (including Intellectual Property), properties, equity interests or rights, other than any such sale or acquisition in the ordinary course of business; (v) any option or other executory agreement or other agreement with remaining obligations thereunder to sell or dispose of any interest in assets or property for more than $200,000 other than in the ordinary course of business; (vi) any contract or agreement creating a joint venture or similar arrangement by which the assets, properties, rights, or business is materially affected; (vii) any guaranty, keepwell, makewhole or any such sale similar agreement of or acquisition that would not reasonably be expected to be material with respect to the Transferred Entities, taken as a wholeobligations of third parties involving in excess of $200,000; and
(viii) any agreement which restricts the Company from doing business anywhere in the world or limits the business in which it may engage; (ix) any agreement or arrangement under which the Company agrees to indemnify any person or to share Tax liability of any person; (x) any BGI Affiliate Arrangement that will be license of material Company Intellectual Property (as defined in effect after SECTION 4.15) (including use of the Closingname of the Company or any similar name) of or by the Company other than in the ordinary course of business; and (xi) any contract or agreement under which the Company has the obligation to issue or sell any security.
(b) Seller has made available to Buyer prior to the date of this Agreement a complete and correct copy of each written Specified Each Company Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effect, and is valid and binding on the Transferred Entity that is a party theretovalid, binding and enforceable obligation of the Company, and, to the Knowledge of Sellerthe Company, on of the other party or parties thereto (except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar Laws of general applicability relating to or affecting creditors' rights, or by general equity principles, including principles of commercial reasonableness, good faith and fair dealing), and to the Knowledge of the Company, each Company Contract is in full force and effect.
(c) Neither the Company nor, to the Knowledge of the Company any other party thereto. There exists no , is in breach of or default under any term of any Significant Company Contract on the part or has repudiated any term of any Transferred Entity which (with Company Contract, except for such breaches, defaults or without notice or lapse of time or both) wouldrepudiations that would not, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as have a whole. No Transferred Entity Company Material Adverse Effect.
(d) The Company has not received any written notice of an intention termination or cancellation with respect to terminate, not to renew or to challenge the validity or enforceability of any Significant Company Contract, and to the terminationKnowledge of the Company, failure no other party to renew a Company Contract plans to terminate or challenge of which wouldcancel any such agreement, except for such terminations and cancellations that would not, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as have a wholeCompany Material Adverse Effect.
(c) As of the date hereof, no Transferred Entity has entered into and is bound by or subject to any of the following:
(i) other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practice, any Contract providing for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000;
(ii) other than Contracts entered into in the ordinary course of business, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a whole; or
(iii) other than Contracts entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individually.
(d) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard forms.
Appears in 3 contracts
Sources: Acquisition Agreement (Lante Corp), Acquisition Agreement (Sbi & Co), Acquisition Agreement (Lante Corp)
Contracts. (ai) Except as listed on Section 4.13(a5.1(q) of the Seller’s Company Disclosure Schedules contains a complete and correct list of all Letter, none of the following Contracts, in effect Company or any of its Subsidiaries is a party to or bound by any Contract as of the date of this Agreement:
(A) that would be required to be filed by the Company with the SEC pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act that has not been so filed;
(B) (1) containing covenants of the Company or any of its Subsidiaries purporting to limit in any material respect any line of business, industry or geographical area in which the Company or its Subsidiaries may operate or limiting the right of the Company or any of its Subsidiaries to which compete with any Person or levying a Transferred Entity is a partyfine, is bound by charge or subject toother payment for doing so, or (2) limiting the right of the Company or any of its Subsidiaries pursuant to any “most favored nation” or “exclusivity” or “sole sourcing” provisions, in each case of the above other than (a) any such Contracts that may be cancelled without Liability to the Company or its Subsidiaries upon notice of 90 days or less or (b) where any such covenants or other provisions are not material to the Company or any of its Subsidiaries;
(C) that would be required to be disclosed by Section 404(a) of Regulation S-K under the Exchange Act;
(D) that contains a put, call or similar right pursuant to which the BGI Business is conducted (the “Specified Contracts”):
(i) Company or any Contract for the placementof its Subsidiaries could be required to purchase or sell, distribution or sale of sharesas applicable, units or other ownership any equity interests of any Person or assets constituting a Fund division or business line of any Person, in each case, other than acquisitions by the Company or any of its Subsidiaries of the foregoing that is reasonably expected to provide for payments to, have a fair market value or provide for payments from, a Transferred Entity purchase price of less than $30 million individually or $50 million in excess of $5,000,000 in 2009the aggregate;
(iiE) that contains any administration standstill or similar agreement pursuant to which the Company or any other Contract for the provision of administrative services that its Subsidiaries currently is reasonably expected to provide for payments to, restricted from acquiring assets or provide for payments from a Transferred Entity in 2009 in excess securities of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or less;
(iii) any Contract, other than a Benefit and Compensation Arrangement, that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $10,000,000 in 2009;
(iv) any Contract prohibiting or materially restricting the ability of any Transferred Entity to conduct its business, to engage in any business or operate in any geographical area or to compete with any another Person;
(vF) other than with respect to any Contract for partnership that is wholly owned by the Company or any wholly owned Subsidiary of the Company, any partnership, joint venture, strategic alliancejoint product development (other than a development agreement for any customer entered into in the ordinary course of business) or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any joint product development, partnership or similar arrangement involving joint venture or that involves a sharing of profits or expenses or payments based on revenues, profits, losses, costs or assets under management of any Affiliate of Parent or any Fund that liabilities and is reasonably expected to account for revenue to the BGI Business in 2009 in excess of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be material to the Transferred Entities, taken as a whole;
(vi) any Contract relating to any Indebtedness of a Transferred Entity in an amount in excess of $5,000,000, other than: (A) any mortgage or similar Indebtedness secured by specific property owned by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closing;
(vii) any Contract (including any so-called take-or-pay or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any Transferred Entity in respect of the BGI Business that would reasonably be expected to be material to the Transferred EntitiesCompany and its Subsidiaries, taken as a whole, or in which the Company owns more than a 15% voting or economic interest, or any interest valued at more than $30 million without regard to percentage voting or economic interest;
(BG) a Transferred Entity has directly relating to or indirectly guaranteed or otherwise agreed to be responsible for evidencing Indebtedness or liabilities of any Person (other than any Transferred Entity) in each case in excess of $10,000,00020 million individually or $40 million in the aggregate;
(viiiH) that grants any Contract that provides for earn-outs rights of first refusal, rights of first negotiation or other similar contingent obligations that would reasonably be expected rights to result in annual payments in 2009 any Person with respect to the sale of $5,000,000 any material assets of the Company and its Subsidiaries, taken as a whole, or moreof any Subsidiary or material business of the Company and its Subsidiaries;
(ixI) any Contract (1) entered into since January 1after December 31, 2007 2017, and not yet consummated, for the acquisition or disposition disposition, directly or indirectly (by scheme of a arrangement, merger or otherwise), of assets or capital stock or other equity interests of any Person or a division for aggregate consideration under such Contract in excess of a Person$50 million individually, or for $100 million in the acquisition or sale of any assets (including Intellectual Property), properties, equity interests or rightsaggregate, other than any such sale purchases of inventory or acquisition similar assets in the ordinary course of business or (2) for any acquisition, directly or indirectly (by scheme of arrangement, merger or otherwise), of assets or capital stock or other equity interests of any Person, pursuant to which the Company or any of its Subsidiaries has continuing “earn out” or other similar contingent payment obligations (but excluding indemnification obligations with respect to breaches of representations, warranties or covenants);
(J) that is, except for licenses granted to customers of the Company in the ordinary course of business, (1) an agreement pursuant to which the Company or any of its Subsidiaries is licensed or is otherwise permitted by a third party to use any material Intellectual Property (other than any “commercially available off-the-shelf software package,” or other software licensed pursuant to a software “shrink wrap,” “click wrap,” or “click-through” license) or (2) an agreement pursuant to which a third party is licensed or is otherwise permitted to use any material Intellectual Property owned by the Company or any of its Subsidiaries, in each case of clauses (1) and (2) where such sale or acquisition that would not reasonably be expected to be agreement is material to the Transferred Entitiesbusiness of the Company and its Subsidiaries, taken as a whole; and
(xK) that by its express terms calls for aggregate payment or receipt by the Company and its Subsidiaries under such Contract of more than $25 million over the annual term of such Contract and is not terminable at will by any BGI Affiliate Arrangement party upon ninety (90) days’ notice or less with no liability or further obligation thereunder (other than this Agreement, Contracts solely between or among any of the Company and any of its wholly-owned Subsidiaries, Contracts that will are subject of another subsection of this Section 5.1(q) or any Material Leases); (each such Contract required to be in effect after listed on Section 5.1(q) of the ClosingCompany Disclosure Letter (whether or not so listed) is referred to herein as a “Material Contract”).
(bii) Seller Each of the Material Contracts, Customer Contracts, Supplier Agreements and Distributor Contracts is valid and binding on the Company and each of its Subsidiaries that is a party thereto and, to the Knowledge of the Company, each other party thereto and is in full force and effect, except for such failures to be valid and binding or to be in full force and effect that have not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. There is no default under any Material Contract, Customer Contract, Supplier Agreement or Distributor Contract by the Company or any of its Subsidiaries that is a party thereto, or to the Knowledge of the Company any other party thereto, and no event has occurred that with notice or lapse of time or both would constitute a default thereunder by the Company or any of its Subsidiaries that is a party thereto, or to the Knowledge of the Company any other party thereto, except in each case as is not and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Complete and correct copies of each Material Contract, Customer Contract and Supplier Contract and any material amendments (in each case, excluding purchase orders in the ordinary course of business) thereto have been provided or made available to Buyer prior to the date of this Agreement a complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effect, and is valid and binding on the Transferred Entity that is a party thereto, and, to the Knowledge of Seller, on each other party thereto. There exists no breach or default of any Significant Contract on the part of any Transferred Entity which (with or without notice or lapse of time or both) would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a wholehereof.
(c) As of the date hereof, no Transferred Entity has entered into and is bound by or subject to any of the following:
(i) other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practice, any Contract providing for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000;
(ii) other than Contracts entered into in the ordinary course of business, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a whole; or
(iii) other than Contracts entered into in the ordinary course For purposes of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individually.
(d) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard forms.:
Appears in 3 contracts
Sources: Bid Conduct Agreement, Bid Conduct Agreement (ARRIS International PLC), Bid Conduct Agreement (CommScope Holding Company, Inc.)
Contracts. (a) Section 4.13(aSchedule 5.14(a) of the Seller’s Disclosure Schedules contains a complete and correct list of lists all of the following Contracts, in effect contracts --------- ---------------- as of the date of this Agreement, hereof (whether written or oral) to which a Transferred Entity any Company is a party, party or by which any Company is bound by or subject to, or pursuant to which the BGI Business is conducted (the “Specified Contracts”):bound:
(i) any Contract for the placementemployment of any officer or employee (other than any contract which is terminable without liability upon notice of 30 days or less) or with any former officer, distribution director or sale of sharesemployee pursuant to which, units or other ownership interests of a Fund that is reasonably expected to provide for in any case, payments to, or provide for payments from, a Transferred Entity in excess of $5,000,000 60,000 in 2009any 12-month period are required to be made by any of the Companies after the date hereof;
(ii) any administration agreement or any other Contract for the provision future purchase or sale of administrative services that is reasonably expected to provide for payments to, or provide for payments from a Transferred Entity in 2009 in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or lessreal property;
(iii) for the purchase by any ContractCompany of supplies or equipment which Parent reasonably anticipates will involve the payment of more than $100,000 after the date hereof or which extends beyond December 31, other than a Benefit and Compensation Arrangement, that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $10,000,000 in 20092002;
(iv) any Contract prohibiting that constitute loan agreements, promissory notes, indentures, bonds, security agreements, Guarantees of Indebtedness for Borrowed Money or materially restricting the ability other instruments involving Indebtedness for Borrowed Money in an amount in excess of any Transferred Entity to conduct its business, to engage in any business or operate in any geographical area or to compete with any Person$100,000;
(v) that constitute partnership, joint venture or other similar agreements or arrangements;
(vi) containing any Contract for covenant or provision prohibiting any joint ventureCompany from engaging in any line or type of business;
(vii) that license to a third party the right to conduct the Business or any part thereof or that assign or transfer any right to all or any of the revenues therefrom;
(viii) creating or granting any Encumbrance upon any of the properties or assets of any Company, strategic allianceother than the Parent Securitization Agreements;
(ix) that constitute a material license of any Intellectual Property owned or used in the Business or by any Company;
(x) involving any lease, partnership sublease or similar contract, agreement, instrument or arrangement involving with any Person (other than the Companies) under which any Company is a sharing of profits lessor or expenses or payments based on revenues, profitssublessor of, or assets under management makes available for use to any Person (other than the Companies), (i) any Leased Real Property or (ii) any Owned Real Property;
(xi) relating to the acquisition or disposition of any Affiliate business since January 1, 2000 (whether by merger, sale of Parent stock, sale of assets or any Fund that otherwise) which is reasonably expected to account for revenue to the BGI Business in 2009 in excess of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be was material to the Transferred Entities, Companies taken as a whole;
(vixii) any Contract relating to any Indebtedness of a Transferred Entity in an amount in excess of $5,000,000, other than: (A) any mortgage that constitute franchise agreements or similar Indebtedness secured by specific property owned by or on behalf of a Clientarrangements; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closing;and
(viixiii) any Contract (including any so-called take-or-pay or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any Transferred Entity in respect of the BGI Business that would reasonably be expected to be material to the Transferred Entities, taken as a whole, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person (other than any Transferred Entity) in each case in excess of $10,000,000;
(viii) any Contract that provides for earn-outs or other similar contingent obligations that would reasonably be expected to result in annual payments in 2009 of $5,000,000 or more;
(ix) any Contract entered into since January 1, 2007 for the acquisition or disposition of a Person or a division of a Person, or for the acquisition or sale of any assets (including Intellectual Property), properties, equity interests or rights, other than any such sale or acquisition not in the ordinary course of business or any such sale or acquisition the Business consistent with past practice that would not reasonably be expected to be are material to the Transferred Entities, taken as a whole; and
(x) any BGI Affiliate Arrangement that will be in effect after the Closing.
(b) Seller has made available to Buyer prior to the date of this Agreement a complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effect, and is valid and binding on the Transferred Entity that is a party thereto, and, to the Knowledge of Seller, on each other party thereto. There exists no breach or default of any Significant Contract on the part of any Transferred Entity which (with or without notice or lapse of time or both) would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, Companies taken as a whole.
(cb) As Schedule 5.14(b) sets forth each contract between a Company, on ---------------- the one hand, and Parent or an Affiliate of the date hereof, no Transferred Entity has entered into and is bound by or subject to any of the following:
Parent (i) other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practiceCompanies), any Contract providing for on the indemnification of any Person with respect to liabilitiesother hand, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments except those which are terminable by a Transferred Entity in excess Company without penalty on 60 days' or less notice or which provide for annual payments of less than $10,000,000;
(ii) other than Contracts entered into in the ordinary course of business, any type of Contract to cap fees, share fees 75,000 or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material which relate to the Transferred Entities, taken as a whole; or
(iii) other than Contracts entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individuallyExcluded Business.
(dc) Notwithstanding anything to the contrary contained Except as set forth in this AgreementSchedule 5.14(c), in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by contracts ---------------- listed in Schedule 5.14(c) (which include the Transferred Entities for Significant Customer Contracts) ---------------- have "change of control provisions" which would give a party a right to terminate such purposes materially deviates from such standard formscontract upon consummation of the transactions contemplated hereby or under which a default would occur upon consummation of the transactions contemplated hereby.
Appears in 3 contracts
Sources: Purchase Agreement (Aramark Worldwide Corp), Purchase Agreement (Aramark Worldwide Corp), Purchase Agreement (Aramark Corp)
Contracts. (a) Section 4.13(a) 3.17 of the Seller’s Company Disclosure Schedules contains Letter sets forth a true and complete and correct list of all of the following Contracts, in effect as types of the date of this Agreement, to which a Transferred Entity is a party, is bound by or subject to, or pursuant Contracts to which the BGI Business Company or any Company Subsidiary is conducted a party (the such Contracts being “Specified Material Contracts”):
(i) any Contract for the placement, distribution or sale of shares, units or other ownership interests of a Fund that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $5,000,000 in 2009;
(ii) any administration agreement or any other Contract for the provision of administrative services that is reasonably expected to provide for payments to, or provide for payments from a Transferred Entity in 2009 in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or less;
(iii) any Contract, other than a Benefit and Compensation Arrangement, that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $10,000,000 in 2009;
(iv) any Contract prohibiting or materially restricting the ability of any Transferred Entity to conduct its business, to engage in any business or operate in any geographical area or to compete with any Person;
(v) any Contract for any joint venture, strategic alliance, partnership or similar arrangement involving a sharing of profits or expenses or payments based on revenues, profits, or assets under management of any Affiliate of Parent or any Fund that is reasonably expected to account for revenue to the BGI Business in 2009 in excess of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be material to the Transferred Entities, taken as a whole;
(vi) any Contract relating to any Indebtedness of a Transferred Entity in an amount in excess of $5,000,000, other than: (A) any mortgage or similar Indebtedness secured by specific property owned by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closing;
(vii) any Contract Contracts (including any so-called take-or-pay or keep well keepwell agreements) under which (A) any Person person including the Company or a Company Subsidiary, has directly or indirectly guaranteed indebtedness, liabilities or assumed Indebtednessobligations of the Company or a Company Subsidiary in excess of $3,000,000 or (B) the Company or a Company Subsidiary has directly or indirectly guaranteed indebtedness, liabilities or obligations of any Transferred Entity person, including the Company or another Company Subsidiary, in respect excess of $3,000,000 (in each case other than endorsements for the BGI Business that would reasonably be expected to be material to purpose of collection in the Transferred Entitiesordinary course of business);
(ii) Contracts under which the Company or a Company Subsidiary has, taken as a wholedirectly or indirectly, made any advance, loan, extension of credit or capital contribution to, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities other investment in, any person in excess of any Person $3,000,000 (other than the Company or a Company Subsidiary and other than extensions of trade credit in the ordinary course of business);
(iii) Contracts granting a Lien upon any Transferred Entity) Company Property or any other asset of the Company or any Company Subsidiary securing indebtedness or other obligations, in each case in excess of $10,000,0003,000,000;
(viiiiv) Contracts providing for indemnification of any Contract that provides for earn-outs or other similar contingent obligations that would reasonably be expected to result person in annual payments in 2009 excess of $5,000,000 3,000,000 with respect to material liabilities relating to such person’s current or moreformer services as officer, director, consultant and agent to the Company, any Company Subsidiary or any predecessor person;
(ixv) any a Contract entered into since January 1, 2007 for the acquisition or disposition of a Person or a division of a Person, or for the acquisition or sale of any assets (including Intellectual Property), properties, equity interests or rights, other than any such sale or acquisition not made in the ordinary course of business in which the amount involved exceeds $1,000,000;
(vi) (A) a Contract with a Governmental Entity in which the amount involved exceeds $3,000,000 or (B) a material license or permit by or from any such sale Governmental Entity;
(vii) currency exchange, interest rate exchange, commodity exchange or acquisition that would not reasonably be expected similar Contract;
(viii) a Contract for any joint venture, partnership or similar arrangement;
(ix) a lease, sublease or similar agreement with respect to be material to Company Property in which the Transferred Entities, taken as a whole; andamount involved exceeds $3,000,000 per annum;
(x) a Contract under which the Company or a Company Subsidiary has agreed to purchase or lease any BGI Affiliate Arrangement that will be real property or any interest in effect after the Closing.
(b) Seller has made available to Buyer prior to the date of this Agreement real property for a complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity purchase price in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effect, and is valid and binding on the Transferred Entity that is a party thereto, and, to the Knowledge of Seller, on each other party thereto. There exists no breach 3,000,000 or default of any Significant Contract on the part of any Transferred Entity which (with or without notice or lapse of time or both) would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.
(c) As of the date hereof, no Transferred Entity has entered into and is bound by or subject to any of the following:
(i) other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practice, any Contract providing for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity annual rental in excess of $10,000,0003,000,000 or to construct any improvements on real property or a leasehold interest in real property for a contract sum in excess of $3,000,000;
(iixi) other than Contracts entered into a Contract that is a “material contract” as such term is defined in Item 601(b)(10) of Regulation S-K promulgated by the ordinary course SEC;
(xii) a Contract that materially limits or otherwise materially restricts the right of business, the Company or any type of Contract the Company Subsidiaries to cap fees, share fees engage or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that compete in any such case line of business in any geographic area;
(xiii) a Contract that would be material required to be disclosed under Item 404 of Regulation S-K promulgated by the Transferred Entities, taken as a wholeSEC; or
(iiixiv) a Contract other than Contracts entered into in as set forth above to which the ordinary course Company or a Company Subsidiary is a party or by which it or any of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital its assets or similar investment businesses is bound or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individually.
(d) Notwithstanding anything subject that is material to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) business of the Seller’s Disclosure Schedules is a description Company and the Company Subsidiaries or the use or operation of any “most favored nation” provision their assets and in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) the amount involved exceeds $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements10,000,000.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard forms.
Appears in 3 contracts
Sources: Merger Agreement (Reliance Steel & Aluminum Co), Merger Agreement (Reliance Steel & Aluminum Co), Merger Agreement (Jorgensen Earle M Co /De/)
Contracts. (a) Section 4.13(a) of the Seller’s Disclosure Schedules contains a complete and correct list of all of the following Contracts, in effect as As of the date of this Agreement, to which a Transferred Entity neither the Company nor any Company Subsidiary is a party, is party to or bound by or subject to, or pursuant to which the BGI Business is conducted (the “Specified Contracts”):any Contract that:
(i) is required to be filed by the Company pursuant to Item 601(b) of Regulation S-K under the Securities Act (other than any Contract for the placement, distribution or sale of shares, units or other ownership interests of a Fund that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $5,000,000 in 2009Company Benefit Plan);
(ii) relates to any administration partnership, joint venture, co-investment, limited liability, strategic alliance or similar agreement involving the Company or any of the Company Subsidiaries (other Contract for than any such agreement solely between or among the provision of administrative services that is reasonably expected to provide for payments to, or provide for payments from a Transferred Entity in 2009 in excess of $10,000,000 Company and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or lessthe Company Subsidiaries);
(iii) contains any Contractnon-compete, exclusivity, “most favored nations” or other similar provision that limits or purports to limit, in any material respect, either the type of business in which the Company or any of the Company Subsidiaries (or, after giving effect to the Merger, Parent or its Subsidiaries) may engage, the terms or conditions the Company or any of the Company Subsidiaries (or, after giving effect to the Merger, Parent or its Subsidiaries) can offer to any other Person, or the geographic area in which the Company or any of the Company Subsidiaries (or, after giving effect to the Mergers, Parent or its Subsidiaries) may so engage;
(iv) provides for the acquisition or disposition by the Company or any Company Subsidiary of any properties or assets (except for acquisitions and dispositions of properties, assets and inventory in the ordinary course of business consistent with past practice), in each case with a fair market value in excess of $15,000,000;
(v) involves any pending or contemplated merger, consolidation or similar business combination transaction;
(vi) by its terms obligates the Company or any of the Company Subsidiaries to make expenditures (other than a Benefit and Compensation Arrangement, that is reasonably expected principal and/or interest payments or the deposit of other reserves with respect to provide for debt obligations) or entitles the Company or any of the Company Subsidiaries to payments to, or provide for payments from, a Transferred Entity (A) in excess of $10,000,000 in 2009;
any 12 month period or (ivB) any Contract prohibiting or materially restricting the ability of any Transferred Entity to conduct its business, to engage in any business or operate in any geographical area or to compete with any Person;
(v) any Contract for any joint venture, strategic alliance, partnership or similar arrangement involving a sharing of profits or expenses or payments based on revenues, profits, or assets under management of any Affiliate of Parent or any Fund that is reasonably expected to account for revenue to the BGI Business in 2009 in excess of $10,000,000 on an annual (or annualized) basis or 50,000,000, in the aggregate over the term of such Contract; provided that would reasonably be expected to be material to the Transferred Entities, taken as a whole;
(vi) any Contract relating to any Indebtedness of a Transferred Entity in an amount in excess of $5,000,000, other than: (A) any mortgage or similar Indebtedness secured by specific property owned by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity expenditures and payments under hardware reseller arrangements will be liable following the Closing;
(vii) any Contract (including any so-called take-or-pay or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any Transferred Entity in respect of the BGI Business measured on a net basis; provided further that would reasonably be expected to be material to the Transferred Entities, taken as a whole, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person (other than any Transferred Entity) in each case in excess of $10,000,000;
(viii) any Contract that provides for earn-outs or other similar contingent obligations that would reasonably be expected to result in annual payments in 2009 of $5,000,000 or more;
(ix) any Contract customer Contracts entered into since January 1, 2007 for the acquisition or disposition of a Person or a division of a Person, or for the acquisition or sale of any assets (including Intellectual Property), properties, equity interests or rights, other than any such sale or acquisition in the ordinary course of business or any such sale or acquisition that would are not reasonably be expected required to be material to the Transferred Entities, taken as a whole; and
(x) any BGI Affiliate Arrangement that will be in effect scheduled until 45 calendar days after the Closing.
(b) Seller has made available to Buyer prior to the date of this Agreement a complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each ;
(ivii) Specified Contractrelates to the settlement or proposed settlement of any dispute or Action in which the amount to be paid in settlement involves (A) the issuance of any securities by the Company or any of the Company Subsidiaries, or (iiB) Investment Advisory Arrangement which accounts for the payment of any cash or other consideration having a value, in each case, of more than $1,000,000 1,000,000;
(viii) contains a standstill or similar Contract pursuant to which the Company or any of revenue the Company Subsidiaries has agreed not to acquire assets or securities of any other Person;
(ix) was entered into with any of the Company Subsidiaries or any other Person in which the Company holds, directly or indirectly, any equity interest, which relates to the BGI Business on an annualized basis and rights of the Company with respect to voting, rights of first offer, rights of first refusal or other similar rights regarding such equity interests in such Person;
(iiix) Contract that is reasonably expected to provide for payments to evidences a Transferred Entity capitalized lease obligation in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i)10,000,000, (ii) and (iii) being the “Significant Contracts”) is in full force and effect, and is valid and binding on the Transferred Entity or that is a party theretoan indenture, andcredit agreement, to the Knowledge of Sellerloan agreement, on each security agreement, guarantee, note, mortgage, suretyship, “keep well” or other party thereto. There exists no breach agreement providing for or default guaranteeing indebtedness of any Significant Contract on the part Person in excess of any Transferred Entity which $10,000,000 (with or without notice or lapse of time or both) would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.
(c) As of the date hereof, no Transferred Entity has entered into and is bound by or subject to any of the following:
(i) other than investment management and distribution Contracts surety or performance bonds, letters of credit or similar agreements entered into in the ordinary course of business consistent with past practicepractice in each case to the extent not drawn upon), except for any Contract solely among or between the Company and any of the Company Subsidiaries;
(xi) contains restrictions on the ability of the Company or any of the Company Subsidiaries to pay dividends or other distributions (other than pursuant to the Company Articles and the Company Regulations);
(xii) contains a put, call or similar right pursuant to which the Company or any of the Company Subsidiaries could be required to purchase or sell, as applicable, any Contract providing for the indemnification equity interests of any Person with respect or assets that have a fair market value or purchase price of more than $5,000,000, or constitutes an interest rate cap, interest rate collar, interest rate swap or other Contract relating to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000hedging transaction;
(iixiii) other than Contracts entered into in is (A) material license (by or to the ordinary course of businessCompany or any Company Subsidiary), any type of Contract covenant not to cap fees▇▇▇, share fees escrow, or other payments, share expenses, waive fees Contract that grants rights in or to reimburse any material Intellectual Property rights and (B) an exclusive license or assume other Contract affecting the Company’s or any of the Company Subsidiaries’ ability to disclose, own, enforce, use, or all fees or expenses thereunder license any material Intellectual Property (provided, however, that in any such case would the following are not required to be material scheduled but shall constitute Material Contracts solely for purposes of Section 4.14(b) and the last sentence of Section 4.14(c) if they otherwise qualify: (w) non-exclusive licenses granted to the Transferred Entities, taken as a whole; or
(iii) other than Contracts entered into customers in the ordinary course of business consistent with past practice; (x) non-exclusive licenses implied by the sale of a product and (y) licenses of commercially available, any Contract requiring any Transferred Entity (A) unmodified, off-the-shelf Software licensed pursuant to coclick-invest with any other Personthrough, (B) to provide seed capital click-wrap, or similar investment or (C) to invest in any investment product, in each case in an amount in excess of standard terms and conditions for less than $5,000,000 individually.10,000,000 annually); or
(dxiv) Notwithstanding anything to would prohibit or materially delay the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) consummation of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision Merger or the Transactions. Each such Contract described in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of clauses (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and through (iixiv) $5,000,000 in 2008 for all other Investment Advisory Arrangementsabove is referred to herein as a “Material Contract”.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard forms.
Appears in 3 contracts
Sources: Merger Agreement (Cincinnati Bell Inc), Merger Agreement (Cincinnati Bell Inc), Merger Agreement (Ares Management LLC)
Contracts. (aSchedule 2.1(x) Section 4.13(a) of the Seller’s Disclosure Schedules contains a complete and correct list of sets forth all of the following Contractsoral or written contracts, in effect as of the date of this Agreementagreements, to which a Transferred Entity is a partyindentures, is bound by or subject tonotes, bonds, loans, instruments, leases, commitments, or pursuant other arrangements or commitments (collectively, “Contracts”) to which the BGI Business Company or any of its Subsidiaries is conducted (the “Specified Contracts”):
(i) any Contract for the placement, distribution a party or sale of shares, units or other ownership interests of by which it is bound with a Fund that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity value in excess of $5,000,000 75,000, in 2009;
each case, of any of the following types (collectively, the “Material Contracts”): (i) Contracts with any current or former officer or director of the Company or any of the Company’s Subsidiaries or any other employment, non-competition, severance, consulting, or similar agreement; (ii) Contracts with any administration agreement labor union or association representing any employee of the Company or any other Contract for of the provision of administrative services that is reasonably expected to provide for payments to, or provide for payments from a Transferred Entity in 2009 in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or less;
Company’s Subsidiaries; (iii) any Contract, other than a Benefit and Compensation Arrangement, that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $10,000,000 in 2009;
(iv) any Contract prohibiting or materially restricting the ability of any Transferred Entity to conduct its business, to engage in any business or operate in any geographical area or to compete with any Person;
(v) any Contract for any joint venture, strategic alliance, partnership or similar arrangement involving a sharing of profits or expenses or payments based on revenues, profits, or assets under management of any Affiliate of Parent or any Fund that is reasonably expected to account for revenue to the BGI Business in 2009 in excess of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be material to the Transferred Entities, taken as a whole;
(vi) any Contract relating to any Indebtedness of a Transferred Entity in an amount in excess of $5,000,000, other than: (A) any mortgage or similar Indebtedness secured by specific property owned by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closing;
(vii) any Contract (including any so-called take-or-pay or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any Transferred Entity in respect of the BGI Business that would reasonably be expected to be material to the Transferred Entities, taken as a whole, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person (other than any Transferred Entity) in each case in excess of $10,000,000;
(viii) any Contract that provides for earn-outs or other similar contingent obligations that would reasonably be expected to result in annual payments in 2009 of $5,000,000 or more;
(ix) any Contract entered into since January 1, 2007 Contracts for the acquisition or disposition of a Person or a division of a Person, or for the acquisition or sale of any of the assets (including Intellectual Property), properties, equity interests of the Company or rights, any of the Company’s Subsidiaries other than any such sale or acquisition in the ordinary course of business or for the grant to any such sale person of any preferential rights to purchase any of their assets; (iv) joint venture agreements; (v) Contracts containing covenants of the Company or any of the Company’s Subsidiaries not to compete in any line of business or with any person in any geographical area; (vi) Contracts relating to the acquisition that would not reasonably be expected by the Company or any of the Company’s Subsidiaries of any operating business or the capital stock of any other Person; (vii) Contracts relating to be indebtedness; or (viii) Contracts granting any registration or similar right in respect of securities of the Company or any of the Company’s Subsidiaries. There have been made available to the Purchasers true and complete copies of all of the Material Contracts and there are no other contracts material to the Transferred Entities, taken business of the Company or any of its Subsidiaries. Except as a whole; and
(x) any BGI Affiliate Arrangement that will be in effect after the Closing.
(b) Seller has made available to Buyer prior to the date of this Agreement a complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect set forth on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((iSchedule 2.1(x), (ii) all of the Material Contracts and (iii) being all other Contracts of the “Significant Contracts”) is Company and the Company’s Subsidiaries are in full force and effecteffect and are the legal, valid, and binding obligations of the Company and/or the Company’s Subsidiaries, enforceable against them in accordance with their terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, and similar laws affecting creditors’ rights and remedies generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is valid sought in a proceeding at law or in equity). Except as set forth on Schedule 2.1(x), neither the Company nor any of the Company’s Subsidiaries is in default in any material respect under any Material Contract or any other Contract of the Company and binding on the Transferred Entity that is a party theretoits Subsidiaries, andnor, to the Knowledge of SellerCompany’s knowledge, on each after due inquiry, is any other party thereto. There exists no breach or default of any Significant Contract on the part of any Transferred Entity which (with or without notice or lapse of time or both) would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.
(c) As of the date hereof, no Transferred Entity has entered into and is bound by or subject to any of the following:
(i) other than investment management and distribution Contracts entered into such Contract in the ordinary course of business consistent with past practice, any Contract providing for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000;
(ii) other than Contracts entered into in the ordinary course of business, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses default thereunder that in any such case would be material to the Transferred Entities, taken as a whole; or
(iii) other than Contracts entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individuallyrespect.
(d) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard forms.
Appears in 3 contracts
Sources: Securities Purchase Agreement (Sino Gas International Holdings, Inc.), Securities Purchase Agreement (Sino Gas International Holdings, Inc.), Securities Purchase Agreement (Sino Clean Energy Inc)
Contracts. (a) Section 4.13(aExcept as set forth in CNYF DISCLOSURE SCHEDULE 3.08(a), neither CNYF nor any CNYF Subsidiary is a party to or subject to: (i) any employment, consulting or severance contract or material arrangement with any past or present officer, director or employee of CNYF or any CNYF Subsidiary, except for "at will" arrangements; (ii) any plan, material arrangement or contract providing for bonuses, pensions, options, deferred compensation, retirement payments, profit sharing or similar material arrangements for or with any past or present officers, directors or employees of CNYF or any CNYF Subsidiary; (iii) any collective bargaining agreement with any labor union relating to employees of CNYF or any CNYF Subsidiary; (iv) any agreement which by its terms limits the Seller’s Disclosure Schedules contains a complete and correct list payment of all dividends by CNYF; (v) any instrument evidencing or related to material indebtedness for borrowed money whether directly or indirectly, by way of the following Contractspurchase money obligation, conditional sale, lease purchase, guaranty or otherwise, in effect respect of which CNYF or any CNYF Subsidiary is an obligor to any person, which instrument evidences or relates to indebtedness other than deposits, repurchase agreements, Federal Home Loan Bank of New York advances, bankers' acceptances, and "treasury tax and loan" accounts established in the ordinary course of business and transactions in "federal funds" or which contains financial covenants or other restrictions (other than those relating to the payment of principal and interest when due) which would be applicable on or after the Closing Date to Niagara Bancorp or any Niagara Bancorp Subsidiary; or (vi) any contract (other than this Agreement) limiting the freedom, in any material respect, of CNYF or CSB to engage in any type of banking or bank-related business which CNYF is permitted to engage in under applicable law as of the date of this Agreement, to which a Transferred Entity is a party, is bound by or subject to, or pursuant to which the BGI Business is conducted (the “Specified Contracts”):
(i) any Contract for the placement, distribution or sale of shares, units or other ownership interests of a Fund that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $5,000,000 in 2009;
(ii) any administration agreement or any other Contract for the provision of administrative services that is reasonably expected to provide for payments to, or provide for payments from a Transferred Entity in 2009 in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or less;
(iii) any Contract, other than a Benefit and Compensation Arrangement, that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $10,000,000 in 2009;
(iv) any Contract prohibiting or materially restricting the ability of any Transferred Entity to conduct its business, to engage in any business or operate in any geographical area or to compete with any Person;
(v) any Contract for any joint venture, strategic alliance, partnership or similar arrangement involving a sharing of profits or expenses or payments based on revenues, profits, or assets under management of any Affiliate of Parent or any Fund that is reasonably expected to account for revenue to the BGI Business in 2009 in excess of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be material to the Transferred Entities, taken as a whole;
(vi) any Contract relating to any Indebtedness of a Transferred Entity in an amount in excess of $5,000,000, other than: (A) any mortgage or similar Indebtedness secured by specific property owned by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closing;
(vii) any Contract (including any so-called take-or-pay or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any Transferred Entity in respect of the BGI Business that would reasonably be expected to be material to the Transferred Entities, taken as a whole, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person (other than any Transferred Entity) in each case in excess of $10,000,000;
(viii) any Contract that provides for earn-outs or other similar contingent obligations that would reasonably be expected to result in annual payments in 2009 of $5,000,000 or more;
(ix) any Contract entered into since January 1, 2007 for the acquisition or disposition of a Person or a division of a Person, or for the acquisition or sale of any assets (including Intellectual Property), properties, equity interests or rights, other than any such sale or acquisition in the ordinary course of business or any such sale or acquisition that would not reasonably be expected to be material to the Transferred Entities, taken as a whole; and
(x) any BGI Affiliate Arrangement that will be in effect after the Closing.
(b) Seller has made available True and correct copies of agreements, plans, contracts, arrangements and instruments referred to Buyer prior in Section 3.08(a), have been provided to Niagara Bancorp on or before the date of this Agreement a complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redactedhereof, are listed on CNYF DISCLOSURE SCHEDULE 3.08(a) and accurate are in full force and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date hereof and neither CNYF nor any CNYF Subsidiary (nor, to the knowledge of CNYF, any other party to any such contract, plan, arrangement or instrument) has materially breached any provision of, or is in default in any respect under any term of, any such contract, plan, arrangement or instrument. Except as set forth in the CNYF DISCLOSURE SCHEDULE 3.08(b), no party to any material contract, plan, arrangement or instrument will have the right to terminate any or all of the provisions of any such contract, plan, arrangement or instrument as a result of the execution of, and the transactions contemplated by, this Agreement. Except as set forth in CNYF DISCLOSURE SCHEDULE 3.08(b), none of the employees (including officers) of CNYF, possess the right to terminate their employment as a result of the execution of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity Except as set forth in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((iCNYF DISCLOSURE SCHEDULE 3.08(b), (ii) and (iii) being the “Significant Contracts”) is in full force and effectno plan, and is valid and binding on the Transferred Entity that contract, employment agreement, termination agreement, or similar agreement or arrangement to which CNYF or any CNYF Subsidiary is a party theretoor under which CNYF or any CNYF Subsidiary may be liable contains provisions which permit an employee or independent contractor to terminate it without cause and continue to accrue future benefits thereunder. Except as set forth in CNYF DISCLOSURE SCHEDULE 3.08(b), andno such agreement, plan, contract, or arrangement (x) provides for acceleration in the vesting of benefits or payments due thereunder upon the occurrence of a change in ownership or control of CNYF or any CNYF Subsidiary absent the occurrence of a subsequent event; or (y) requires CNYF or any CNYF Subsidiary to provide a benefit in the form of CNYF Common Stock or determined by reference to the Knowledge value of Seller, on each other party theretoCNYF Common Stock. There exists no breach or default of any Significant Contract on the part of any Transferred Entity which (with or without notice or lapse of time or both) would, individually or Except as set forth in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.
(c) As of the date hereofCNYF DISCLOSURE SCHEDULE 3.08(b), no Transferred Entity has entered into and is bound by such agreement, plan or subject to any of the following:
(i) other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practice, any Contract providing for the indemnification of any Person arrangement with respect to liabilitiesofficers or directors of CNYF, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000;
(ii) other than Contracts entered into in the ordinary course of business, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse CNYF's knowledge, to its employees, provides for benefits which will cause an "excess parachute payment" or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a whole; or
(iii) other than Contracts entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individually.
(d) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees disallowance of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard forms.federal income tax deduction under IRC Section 280G.
Appears in 3 contracts
Sources: Merger Agreement (Cny Financial Corp), Merger Agreement (Cny Financial Corp), Merger Agreement (Cny Financial Corp)
Contracts. (a) Except for Contracts previously filed with the SEC, Contracts with respect to Company Leases that are listed in Section 4.13(a3.17(b) of the Seller’s Company Disclosure Schedules contains Letter and Company Plans, Section 3.15 of the Company Disclosure Letter identifies each note, bond, mortgage, indenture, contract, agreement, lease, license, permit or other instrument or obligation (each, a “Contract”) that constitutes a Company Material Contract (as defined below), an accurate and complete and correct list copy of all each of which has been provided or made available to the Acquirors by the Company. For purposes of this Agreement, each of the following Contracts, in effect Contracts that is unexpired and effective as of the date of this Agreement, to which a Transferred Entity is a party, is bound by or subject to, or pursuant to Agreement and under which the BGI Business is conducted (the Company or any of its Subsidiaries has ongoing rights or obligations will be deemed to constitute a “Specified ContractsCompany Material Contract”)::
(i) any Contract for the placement, distribution or sale of shares, units or other ownership interests of a Fund that is reasonably expected or would be required to provide for payments to, be filed by the Company as a “material contract” pursuant to Item 601(b) (10)(i) of Regulation S-K under the Securities Act or provide for payments from, disclosed by the Company on a Transferred Entity in excess of $5,000,000 in 2009Current Report on Form 8-K;
(ii) any administration agreement Contract that, by its terms, requires payments by the Company or any other Contract for the provision of administrative services that is reasonably expected to provide for payments to, or provide for payments from a Transferred Entity in 2009 its Subsidiaries in excess of $10,000,000 500,000 in the aggregate for the remainder of the stated term of such Contract, other than those that are (A) terminable by the Company or any of its Subsidiaries on no more than ninety (90) days’ notice and by without liability or financial obligation to the Company or any of its terms is not terminable without penalty by a Transferred Entity upon notice Subsidiaries or (B) relate to the purchase of 180 days supplies, utilities, services, equipment or lessother goods in the ordinary course of business;
(iii) any Contractmortgages, indentures, guarantees, loans, credit agreements, security agreements or other than a Benefit and Compensation ArrangementContracts relating to the borrowing of money or extension of credit, that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $10,000,000 300,000, other than (A) accounts receivables and payables, (B) loans by the Company or any of its direct or indirect Subsidiaries to, or guarantees by any of the foregoing for, direct or indirect wholly-owned Subsidiaries of the Company or (C) letters of credit or bonds issued by the Company or one of its Subsidiaries to Governmental Entities in 2009connection with workers compensation or Gaming Laws, in each case, in the ordinary course of business consistent with past practice;
(iv) any Contract prohibiting limiting, in any respect, the freedom of the Company or materially restricting the ability any of any Transferred Entity to conduct its business, Subsidiaries to engage in any business or operate in any geographical area participate, or to compete with any other Person, in the business currently conducted by the Company and its Subsidiaries or in any market or geographic area, or to make use of any material Intellectual Property owned by the Company or any of its Subsidiaries;
(v) any Contract for with any joint ventureof the Company’s or any of its Subsidiaries’ officers, strategic alliancedirectors, partnership employees, principal stockholders or similar arrangement involving a sharing Persons who, to the Knowledge of profits the Company, are controlled thereby, or, to the Knowledge of the Company, any member of such Persons’ immediate families, other than (A) any written employment, consulting or expenses management services agreement or payments based on revenues, profitsother compensation or benefit plan with the Company, or assets under management of any Affiliate of Parent (B) the Company’s or any Fund that is reasonably expected to account for revenue to the BGI Business in 2009 in excess of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be material to the Transferred Entities, taken as a wholeits Subsidiaries’ written employee policies and procedures;
(vi) any Contract relating pursuant to which any Indebtedness Third Party is licensed to use any Intellectual Property owned by the Company or any of a Transferred Entity in its Subsidiaries, and all Contracts pursuant to which the Company or any of its Subsidiaries is licensed to use any Intellectual Property, other than Contracts for (A) commercially available off-the-shelf Software licensed to the Company or any of its Subsidiaries for an amount not in excess of $5,000,000, other than: (A) 500,000 in any mortgage or similar Indebtedness secured by specific property owned by or on behalf case over the term of a Client; the applicable Contract and (B) any Indebtedness solely between Transferred Entitiesthe licensing or cross-licensing of Intellectual Property in the ordinary course of business; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closing;or
(vii) any Contract (including obligating the Company to manage any so-called take-or-pay gaming assets on behalf of an unrelated Third Party or keep well agreements) under pursuant to which (A) any Person has directly Third Party manages any gaming assets or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any Transferred Entity in respect properties of the BGI Business that would reasonably be expected to be material to the Transferred Entities, taken as a whole, Company or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person (other than any Transferred Entity) in each case in excess of $10,000,000;
(viii) any Contract that provides for earn-outs or other similar contingent obligations that would reasonably be expected to result in annual payments in 2009 of $5,000,000 or more;
(ix) any Contract entered into since January 1, 2007 for the acquisition or disposition of a Person or a division of a Person, or for the acquisition or sale of any assets (including Intellectual Property), properties, equity interests or rights, other than any such sale or acquisition in the ordinary course of business or any such sale or acquisition that would not reasonably be expected to be material to the Transferred Entities, taken as a whole; and
(x) any BGI Affiliate Arrangement that will be in effect after the Closingits Subsidiaries.
(b) Seller has made available to Buyer prior to the date of this Agreement a complete Each Company Material Contract is valid and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effect, and is valid enforceable against the Company and binding on the Transferred Entity that is a party thereto, and, its Subsidiaries (and to the Knowledge of Seller, on the Company is enforceable against each other party thereto. There exists no breach ) in accordance with its terms, except to the extent that they have previously expired in accordance with their terms, or default of any Significant Contract on if the part of any Transferred Entity which (with or without notice or lapse of time or both) wouldfailure to be in full force and effect would not, individually or in the aggregate, reasonably be expected to be have a Company Material Adverse Effect and subject in all cases to: (i) Laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) Laws governing specific performance, injunctive relief and other equitable remedies.
(c) Neither the Company nor its Subsidiaries has materially violated or materially breached, or committed any material default under, any Company Material Contract; (ii) to the Transferred EntitiesKnowledge of the Company, taken as a whole. No Transferred Entity no other Person has materially violated or materially breached, or committed any default under, any Company Material Contract; and (iii) neither the Company nor its Subsidiaries has received any written notice of an intention to terminateor, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.
(c) As Knowledge of the date hereofCompany, no Transferred Entity has entered into and is bound by other communication regarding any actual or subject to any of the following:
(i) other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practicepossible material violation or material breach of, or default under, any Contract providing for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000;
(ii) other than Contracts entered into in the ordinary course of business, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a whole; or
(iii) other than Contracts entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individuallyCompany Material Contract.
(d) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard forms.
Appears in 3 contracts
Sources: Merger Agreement (Eldorado Resorts, Inc.), Merger Agreement (Icahn Enterprises Holdings L.P.), Merger Agreement (Gaming & Leisure Properties, Inc.)
Contracts. (a) Except for those Contracts previously filed with the SEC by the Company, Section 4.13(a) 3.15 of the Seller’s Company Disclosure Schedules contains Letter identifies each Company Contract that constitutes a Material Contract (as defined below) (other than Material Contracts described in (a)(ii) below), an accurate and complete and correct list copy of all each of which (other than Material Contracts described in (a)(ii) below) has been provided or made available to Parent by the Company on the Datasite. For purposes of this Agreement, each of the following Contracts, in effect Contracts that is unexpired and effective as of the date of this Agreement, to which a Transferred Entity is a party, is bound by or subject to, or pursuant to Agreement and under which the BGI Business is conducted (the Company or any of its Subsidiaries has ongoing rights or obligations will be deemed to constitute a “Specified ContractsMaterial Contract”)::
(i) any Contract for the placement, distribution or sale of shares, units or other ownership interests of a Fund that is reasonably expected or would be required to provide for payments to, be filed by the Company as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act or provide for payments from, disclosed by the Company on a Transferred Entity in excess of $5,000,000 in 2009Current Report on Form 8-K;
(ii) any administration agreement Contract that, by its terms, requires payments by the Company or any other Contract for the provision of administrative services that is reasonably expected to provide for payments to, or provide for payments from a Transferred Entity in 2009 its Subsidiaries in excess of $10,000,000 500,000 in the aggregate for remainder of the stated term of such Contract, other than those that are terminable by the Company of any of its Subsidiaries on no more than ninety days’ notice and by without material liability or financial obligation to the Company or any of its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or lessSubsidiaries;
(iii) any Contractmortgages, indentures, guarantees, loans, credit agreements, security agreements or other than a Benefit and Compensation ArrangementContracts relating to the borrowing of money or extension of credit, that is reasonably expected to provide for payments toin each case, or provide for payments from, a Transferred Entity in excess of $10,000,000 500,000, other than (A) accounts receivables and payables, and (B) loans to or guarantees for direct or indirect wholly owned Subsidiaries of the Company, in 2009each case, in the ordinary course of business consistent with past practice;
(iv) any Contract prohibiting limiting, in any material respect, the freedom of the Company or materially restricting the ability any of any Transferred Entity to conduct its business, Subsidiaries to engage in any business or operate in any geographical area participate, or to compete with any other Person, in any line of business, market or geographic area, or to make use of any material Intellectual Property owned by the Company or any of its Subsidiaries;
(v) any Contract for pursuant to which the Company or any joint venture, strategic alliance, partnership of its Subsidiaries is the lessee or similar arrangement involving a sharing of profits or expenses or payments based on revenues, profitslessor of, or assets under management of holds, uses, or makes available for use to any Affiliate of Parent Person (other than the Company or a Subsidiary thereof) any Fund real property that is reasonably expected to account for revenue to by the BGI Business in 2009 Contract’s terms requires payment or receipt, as the case may be, in excess of $10,000,000 on an annual (500,000, and any executory Contract for the sale or annualized) basis or that would reasonably be expected to be material to the Transferred Entities, taken as a wholepurchase of any real property;
(vi) any Contract relating entered into since the date of the filing of the Company’s last proxy statement with any of the Company’s or any of its Subsidiaries’ officers, directors, employees, principal shareholders or Persons who, to the knowledge of the Company, are controlled thereby, or, to the knowledge of the Company, any Indebtedness member of a Transferred Entity in an amount in excess of $5,000,000such Persons’ immediate families, other than: (A) than any mortgage written employment, consulting, management services agreement or similar Indebtedness secured by specific property owned by other compensation or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; benefit plan with the Company, or (C) any Indebtedness for which no Transferred Entity will be liable following the ClosingCompany’s or its Subsidiaries’ written employee policies and procedures;
(vii) any Contract (including pursuant to which any sothird Person is licensed to use any material Intellectual Property owned by the Company or any of its Subsidiaries, and all Contracts pursuant to which the Company or any of its Subsidiaries is licensed to use any material Intellectual Property, other than Contracts for commercially available off-called takethe-or-pay or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any Transferred Entity in respect of the BGI Business that would reasonably be expected to be material shelf Software licensed to the Transferred Entities, taken as a whole, Company or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible any of its Subsidiaries for Indebtedness or liabilities of any Person (other than any Transferred Entity) in each case an amount not in excess of $10,000,000;500,000 in any case over the term of the applicable Contract; or
(viii) any employment Contract that provides for earn-outs with the Company or other similar contingent obligations that would reasonably be expected to result in annual payments in 2009 any of $5,000,000 or more;
(ix) its Subsidiaries and any Contract entered into since January 1, 2007 for the acquisition or disposition of a Person or a division of a Person, or for the acquisition or sale of with any assets (including Intellectual Property), properties, equity interests or rights, other than any such sale or acquisition in the ordinary course of business or any such sale or acquisition that would not reasonably be expected to be material to the Transferred Entities, taken as a whole; and
(x) any BGI Affiliate Arrangement that will be in effect after the Closinglabor union.
(b) Seller has made available to Buyer prior to the date of this Agreement a complete Each Material Contract is valid and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effect, and is valid enforceable against the Company and binding on the Transferred Entity that is a party thereto, and, its Subsidiaries (and to the Knowledge knowledge of Seller, on the Company is enforceable against each other party thereto. There exists no breach ) 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, except to the extent that they have previously expired in accordance with their terms, or default of any Significant Contract on if the part of any Transferred Entity which (with or without notice or lapse of time or both) wouldfailure to be in full force and effect would not, individually or in the aggregate, reasonably be expected to be have a material to adverse effect on the Transferred Entities, taken as a whole. No Transferred Entity has received any written notice operations or business of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred EntitiesCompany and its Subsidiaries, taken as a whole.
(c) As of the date hereof, no Transferred Entity has entered into and is bound by or subject to any of the following:
(i) other than investment management and distribution Contracts entered into in Neither the ordinary course of business consistent with past practiceCompany nor its Subsidiaries has materially violated or breached, or committed any material default under, any Contract providing for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000;
Material Contract; (ii) to the knowledge of the Company, no other than Contracts entered into in the ordinary course of businessPerson has materially violated or breached, or committed any material default under, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a wholeMaterial Contract; or
and (iii) neither the Company nor its Subsidiaries has received any written notice or, to the knowledge of the Company, other than Contracts entered into in the ordinary course of business consistent with past practicecommunication regarding any actual or possible material violation or breach of, or material default under, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individuallyMaterial Contract.
(d) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard forms.
Appears in 3 contracts
Sources: Merger Agreement (PNK Entertainment, Inc.), Merger Agreement (Ameristar Casinos Inc), Merger Agreement (Pinnacle Entertainment Inc.)
Contracts. (a) Section 4.13(a) of the Seller’s Disclosure Schedules contains a complete and correct list of all of the following Contracts, in effect Except for Contracts filed as of the date of this Agreement, to which a Transferred Entity is a party, is bound by or subject to, or pursuant to which the BGI Business is conducted (the “Specified Contracts”):
(i) any Contract for the placement, distribution or sale of shares, units or other ownership interests of a Fund that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $5,000,000 in 2009;
(ii) any administration agreement or any other Contract for the provision of administrative services that is reasonably expected to provide for payments to, or provide for payments from a Transferred Entity in 2009 in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or less;
(iii) any Contract, other than a Benefit and Compensation Arrangement, that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $10,000,000 in 2009;
(iv) any Contract prohibiting or materially restricting the ability of any Transferred Entity to conduct its business, to engage in any business or operate in any geographical area or to compete with any Person;
(v) any Contract for any joint venture, strategic alliance, partnership or similar arrangement involving a sharing of profits or expenses or payments based on revenues, profits, or assets under management of any Affiliate of Parent or any Fund that is reasonably expected to account for revenue exhibits to the BGI Business in 2009 in excess of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be material to the Transferred Entities, taken as a whole;
(vi) any Contract relating to any Indebtedness of a Transferred Entity in an amount in excess of $5,000,000, other than: (A) any mortgage or similar Indebtedness secured by specific property owned by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closing;
(vii) any Contract (including any so-called take-or-pay or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any Transferred Entity in respect of the BGI Business that would reasonably be expected to be material to the Transferred Entities, taken as a whole, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person (other than any Transferred Entity) in each case in excess of $10,000,000;
(viii) any Contract that provides for earn-outs or other similar contingent obligations that would reasonably be expected to result in annual payments in 2009 of $5,000,000 or more;
(ix) any Contract entered into since January 1, 2007 for the acquisition or disposition of a Person or a division of a Person, or for the acquisition or sale of any assets (including Intellectual Property), properties, equity interests or rights, other than any such sale or acquisition in the ordinary course of business or any such sale or acquisition that would not reasonably be expected to be material to the Transferred Entities, taken as a whole; and
(x) any BGI Affiliate Arrangement that will be in effect after the Closing.
(b) Seller has made available to Buyer prior to the date of this Agreement a complete Filed SEC Documents and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effect, and is valid and binding on the Transferred Entity that is a party thereto, and, to the Knowledge of Seller, on each other party thereto. There exists no breach or default of any Significant Contract on the part of any Transferred Entity which (with or without notice or lapse of time or both) would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.
(c) As of the date hereof, no Transferred Entity has entered into and is bound by or subject to any of the following:
(i) other than investment management and distribution Contracts purchase orders entered into in the ordinary course of business consistent with past practice, any Contract providing for Section 4.17 of the indemnification Company Disclosure Schedule sets forth a true and complete list as of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess the date of $10,000,000;this Agreement of each of the following Contracts (the “Material Company Contracts”):
(iii) other than all Contracts entered into in of the ordinary course Company or any of business, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a whole; or
(iii) other than Contracts entered into its Subsidiaries made in the ordinary course of business consistent with past practicepractice having an aggregate value, or involving payments by or to the Company or any of its Subsidiaries, of more than $2,000,000, and for which there has been no final close out and final payment under such Contract requiring has not been made;
(ii) all Contracts currently in effect to which the Company or any Transferred of its Subsidiaries is a party that contain a covenant that purports to limit in any material respect either the type of business in which the Company or any of its Subsidiaries (or, after the payment by Merger Sub for Shares pursuant to the Offer, Parent or any of its Subsidiaries) or any of their respective Affiliates may engage or the manner or geographic area in which any of them may so engage in any business or develop, market or distribute any products or services;
(iii) all Contracts which grant “most favored nation” status to any Person that, following the Acceptance Time, would apply to Parent or any of its Subsidiaries, including the Company or any of its Subsidiaries;
(iv) all Contracts which prohibit or limit, in any material respect, the right of the Company or any of its Subsidiaries (or, after the Acceptance Time, would prohibit or limit, in any material respect, the right of Parent or any of its Subsidiaries) to make, sell or distribute any products or services or use, transfer, license, distribute or enforce any of their respective Intellectual Property Rights;
(v) all Contracts under which the Company or any of its Subsidiaries has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness for borrowed money in excess of $250,000;
(vi) all standstill or similar agreements to which the Company is a party that would remain in effect following the Merger;
(vii) all joint venture, partnership, material teaming or other similar agreements to which the Company or any of its Subsidiaries is a party (including all amendments thereto);
(viii) all Contracts to which the Company or any of its Subsidiaries is a party providing for indemnity (including any obligations to advance funds for expenses) to the current or former directors, officers, employees or agents of the Company or any of its Subsidiaries;
(ix) all Contracts which are material to the Company or any operating segment providing for termination, acceleration of payment or other special rights upon the occurrence of a change of control of the Company;
(x) all Contracts between the Company or any of its Subsidiaries and any Governmental Entity (each, a “Company Government Contract”) and all Contracts between the Company or any of its Subsidiaries and any prime contractor or upper-tier subcontractor relating to a Contract between such person and any Governmental Entity (each, a “Company Government Subcontract”); and
(xi) all other Contracts that constitute a “material contract” (as such term is defined in item 601(b)(10) of Regulation S-K).
(b) Each Material Company Contract is binding on the Company or its applicable Subsidiary thereto, and is in full force and effect. Neither the Company nor any of its Subsidiaries is in breach, default or violation of (and no event has occurred which with notice or the lapse of time or both would constitute a default or violation by the Company or any of its Subsidiaries of) any term, condition or provision of any indebtedness, guarantee or any Material Company Contract, including any specification, schedule, quality assurance provision, inspection or test requirement, or performance or payment milestone, to which the Company or any of its Subsidiaries is a party or by which any of their respective assets is bound, which breach, default or violation would have a Company Material Adverse Effect.
(c) Except where the following matters have not had and would not have a Company Material Adverse Effect:
(i) (A) to co-invest with any other Personthe Knowledge of the Company, each Company Government Contract or Company Government Subcontract was legally awarded and (B) to provide seed capital each Company Government Contract (or, if applicable, each prime Contract under which such Company Government Subcontract was awarded) is not the subject of bid or similar investment award protest proceedings as of the date of this Agreement;
(ii) neither the United States government nor any prime contractor, subcontractor or (C) to invest in other person or entity has notified the Company or any investment productof its Subsidiaries, in each case writing, that the Company or any of its Subsidiaries has breached or violated any Law or material certification, representation, clause, provision or requirement pertaining to a Company Government Contract or Company Government Subcontract, and all facts set forth or acknowledged by any representations or certifications submitted by or on behalf of the Company or any of its Subsidiaries in an amount connection with a Company Government Contract or Company Government Subcontract were current, accurate and complete in excess all material respects on the date of $5,000,000 individuallysubmission;
(iii) neither the Company nor any of its Subsidiaries has received any notice of termination for convenience, notice of termination for default, cure notice or show cause notice pertaining to a Company Government Contract or Company Government Subcontract; and
(iv) other than in the ordinary course of business consistent with past practice no cost incurred by the Company or any of its Subsidiaries pertaining to a Company Government Contract or Company Government Subcontract has been questioned or challenged is the subject of any audit or investigation or has been disallowed by any Governmental Entity.
(d) Notwithstanding anything to From January 1, 2009 through the contrary contained in date of this Agreement, in no event shall Specified Contracts include neither the Company nor any Investment Advisory Arrangementof its Subsidiaries, nor, to the Knowledge of the Company, any of their respective directors, officers or employees, is or has been under administrative, civil or criminal investigation or indictment by any Governmental Entity, or any audit or investigation by the Company or any of its Subsidiaries, with respect to any alleged act or omission arising under or relating to any Company Government Contract or Company Government Subcontract.
(e) Attached as Section 4.13(e) There are no disputes relating to the Company Government Contracts which, if resolved unfavorably to the Company, would have a Company Material Adverse Effect. In addition, to the Knowledge of the Seller’s Disclosure Schedules is a description Company, there are no known or reasonably foreseeable expenditures which would materially increase the estimated cost to complete performance of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangementsthe Company Government Contracts.
(f) Attached as Section 4.13(f) To the Knowledge of the Seller’s Disclosure Schedules is a description Company, from January 1, 2009 through the date of this Agreement, neither the Company, any “key person” provision pertaining to employees of a Transferred Entity its directors or officers nor any operating segment has been debarred or suspended for 90 days or more in any Contract that is reasonably expected consecutive twelve-month period, or proposed for debarment or suspension, or received notice of actual or proposed debarment or suspension, from participation in the award of Contracts with the United States government (excluding for this purpose ineligibility to provide for payments bid on certain contracts due to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients generally applicable bidding requirements). To the Knowledge of the securities lending Company, from January 1, 2009 through the date of this Agreement, there exist no facts or short-term cash businesses circumstances that would warrant the institution of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard formssuspension or debarment proceedings.
Appears in 3 contracts
Sources: Merger Agreement (Flir Systems Inc), Merger Agreement (Flir Systems Inc), Merger Agreement (Icx Technologies Inc)
Contracts. (a) Except for this Agreement and each Contract filed as an exhibit to the Filed SEC Documents, Section 4.13(a4.16(a) of the Seller’s Company Disclosure Schedules contains Letter sets forth a complete and correct list of all of the following Contractslist, in effect as of the date of this Agreement, to which a Transferred Entity is a partyof all Material Contracts. For purposes of this Agreement, is bound by or subject to, or pursuant “Material Contract” means all Contracts to which the BGI Business Company or any of its Subsidiaries is conducted a party or by which the Company, any of its Subsidiaries or any of their respective properties or assets is bound (the “Specified Contracts”):other than Company Plans and insurance, reinsurance or retrocession treaties or agreements, slips, binders, cover notes or other similar arrangements) that:
(i) any Contract for are or would be required to be filed by the placement, distribution or sale Company as a “material contract” pursuant to Item 601(b)(10) of shares, units or other ownership interests of a Fund that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $5,000,000 in 2009Regulation S-K under the Securities Act;
(ii) any administration agreement relate to the formation or any other Contract for the provision management of administrative services that is reasonably expected to provide for payments to, or provide for payments from a Transferred Entity in 2009 in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or less;
(iii) any Contract, other than a Benefit and Compensation Arrangement, that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $10,000,000 in 2009;
(iv) any Contract prohibiting or materially restricting the ability of any Transferred Entity to conduct its business, to engage in any business or operate in any geographical area or to compete with any Person;
(v) any Contract for any joint venture, strategic alliance, partnership or other similar arrangement involving a sharing of profits or expenses or payments based on revenues, profits, or assets under management of any Affiliate of Parent or any Fund agreement that is reasonably expected to account for revenue to the BGI Business in 2009 in excess of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be material to the Transferred Entitiesbusiness of the Company and its Subsidiaries, taken as a whole;
(iii) provide for Indebtedness of the Company or any of its Subsidiaries having an outstanding or committed amount in excess of $25,000,000, other than any Indebtedness between or among any of the Company and any of its Subsidiaries;
(iv) are any keepwell or similar agreement under which the Company or any of its Subsidiaries has directly guaranteed any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations of the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $25,000,000 (other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company);
(v) have been entered into since June 30, 2016, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $25,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties or other assets in the ordinary course of business or of supplies, products, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or any of its Subsidiaries);
(vi) prohibit the payment of dividends or distributions in respect of the capital stock of the Company or any Contract relating of its Subsidiaries, prohibit the pledging of the capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Company;
(vii) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property, access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (A) the Company or any Indebtedness of its Subsidiaries to a Transferred Entity third Person or (B) a third Person to the Company or any of its Subsidiaries, in an amount each case, for aggregate annual or one-time fees in excess of $5,000,000, other than: (A) any mortgage or similar Indebtedness secured by specific property owned by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closing;
(vii) any Contract (including any sothan commercially available “off-called takethe-or-pay or keep well agreements) shelf” software licenses under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any Transferred Entity in respect of the BGI Business that would reasonably be expected to be material software is licensed to the Transferred Entities, taken as a whole, Company or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities any of any Person (other than any Transferred Entity) in each case in excess of $10,000,000its Subsidiaries;
(viii) any Contract that provides for earn-outs involve or other similar contingent obligations that would could reasonably be expected to result involve aggregate payments or receipts by or to it and/or its Subsidiaries in annual payments in 2009 excess of $5,000,000 10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or moreany Subsidiary of the Company of any material penalty, (y) any Company Lease or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants or other advisors in connection with the Transactions;
(ix) any Contract entered into since January 1, 2007 for the acquisition or disposition of a Person or a division of a Person, or for the acquisition or sale of any assets (including Intellectual Property), properties, equity interests or rights, other than any such sale or acquisition in the ordinary course of business or any such sale or acquisition that would not reasonably be expected to, individually or in the aggregate, prevent, materially delay or materially impede the Company’s ability to be material consummate the Transactions or Parent’s ability to own and/or conduct the Transferred Entities, taken as a whole; andbusiness of the Company or any of its Subsidiaries after the Effective Time;
(x) are investment management agreements with an investment manager or sub-advisor that is not an Affiliate of the Company;
(xi) contain provisions that prohibit the Company or any BGI of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person which prevents the Company or any Affiliate Arrangement of the Company from entering any material territory, market or field or freely engaging in business anywhere in the world, other than Contracts that will can be in effect after terminated (including such restrictive provisions) by the ClosingCompany or any of its Subsidiaries on less than 90 days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xii) provide for the outsourcing of any material function or part of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreements; or
(xiii) are investment management agreements between AlphaCat Managers Ltd. or AlphaCat Capital Inc. as investment manager or sub-advisor, on the one hand, and any other party, on the other hand.
(b) Seller has made available to Buyer prior to the date As of this Agreement a complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each , (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 each Material Contract is valid and binding on the Company and/or any of revenue its Subsidiaries to the BGI Business on an annualized basis extent such Person is a party thereto, as applicable, and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess the Knowledge of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i)the Company, (ii) each other party thereto, and (iii) being the “Significant Contracts”) is in full force and effect, except where the failure to be valid, binding or in full force and is valid effect would not constitute a Material Adverse Effect, (ii) the Company and binding on the Transferred Entity that is a party theretoeach of its Subsidiaries, and, to the Knowledge of Sellerthe Company, on each any other party thereto. There exists no breach or default , has performed all obligations required to be performed by it under each Material Contract, except where such noncompliance would not constitute a Material Adverse Effect, (iii) neither the Company nor any of its Subsidiaries has received notice of the existence of any Significant Contract on the part of any Transferred Entity event or condition which (with or without constitutes, or, after notice or lapse of time or both, will constitute, a default on the part of the Company or any of its Subsidiaries under any Material Contract, except where such default would not constitute a Material Adverse Effect and (iv) wouldthere are no events or conditions which constitute, individually or, after notice or in lapse of time or both, will constitute a default on the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability part of any Significant counterparty under such Material Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken except as would not constitute a wholeMaterial Adverse Effect.
(c) As of the date hereof, no Transferred Entity has entered into and is bound by or subject to any of the following:
(i) other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practice, any Contract providing for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000;
(ii) other than Contracts entered into in the ordinary course of business, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a whole; or
(iii) other than Contracts entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individually.
(d) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard forms.
Appears in 3 contracts
Sources: Merger Agreement, Merger Agreement (American International Group Inc), Merger Agreement (Validus Holdings LTD)
Contracts. Except for (aw) Contracts executed by Parent or one of its subsidiaries on behalf of the Company or a subsidiary of the Company, (x) Contracts the parties to which consist solely of Parent or any of its subsidiaries, on the one hand, and the Company or any of its subsidiaries, on the other hand, (y) the Transaction Agreements or (z) as set forth in Section 4.13(a4.01(v) of the Seller’s Company Disclosure Schedules contains a complete Schedule, neither the Company nor any of its subsidiaries with respect to the Retained Business is, and correct list of all none of the following Contracts, in effect Retained Companies will be as of the date of this AgreementEffective Time, a party to which a Transferred Entity is a party, is or bound by or subject to, or pursuant to which any of the BGI Business is conducted (the “Specified Contracts”):following:
(i) any employment Contract for the placement, distribution or sale of shares, units or other ownership interests of a Fund that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity has an aggregate future liability in excess of $5,000,000 in 2009100,000 and is not terminable by one of the Retained Companies by notice of not more than 60 days for a cost of less than $100,000;
(ii) covenant not to compete (other than pursuant to any administration agreement radius restriction contained in any lease, reciprocal easement or any other Contract for the provision of administrative services that is reasonably expected to provide for payments todevelopment, construction, operating or provide for payments from a Transferred Entity in 2009 in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or lesssimilar agreement);
(iii) Contract with any Contractcurrent or former employee, officer or director of the Company or any of its subsidiaries (other than a Benefit and Compensation Arrangement, that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $10,000,000 in 2009employment agreements covered by clause (i) above);
(iv) any Contract prohibiting lease, sublease or materially restricting the ability of any Transferred Entity to conduct its business, to engage in any business or operate in any geographical area or to compete similar agreement with any Personperson (other than any of the Retained Companies) under which any of the Retained Companies is a lessor or sublessor of, or makes available for use to any person (other than the Retained Companies), (A) any property of the Retained Companies or (B) any portion of the premises otherwise occupied by any of the Retained Companies;
(v) any Contract for any joint venturelease, strategic alliance, partnership sublease or similar arrangement involving agreement with any person (other than any of the Retained Companies) under which (A) any of the Retained Companies is a sharing of profits or expenses or payments based on revenues, profitslessee of, or assets under management holds or uses, any machinery, equipment, vehicle or other tangible personal property owned by any person or (B) any of the Retained Companies is a lessor or sublessor of, or makes available for use by any Affiliate person, any tangible personal property owned or leased by any of Parent the Retained Companies, in any such case which has an aggregate future liability or any Fund that is reasonably expected to account for revenue to receivable, as the BGI Business in 2009 case may be, in excess of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be material to 50,000 and is not terminable by one of the Transferred Entities, taken as Retained Companies by notice of not more than 60 days for a wholecost of less than $50,000;
(vi) (A) continuing Contract for the future purchase of materials, supplies or equipment, (B) management, service, consulting or other similar type of Contract or (C) advertising Contract, in any Contract relating such case which has an aggregate future liability to any Indebtedness person (other than any of a Transferred Entity in an amount the Retained Companies) in excess of $5,000,000, other than: (A) any mortgage or similar Indebtedness secured 50,000 and is not terminable by specific property owned one of the Retained Companies by or on behalf notice of not more than 60 days for a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closingcost of less than $50,000;
(vii) material license, option or other Contract relating in whole or in part to the Intellectual Property set forth in Section 4.01(u) of the Company Disclosure Schedule or other material trademarks or copyrights or computer software used primarily in con nection with the Retained Business as currently conducted (other than licenses for the use of readily available, off-the-shelf software);
(viii) Contract under which any of the Retained Companies has borrowed any money from, or issued any note, bond, debenture or other evidence of indebtedness to, any person (other than any of the Retained Companies) or any other note, bond, debenture or other evidence of indebtedness issued to any person (other than any of the Retained Companies);
(ix) Contract (including any so-called take-or-pay or keep well keepwell agreements) under which (A) any Person person (including any of the Retained Companies) has directly or indirectly guaranteed or assumed Indebtednessindebtedness, liabilities or obligations of any Transferred Entity in respect of the BGI Business that would reasonably be expected to be material to Retained Companies or the Transferred Entities, taken as a whole, GBC Companies or (B) a Transferred Entity any of the Retained Companies has directly or indirectly guaranteed indebtedness, liabilities or otherwise agreed to be responsible for Indebtedness or liabilities obligations of any Person person (other than any Transferred Entity) in each case in excess of $10,000,000;
(viii) any Contract that provides for earn-outs or other similar contingent obligations that would reasonably be expected to result in annual payments in 2009 of $5,000,000 or more;
(ix) any Contract entered into since January 1, 2007 than endorsements for the acquisition or disposition purpose of a Person or a division of a Person, or for the acquisition or sale of any assets (including Intellectual Property), properties, equity interests or rights, other than any such sale or acquisition in the ordinary course of business or any such sale or acquisition that would not reasonably be expected to be material to the Transferred Entities, taken as a whole; and
(x) any BGI Affiliate Arrangement that will be in effect after the Closing.
(b) Seller has made available to Buyer prior to the date of this Agreement a complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effect, and is valid and binding on the Transferred Entity that is a party thereto, and, to the Knowledge of Seller, on each other party thereto. There exists no breach or default of any Significant Contract on the part of any Transferred Entity which (with or without notice or lapse of time or both) would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.
(c) As of the date hereof, no Transferred Entity has entered into and is bound by or subject to any of the following:
(i) other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practice, any Contract providing for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000;
(ii) other than Contracts entered into collection in the ordinary course of business);
(x) Contract under which any of the Retained Companies has, directly or indirectly, made any loan, advance, extension of credit or capital contribution to, or investment in, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a whole; or
person (iii) other than Contracts entered into any of the 43 39 Retained Companies and other than to officers and employees of the Retained Companies for travel, business or relocation expenses in the ordinary course of business);
(xi) mortgage, pledge, security agreement, deed of trust or other instrument granting a Lien upon any property of any of the Retained Companies;
(xii) Contract under which any of the Retained Companies is or may become obligated to indemnify any other person (other than any of the Retained Companies) or otherwise to assume any material liability with respect to liabilities relating to any current or former business consistent with past practiceof the Company, any Contract requiring of its subsidiaries or any Transferred Entity predecessor person;
(Axiii) programming agreement that has an aggregate future liability that the Retained Companies are obligated to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount pay in excess of $5,000,000 individually.75,000; or
(dxiv) Notwithstanding anything other Contract which has an aggregate future liability to any person (other than the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(eRetained Companies) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 75,000 and is not terminable by one of the Retained Companies by notice of not more than 60 days for a cost of less than $75,000. Except as set forth in 2009.
Section 4.01(v) of the Company Disclosure Schedule and subject to obtaining the consents set forth in Section 4.01(d) of the Company Disclosure Schedule, all Contracts listed in Section 4.01(v) of the Company Disclosure Schedule are valid, binding and in full force and effect and are enforceable by the Company or its relevant subsidiary (gand, at the Effective Time, will be enforceable by one of the Retained Companies) Seller has made available to Buyer a true and complete copy of in accordance with its form of counterparty security lending (borrower default) indemnity Contract terms. The Company and its forms subsidiaries have performed all material obligations required to be performed by them to date under the Contracts listed in the Company Disclosure Schedule and they are not (with or without the lapse of cash fund capital support Contractstime or the giving of notice, or both) in each case provided breach or default in any material respect thereunder and, to certain funds and clients the knowledge of the securities lending or short-term cash businesses of the BGI BusinessCompany, and none no other party to any of the Contracts used by listed in the Transferred Entities for such purposes materially deviates from such standard forms.Company Disclosure Schedule is (with or without the lapse of time or the giving of notice, or both) in breach or default in any material respect thereunder. 44 40
Appears in 3 contracts
Sources: Merger Agreement (Gaylord Entertainment Co), Merger Agreement (Westinghouse Electric Corp), Merger Agreement (Westinghouse Electric Corp)
Contracts. (a) Section 4.13(a) To the best of the Seller’s Disclosure Schedules contains Company's knowledge, Schedule 3.11 sets forth a complete and correct accurate list of all any of the following Contracts, in effect as of (including all amendments and/or modifications to the date of this Agreement, to which a Transferred Entity is a party, is bound by or subject to, or pursuant following) to which the BGI Business Company or any of its subsidiaries is conducted a party or by which Company or any of its subsidiaries is bound (the “Specified collectively, "Scheduled Contracts”"):
(i) any Contract for the placementall deeds, distribution or sale of sharesindentures, units leases, subleases or other ownership interests instruments by which an ownership, leasehold or other interest in real property is held by the Company or any of a Fund that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $5,000,000 in 2009its subsidiaries;
(ii) all contracts, commitments or agreements, including contracts or licenses pertaining to the payment of royalties, to the extent that any administration such agreement individually includes provisions that do or could involve payments or commitments (whether fixed or contingent) to or from the Company or any other Contract of its subsidiaries for the provision of administrative services that is a fixed amount, or a reasonably expected to provide for payments toamount, or provide for payments from a Transferred Entity in 2009 in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or less100,000;
(iii) all management, compensation, employment or severance contracts, commitments or agreements or contracts or agreements entered into with any Contractdirector, other than a Benefit and Compensation Arrangement, that is reasonably expected to provide for payments to, officer or provide for payments from, a Transferred Entity in excess employee of $10,000,000 in 2009the Company or any of its subsidiaries;
(iv) any Contract prohibiting all contracts or materially restricting agreements under which the ability of any Transferred Entity to conduct its business, to engage in any business or operate in any geographical area or to compete with any Person;
(v) any Contract for any joint venture, strategic alliance, partnership or similar arrangement involving a sharing of profits or expenses or payments based on revenues, profits, or assets under management of any Affiliate of Parent Company or any Fund that is reasonably expected of its subsidiaries has any outstanding indebtedness, obligation or liability for borrowed money or the deferred purchase price of property or has the obligation to account for revenue to the BGI Business in 2009 in excess of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be material to the Transferred Entities, taken as a whole;
(vi) any Contract relating to any Indebtedness of a Transferred Entity in an amount in excess of $5,000,000, other than: (A) any mortgage or similar Indebtedness secured by specific property owned by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closing;
(vii) any Contract (including any so-called take-or-pay or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any Transferred Entity in respect of the BGI Business that would reasonably be expected to be material to the Transferred Entities, taken as a whole, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person (other than any Transferred Entity) in each case in excess of $10,000,000;
(viii) any Contract that provides for earn-outs or other similar contingent obligations that would reasonably be expected to result in annual payments in 2009 of $5,000,000 or more;
(ix) any Contract entered into since January 1, 2007 for the acquisition or disposition of a Person or a division of a Person, or for the acquisition or sale of any assets (including Intellectual Property), properties, equity interests or rights, other than incur any such sale indebtedness, obligation or acquisition in the ordinary course of business or any such sale or acquisition that would not reasonably be expected to be material to the Transferred Entities, taken as a whole; and
(x) any BGI Affiliate Arrangement that will be in effect after the Closing.
(b) Seller has made available to Buyer prior to the date of this Agreement a complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effect, and is valid and binding on the Transferred Entity that is a party thereto, and, to the Knowledge of Seller, on each other party thereto. There exists no breach or default of any Significant Contract on the part of any Transferred Entity which (with or without notice or lapse of time or both) would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.
(c) As of the date hereof, no Transferred Entity has entered into and is bound by or subject to any of the following:
(i) other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practice, any Contract providing for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000;
(ii) other than Contracts entered into in the ordinary course of business, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a whole; or
(iii) other than Contracts entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment productliability, in each case in an amount in excess of greater than $5,000,000 individually.100,000;
(dv) Notwithstanding anything all bonds or agreements of guarantee or indemnification in which the Company or any of its subsidiaries acts as surety, guarantor or indemnitor with respect to any individual obligation (fixed or contingent) in a fixed amount or a reasonably expected amount greater than $100,000; and
(vi) all secrecy, noncompete or other agreements which (A) restrict the contrary contained right of the Company or any of its subsidiaries to engage in any business or (B) would restrict the right of Parent or any of affiliates to engage in any business after the consummation of the transactions contemplated by this Agreement; Except as set forth on Schedule 3.11, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 neither the Company nor any of its subsidiaries is in 2008 for Investment Advisory Arrangement with U.S.-based clients and default under the terms of any Scheduled Contract, (ii) $5,000,000 no other party thereto is in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of default under the Seller’s Disclosure Schedules is a description terms of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Scheduled Contract and its forms of cash fund capital support Contracts, (iii) each Material Contract is in each case provided to certain funds full force and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard formseffect.
Appears in 2 contracts
Sources: Merger Agreement (Toastmaster Inc), Merger Agreement (Salton Maxim Housewares Inc)
Contracts. (a) Except for (A) this Agreement, (B) each Company Plan (C) each Foreign Plan and (D) each Contract filed as an exhibit to the Filed SEC Documents, Section 4.13(a3.16(a) of the Seller’s Company Disclosure Schedules contains Letter sets forth a complete and correct list of all of the following Contracts, in effect Material Contracts as of the date of this Agreement. For purposes of this Agreement, to which a Transferred Entity is a party, is bound by or subject to, or pursuant “Material Contract” means all Contracts to which the BGI Business Company or any of its Subsidiaries is conducted a party or by which the Company, any of its Subsidiaries or any of their respective properties or assets is bound (the “Specified Contracts”):other than Company Plans) that:
(i) any Contract for are or would be required to be filed by the placement, distribution or sale Company as a “material contract” pursuant to Item 601(b)(10) of shares, units or other ownership interests of a Fund that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $5,000,000 in 2009Regulation S-K under the Securities Act;
(ii) any administration agreement relate to the formation or any other Contract for the provision management of administrative services that is reasonably expected to provide for payments to, or provide for payments from a Transferred Entity in 2009 in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or less;
(iii) any Contract, other than a Benefit and Compensation Arrangement, that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $10,000,000 in 2009;
(iv) any Contract prohibiting or materially restricting the ability of any Transferred Entity to conduct its business, to engage in any business or operate in any geographical area or to compete with any Person;
(v) any Contract for any joint venture, strategic alliance, partnership or other similar arrangement involving a sharing of profits or expenses or payments based on revenues, profits, or assets under management of any Affiliate of Parent or any Fund agreement that is reasonably expected to account for revenue to the BGI Business in 2009 in excess of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be material to the Transferred Entitiesbusiness of the Company and its Subsidiaries, taken as a whole;
(viiii) any Contract relating to any provide for Indebtedness of a Transferred Entity in the Company or any of its Subsidiaries, or pursuant to which the Company or any of its Subsidiaries guarantees Indebtedness of another Person, having an outstanding or committed amount in excess of $5,000,0005 million, other than: (A) any mortgage or similar Indebtedness secured by specific property owned by or on behalf of a Client; (B) than any Indebtedness solely between Transferred Entities; or (C) among any Indebtedness for which no Transferred Entity will be liable following of the ClosingCompany and any of its Subsidiaries and other than any letters of credit;
(viiiv) any Contract (including any so-called take-or-pay or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any Transferred Entity in respect of the BGI Business that would reasonably be expected to be material to the Transferred Entities, taken as a whole, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person (other than any Transferred Entity) in each case in excess of $10,000,000;
(viii) any Contract that provides for earn-outs or other similar contingent obligations that would reasonably be expected to result in annual payments in 2009 of $5,000,000 or more;
(ix) any Contract have been entered into since January 1, 2007 2013, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of assets of a business, in each case, for aggregate consideration under such Contract in excess of $5 million (excluding, for the acquisition avoidance of doubt, acquisitions or disposition dispositions of a Person or a division of a Personinvestments made pursuant to the Investment Guidelines, or for the acquisition of supplies, products, properties or sale of any other assets (including Intellectual Property), properties, equity interests or rights, other than any such sale or acquisition in the ordinary course of business or of supplies, products, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or any of its Subsidiaries under which the Company or its Subsidiaries have material surviving obligations);
(v) contain provisions that (A)(1) prohibit the payment of dividends or distributions in respect of the share capital or capital stock of the Company or any of its wholly owned Subsidiaries, (2) prohibit the pledging of the share capital or capital stock of the Company or any wholly owned Subsidiary of the Company or (3) prohibit the issuance of any guarantee by the Company or any wholly owned Subsidiary of the Company or (B) restrict the ability of the Company or any of its Subsidiaries to incur or guarantee Indebtedness;
(vi) contain provisions that (A) prohibit the Company or any of its Subsidiaries, or which, following the Closing, would prohibit Parent or any of its Subsidiaries from competing in any material line of business, or (B) grant a right of exclusivity to any Person which prevents the Company or any Subsidiary of the Company, or, following the Closing, Parent or any of its Subsidiaries, from entering any material territory, market or field or freely engaging in business anywhere in the world, in each case, other than Contracts that can be terminated (including such sale restrictive provisions) by the Company or acquisition any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(vii) pursuant to which the Company or any Subsidiary (A) is granted or obtains any right to use any material Intellectual Property (other than standard form Contracts granting rights to use readily available shrink wrap or click wrap software), or (B) has granted any other Person a right to use any Intellectual Property owned by the Company or any Subsidiary;
(viii) pursuant to which the Company or any of its Subsidiaries (A) is granted or obtains any right to use any material Intellectual Property (other than Contracts granting rights to use commercially available software having a replacement cost and annual license of less than $250,000 (e.g., database, enterprise resource planning, business management planning, desktop and similar software) and commercially available, off-the-shelf software (including “shrink-wrap” or “click-wrap” software)), and (B) is restricted in its right to assert, use or register any Intellectual Property owned by the Company or any of its Subsidiaries that would not is material to the conduct of the businesses of the Company and its Subsidiaries as currently conducted (excluding licenses granted to third parties in the ordinary course of business);
(ix) involve or could reasonably be expected to be material involve aggregate payments or receipts by or to the Transferred Entities, taken as a whole; and
(x) any BGI Affiliate Arrangement that will be in effect after the Closing.
(b) Seller has made available to Buyer prior to the date of this Agreement a complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity Company and/or its Subsidiaries in excess of $1,000,000 1 million in 2009 that contains key person provisions pertaining to employees any twelve (12) month period, other than (A) Contracts terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of a Transferred Entity ((i)the Company of any material penalty, (iiB) insurance policies and (iii) being the “Significant Contracts”) is in full force reinsurance and effect, retrocession agreements and is valid and binding on the Transferred Entity that is a party thereto, and, to the Knowledge of Seller, on each other party thereto. There exists no breach or default of any Significant Contract on the part of any Transferred Entity which (with or without notice or lapse of time or both) would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.
(c) As of the date hereof, no Transferred Entity has entered into and is bound by or subject to any of the following:
(i) other than investment management and distribution Contracts treaties entered into in the ordinary course of business consistent with past practiceand (C) Contracts relating to investments made pursuant to the Investment Guidelines;
(x) that outsources any material function or part of the business of the Company or any of its Subsidiaries, any Contract providing for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent other than managing general agency agreements or otherwise that managing general underwriting agreements; or
(xi) would reasonably be expected to, individually or in the aggregate, prevent, materially delay or materially impede the Company’s ability to result in aggregate indemnification payments by a Transferred Entity in excess consummate the Transactions or Parent’s ability to own and/or conduct the business of $10,000,000;the Company or any of its Subsidiaries after the Effective Time.
(b) (i) The Company has previously made available to Parent true and complete copies of each Material Contract, (ii) other than Contracts entered into in each Material Contract is valid and binding on the ordinary course Company and/or any of business, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material its Subsidiaries to the Transferred Entitiesextent such Person is a party thereto, taken as applicable, and to the Knowledge of the Company, each other party thereto, and is in full force and effect, except where the failure to be valid, binding or in full force and effect has not had or would not reasonably be expected to have a whole; or
Material Adverse Effect, (iii) other than Contracts entered into in the ordinary course Company and each of business consistent with past practiceits Subsidiaries, and, to the Knowledge of the Company, any Contract requiring any Transferred Entity (A) other party thereto, has performed all obligations required to co-invest with any other Personbe performed by it under each Material Contract, except where such noncompliance has not had or would not reasonably be expected to have a Material Adverse Effect, (Biv) to provide seed capital or similar investment or (C) to invest in neither the Company nor any investment productof its Subsidiaries has received written notice, in each case in an amount in excess of $5,000,000 individually.
(d) Notwithstanding anything or, to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) Knowledge of the Seller’s Disclosure Schedules is a description Company, verbal notice, of the existence of any “most favored nation” provision in event or condition which constitutes, or, after notice or lapse of time or both, will constitute, a default on the part of the Company or any Investment Advisory Arrangement which provided revenue of its Subsidiaries under any Material Contract, except where such default has not had or would not reasonably be expected to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients have a Material Adverse Effect and (iiv) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) there are no events or conditions which constitute, or, after notice or lapse of time or both, will constitute a default on the Seller’s Disclosure Schedules is a description part of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is counterparty under such Material Contract, except as has not had or would not reasonably be expected to provide for payments to have a Transferred Entity in excess of $10,000,000 in 2009Material Adverse Effect.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard forms.
Appears in 2 contracts
Sources: Merger Agreement (Navigators Group Inc), Merger Agreement (Hartford Financial Services Group Inc/De)
Contracts. (a) Section 4.13(a) of Other than this Agreement and the Seller’s Disclosure Schedules contains agreements contemplated hereby, the Company is not a complete and correct list of all of the following Contracts, in effect as of the date of this Agreement, to which a Transferred Entity is a party, is bound by or subject party to, or pursuant to which the BGI Business nor is conducted (the “Specified Contracts”):it bound by:
(i) any Contract for the placementemployment, distribution contractor or sale of sharesconsulting agreement, units contract or commitment with an employee or individual consultant, contractor, or salesperson, any agreement, contract or commitment to grant any severance or termination pay (in cash or otherwise) to any employee, or any contractor, consulting or sales agreement, contract, or commitment with a firm or other ownership interests of a Fund that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $5,000,000 in 2009organization;
(ii) any administration agreement or any other Contract for the provision lease of administrative services that is reasonably expected to provide for payments to, or provide for payments from personal property having a Transferred Entity in 2009 value in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days 10,000 individually or less$20,000 in the aggregate;
(iii) any Contractagreement, other than a Benefit contract or commitment relating to capital expenditures and Compensation Arrangement, that is reasonably expected to provide for involving future payments to, or provide for payments from, a Transferred Entity in excess of $10,000,000 10,000 individually or $20,000 in 2009the aggregate;
(iv) any Contract prohibiting agreement, contract or materially restricting commitment relating to the ability disposition or acquisition of assets or any Transferred Entity to conduct its business, to engage interest in any business or operate in any geographical area or to compete with any Personenterprise;
(v) any Contract for any joint venturemortgages, strategic allianceindentures, partnership guarantees, loans or similar arrangement involving a sharing of profits credit agreements, security agreements or expenses other agreements or payments based on revenues, profits, or assets under management of any Affiliate of Parent or any Fund that is reasonably expected to account for revenue instruments relating to the BGI Business in 2009 in excess borrowing of $10,000,000 on an annual (money, extension of credit or annualized) basis or that would reasonably be expected to be material to the Transferred Entities, taken as a wholesecurity interest;
(vi) any Contract relating to agreement containing any Indebtedness of a Transferred Entity in an amount in excess of $5,000,000, other than: (A) any mortgage or similar Indebtedness secured by specific property owned by or on behalf of a Clientindemnification obligations; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closing;[+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES
(vii) any Contract (including any so-called take-or-pay or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations powers of any Transferred Entity in respect of the BGI Business that would reasonably be expected to be material to the Transferred Entities, taken as a whole, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person (attorney other than any Transferred Entity) in each case in excess of $10,000,000those to legal counsel or representatives relating to registering or representing the Company's Intellectual Property Rights;
(viii) any agreement containing any price protection, "most favored nation" or similar provisions;
(ix) any partnership, joint venture, strategic alliance or similar agreement;
(x) any Contract that provides for earn-outs to which an officer or director of the Company or Principal Stockholder (or any parent, sibling, descendant or spouse of any of such persons, or any trust, partnership or corporation in which any of such persons has or has had an interest) is a party;
(xi) any agreement pursuant to which the Company has advanced or loaned any amount to any Company Stockholder or any director, officer, employee, or consultant of the Company other than business travel advances in the Ordinary Course of Business, consistent with past practice;
(xii) any dealer, distribution, joint marketing, development agreement, sales representative, original equipment manufacturer, value added, remarketer, reseller, or independent software vendor, or other similar contingent agreement for marketing, sales, provision or distribution of the Company's products, technology or services;
(xiii) any contract, license and or other agreements to which the Company is a party with respect to any Intellectual Property Rights or services;
(xiv) any contract, license or other agreements wherein or whereby the Company has agreed to, or assumed, any obligation or duty to warrant, indemnify, reimburse, hold harmless, guaranty or otherwise assume or incur any obligation or liability or provide a right of rescission with respect to the infringement or misappropriation by the Company or such other person of the Intellectual Property Rights or other rights of any person other than the Company; or
(xv) any other agreement, contract or commitment that involves $10,000 individually or $20,000 in the aggregate or more and is not cancelable without penalty within 30 days.
(b) Following the Effective Time, and, if applicable, the effective time of the Second Merger (assuming the Second Merger is consummated at the Effective Time), neither Parent nor Merger Sub shall have any additional liability, expense or future payment obligations related to the agreements, contracts or commitments listed on Section 3.14(a) of the Disclosure Schedule other than the obligations, expenses or payments expressly stated in such agreements, contracts or commitments.
(c) The Company is in compliance in all material respects with and has not materially breached, violated or defaulted under, or received notice that it has materially breached, violated or defaulted under, any terms or conditions of any Contract, nor has there occurred any event or condition that could reasonably constitute such a material breach, violation or default with the lapse of time, giving of notice or both, in each case other than material breaches, violations or defaults that individually or in the aggregate would not reasonably be expected to result in annual payments in 2009 of $5,000,000 or more;
(ix) any Contract entered into since January 1, 2007 for the acquisition or disposition of a Person or a division of a Person, or for the acquisition or sale of any assets (including Intellectual Property), properties, equity interests or rights, other than any such sale or acquisition in the ordinary course of business or any such sale or acquisition that would not reasonably be expected to be material liability to the Transferred Entities, taken as a whole; and
(x) any BGI Affiliate Arrangement that will be in effect after the Closing.
(b) Seller has made available to Buyer prior to the date of this Agreement a complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this AgreementCompany. Each (i) Specified ContractContract is valid, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis binding, fully enforceable and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effect, and the Company is valid and binding on the Transferred Entity that is a party theretonot subject to any default thereunder, and, nor to the Knowledge of Seller, on each other the Company is any party thereto. There exists no breach or default of any Significant Contract on the part of any Transferred Entity which (with or without notice or lapse of time or both) would, individually or in the aggregate, reasonably be expected to be material obligated to the Transferred Entities, taken as a whole. No Transferred Entity has received Company pursuant to any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.
(c) As of the date hereof, no Transferred Entity has entered into and is bound by or such Contract subject to any of the following:
(i) other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practice, any Contract providing for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000;
(ii) other than Contracts entered into in the ordinary course of business, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a whole; or
(iii) other than Contracts entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individuallydefault thereunder.
(d) Notwithstanding anything The Company has fulfilled all material obligations required to have been performed by the Company prior to the contrary contained in this Agreementdate hereof pursuant to each Contract, in no event shall Specified Contracts include or cured any Investment Advisory Arrangementfailure to fulfill any such material obligation.
(e) Attached as The Company has delivered to Parent true, correct and complete copies of all Contracts listed in Section 4.13(e3.14(a) of the Seller’s Company Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller Schedule, including all amendments, supplements, exhibits and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard forms.ancillary agreements. [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Biomira CORP), Agreement and Plan of Reorganization (Biomira Inc)
Contracts. (a) Except for this Agreement, Benefit Plans and Contracts filed with the SEC prior to the date hereof or as set forth in Section 4.13(a4.18(a) of the Seller’s Company Disclosure Schedules contains a complete and correct list Schedule, neither the Company nor any of all of the following Contractsits Subsidiaries is, in effect as of the date of this Agreement, party to which a Transferred Entity is a party, is or bound by or subject to, or pursuant to any Contract which the BGI Business is conducted (the “Specified Contracts”):is:
(i) any Contract for a “material contract” required to be filed by the placement, distribution or sale Company pursuant to Item 601(b)(10) of shares, units or other ownership interests of a Fund that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $5,000,000 in 2009Regulation S-K under the Securities Act;
(ii) a Contract which, to the knowledge of the Company, contains any administration agreement covenant binding upon the Company or any of its Subsidiaries that restricts the ability of the Company or any of its Subsidiaries to compete in any business in which the Company or its Subsidiaries is engaged or with any Person or in any geographic area that, in each case, are material to the Company and its Subsidiaries, taken as a whole, except for any such Contract that may be cancelled (and with respect to which such restrictions shall immediately be terminated in connection with such cancellation) without any penalty or other Contract for liability to the provision Company or any of administrative services that is reasonably expected to provide for payments to, or provide for payments from a Transferred Entity in 2009 in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity Subsidiaries upon notice of 180 60 days or less;
(iii) any Contract, other than a Benefit and Compensation Arrangement, that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $10,000,000 in 2009;
(iv) any Contract prohibiting or materially restricting the ability of any Transferred Entity to conduct its business, to engage in any business or operate in any geographical area or to compete with any Person;
(v) any Contract for any joint venture, strategic alliancepartnership, limited liability or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or similar arrangement involving a sharing of profits or expenses or payments based on revenues, profits, or assets under management of any Affiliate of Parent or any Fund joint venture that is reasonably expected to account for revenue to the BGI Business in 2009 in excess of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be material to the Transferred Entitiesbusiness of the Company and its Subsidiaries, taken as a whole;
(viiv) an indenture, credit agreement or loan agreement pursuant to which any Contract relating to any Indebtedness of a Transferred Entity in an amount indebtedness for borrowed money in excess of $5,000,00010,000,000 of the Company or any of its Subsidiaries is outstanding or may be incurred, other than: than any such Contract between or among any of the Company and any of its Subsidiaries;
(Av) a Contract which was entered into after December 31, 2007 or which is not yet consummated for the acquisition or disposition, directly or indirectly (by merger or otherwise), of capital stock or other equity interests of another Person or of assets constituting a business for aggregate consideration in excess of $50,000,000;
(vi) a Contract which, by its terms, calls for aggregate payments by the Company and its Subsidiaries under such Contract of more than $100,000,000 over the remaining term of such Contract (other than this Agreement, Contracts subject to clause (iv) above, purchase orders for the purchase of inventory, services or equipment in the ordinary course of business consistent with past practices, leases or licenses of real property and Contracts that may be cancelled without penalty or other liability to the Company or any mortgage of its Subsidiaries upon notice of 60 days or similar Indebtedness secured by specific property owned by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closingless);
(vii) a Contract with respect to an acquisition or divestiture of capital stock or other equity interests of another Person or of assets constituting a business pursuant to which the Company or any Contract (including any soof its Subsidiaries has continuing indemnification, “earn-called take-or-pay out” or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtednessother contingent payment obligations, liabilities or obligations of any Transferred Entity in respect of the BGI Business each case, that would reasonably be expected to be material to the Transferred Entities, taken as a whole, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person (other than any Transferred Entity) result in each case payments in excess of $10,000,000;
(viii) to the knowledge of the Company, contains any Contract that provides for earn-outs or other similar contingent obligations that would reasonably be expected to result in annual payments in 2009 of $5,000,000 or more;covenant granting “most favored nation” status; or
(ix) any Contract entered into since January 1, 2007 is a lease for the acquisition one or disposition more parcels of a Person real property that is or a division of a Person, or for the acquisition or sale of any assets (including Intellectual Property), properties, equity interests or rights, other than any such sale or acquisition in the ordinary course of business or any such sale or acquisition that would not reasonably be expected to be are material to the Transferred Entities, taken conduct of the business. Each such Contract described in clauses (i) through (ix) is referred to as a whole; and
(x) any BGI Affiliate Arrangement that will be in effect after the Closing“Material Contract.”
(b) Seller has made available to Buyer prior to the date of this Agreement a complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld Except as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effect, and is valid and binding on the Transferred Entity that is a party thereto, and, to the Knowledge of Seller, on each other party thereto. There exists no breach or default of any Significant Contract on the part of any Transferred Entity which (with or without notice or lapse of time or both) wouldwould not, individually or in the aggregate, reasonably be expected to be material have a Company Material Adverse Effect, (i) each of the Material Contracts is valid and binding on the Company and each of its Subsidiaries party thereto and, to the Transferred Entitiesknowledge of the Company, taken as each other party thereto and is in full force and effect; provided that (A) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (B) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding thereof may be brought and (ii) there is no default under any Material Contract by the Company or any of its Subsidiaries, or, to the knowledge of the Company, any other party thereto, and no event has occurred that with the lapse of time or the giving of notice or both would constitute a wholedefault thereunder by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto. No Transferred Entity The Company has received any written notice made available to Parent true and complete copies of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant each Material Contract, the termination, failure to renew including any amendments or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a wholemodifications thereto.
(c) As The aggregate indebtedness for borrowed money that is outstanding or may be incurred under Contracts that would be required to be listed under section (iv) of Section 4.18(a) of the date hereof, no Transferred Entity has entered into and is bound by or subject to any Company Disclosure Letter if clause (iv) of the following:
(iSection 4.18(a) other than investment management and distribution did not contain an exception for Contracts entered into in the ordinary course of business consistent with past practice, any Contract providing that relate to obligations for borrowed money that do not exceed $10,000,000 but are not listed under such section of Section 4.18(a) of the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity Company Disclosure Letter is not in excess of $10,000,000;
(ii) other than Contracts entered into in the ordinary course of business, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a whole; or
(iii) other than Contracts entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individually50,000,000.
(d) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard forms.
Appears in 2 contracts
Sources: Merger Agreement (RenPac Holdings Inc.), Merger Agreement (Pactiv Corp)
Contracts. (a) Section 4.13(a) Schedule 2.3.14 of the Seller’s Disclosure Schedules contains a complete and correct list of all listing of the following Contractsundischarged written (or, to the knowledge of the Principal Stockholder, oral) contracts, agreements, leases and other instruments to which the Company is a party:
(a) agreements for the employment for any period of time whatsoever, or in effect regard to the employment, or restricting the employment, including any termination, severance or change in control agreements of any employee of the Company who earns more than $75,000 per year;
(b) consulting agreements where the payment thereunder is in excess of $100,000 per year and which have an unexpired term in excess of one year;
(c) collective bargaining agreements;
(d) contracts or arrangements providing for bonuses, options, deferred compensation or stock appreciation rights;
(e) leases or subleases, either as lessee or sublessee, lessor or sublessor, of personal property, where the lease or sublease provides for an annual rent in excess of $100,000 and has an unexpired term in excess of one year;
(f) service agreements affecting any of the assets of any of the Company where the charges are reasonably expected to be in excess of $100,000 and which has an unexpired term as of the date of this Agreement, to which a Transferred Entity is a party, is bound by or subject to, or pursuant to which the BGI Business is conducted (the “Specified Contracts”):
(i) any Contract for the placement, distribution or sale of shares, units or other ownership interests of a Fund that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity hereof in excess of $5,000,000 in 2009one year;
(iig) any administration agreement loan agreements, promissory notes, indentures, bonds, security agreements, guarantees or any obligations for borrowed money or other Contract for the provision of administrative services that is reasonably expected to provide for payments to, or provide for payments from a Transferred Entity in 2009 in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or less;
(iii) any Contract, other than a Benefit and Compensation Arrangement, that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $10,000,000 in 2009;
(iv) any Contract prohibiting or materially restricting the ability of any Transferred Entity to conduct its business, to engage in any business or operate in any geographical area or to compete with any Person;
(v) any Contract for any joint venture, strategic alliance, partnership or similar arrangement instruments involving a sharing of profits or expenses or payments based on revenues, profits, or assets under management of any Affiliate of Parent or any Fund that is reasonably expected to account for revenue to the BGI Business in 2009 in excess of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be material to the Transferred Entities, taken as a whole;
(vi) any Contract relating to any Indebtedness of a Transferred Entity in an amount in excess of $5,000,000, other than: (A) any mortgage or similar Indebtedness secured by specific property owned by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closing100,000;
(viih) any Contract (including any so-called take-or-pay partnership, joint venture or keep well agreements) under which (A) any Person has directly other similar agreement or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any Transferred Entity in respect of the BGI Business that would reasonably be expected to be material to the Transferred Entities, taken as a whole, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person (other than any Transferred Entity) in each case in excess of $10,000,000arrangement;
(viiii) any Contract that provides agreement containing any covenant or provision prohibiting the Company from engaging in any line or type of business (except for earn-outs such agreements which shall not apply to the Company upon Closing) or other similar contingent obligations that would reasonably be expected to result in annual payments in 2009 of $5,000,000 or morecompeting with any person;
(ixj) any Contract entered into since January 1agreement under which it has advanced or loaned any amount to any of its directors, 2007 for the acquisition or disposition of a Person or a division of a Person, or for the acquisition or sale of any assets (including Intellectual Property), properties, equity interests or rights, other than any such sale or acquisition in officers and employees outside the ordinary course of business or its business;
(k) any such agreement under which a sale or acquisition of any of the Real Estate that would not reasonably be expected to be is material to the Transferred Entities, taken as a whole; andoperation of the Business is pending;
(xl) any BGI Affiliate Arrangement indemnification agreement by the Company running to any person that will be in effect after the Closing.
(b) Seller has made available to Buyer prior to the date of this Agreement a complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effect, and is valid and binding on the Transferred Entity that is a party thereto, and, to the Knowledge of Seller, on each other party thereto. There exists no breach or default of any Significant Contract on the part of any Transferred Entity which (with or without notice or lapse of time or both) wouldinvolves, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.
(c) As contingent liability of the date hereofCompany of $100,000 or more, no Transferred Entity has entered into and is bound by or subject to any of the following:
(i) other than investment management and distribution Contracts in connection with customer contracts, agreements entered into in the ordinary course of business consistent with past practice, any Contract providing for the indemnification of any Person or with respect to liabilities, whether absolute, accrued, contingent directors or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess executive officers of $10,000,000the Company;
(iim) any long-term or continuing agreements or arrangements with respect to discounts or allowances or extended payment terms that provide for the receipt or expenditure following the date hereof of more than $500,000, other than Contracts entered into purchase orders and sales orders in the ordinary course of business, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a whole; or
(iiin) any other agreements that provide for the receipt or expenditure following the date hereof of more than $500,000, other than Contracts entered into purchase orders and sales orders in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individuallybusiness.
(d) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard forms.
Appears in 2 contracts
Sources: Exchange Agreement (Royster-Clark Nitrogen Realty LLC), Exchange Agreement (Royster-Clark Nitrogen Realty LLC)
Contracts. (a) Except for this Agreement and for Contracts filed as exhibits to the Filed SEC Documents, Section 4.13(a4.11(a) of the Seller’s Company Disclosure Schedules contains Letter sets forth a true and complete and correct list of all each of the following Contracts, Contracts to which the Company or any of its Subsidiaries is a party and that is in effect as of the date of this Agreement, to which a Transferred Entity is a party, is bound by or subject to, or pursuant to which the BGI Business is conducted (the “Specified Contracts”):hereof:
(i) any each Contract for that would be required to be filed by the placement, distribution or sale Company as a “material contract” pursuant to Item 601(b)(10) of shares, units or other ownership interests of a Fund that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $5,000,000 in 2009Regulation S-K promulgated by the SEC;
(ii) each loan agreement, credit agreement, note, debenture, bond, indenture and other similar Contract pursuant to which any administration agreement Indebtedness of the Company or any other Contract for the provision of administrative services that its Subsidiaries is reasonably expected to provide for payments to, outstanding or provide for payments from a Transferred Entity may be incurred in 2009 an aggregate principal amount in excess of $10,000,000 and by 250,000, or which obligates the Company or any of its terms is not terminable without penalty by a Transferred Entity upon notice Subsidiaries to make any loans, advances or capital contributions to, or investments in, any other person, other than the Company or any of 180 days or lessits wholly owned Subsidiaries;
(iii) any Contract, each Contract (other than a Benefit Contract solely among the Company and Compensation Arrangement, its wholly owned Subsidiaries) that is reasonably expected to provide (A) by its terms calls for payments toby or to the Company or any of its Subsidiaries of more than $1,000,000 in the aggregate during the twelve (12)-month period ended on the date hereof, or provide (B) by its terms, contractually requires aggregate payments to or by the Company or any of its Subsidiaries under such Contract of more than $1,000,000 over the remaining term of such Contract, in each case other than (x) Contracts governing Company Equity Awards and/or (y) Contracts relating to the employment of, or the performance of services by, any director, officer, employee, consultant or independent contractor of the Company or a Subsidiary of the Company that are at-will or are terminable by the Company or the relevant Subsidiary without liability (other than payment of compensation for payments from, a Transferred Entity in excess services rendered through the date of $10,000,000 in 2009termination);
(iv) each Contract to which the Company or any Contract prohibiting of its Subsidiaries is a party entered into since January 31, 2015 for the acquisition or materially restricting disposition by the ability Company or any of its Subsidiaries of any Transferred Entity to conduct properties, rights or assets with an aggregate value in one or a series of related transactions in excess of $500,000 (except for acquisitions of supplies and inventory, dispositions of inventory, and dispositions of equipment that is no longer used in the operations of the Company or any of its Subsidiaries, and except for sales of products or services, in each case, in the ordinary course of business, to engage in any business or operate in any geographical area or to compete with any Person);
(v) any Contract for pursuant to which the Company or any joint ventureof its Subsidiaries has continuing indemnification, strategic alliance, partnership “earn-out” or similar arrangement involving a sharing of profits or expenses or payments based on revenues, profits, or assets under management of any Affiliate of Parent or any Fund that is reasonably expected to account for revenue to the BGI Business in 2009 in excess of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be material to the Transferred Entities, taken contingent payment obligations outstanding as a whole;
(vi) any Contract relating to any Indebtedness of a Transferred Entity in an amount in excess of $5,000,000, other than: (A) any mortgage or similar Indebtedness secured by specific property owned by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closing;
(vii) any Contract (including any so-called take-or-pay or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any Transferred Entity in respect of the BGI Business that would reasonably be expected to be material to the Transferred Entities, taken as a whole, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person (other than any Transferred Entity) in each case in excess of $10,000,000;
(viii) any Contract that provides for earn-outs or other similar contingent obligations that would reasonably be expected to result in annual payments in 2009 of $5,000,000 or more;
(ix) any Contract entered into since January 1, 2007 for the acquisition or disposition of a Person or a division of a Person, or for the acquisition or sale of any assets (including Intellectual Property), properties, equity interests or rights, other than any such sale or acquisition in the ordinary course of business or any such sale or acquisition that would not reasonably be expected to be material to the Transferred Entities, taken as a whole; and
(x) any BGI Affiliate Arrangement that will be in effect after the Closing.
(b) Seller has made available to Buyer prior to the date of this Agreement a complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effect, and is valid and binding on the Transferred Entity that is a party thereto, and, to the Knowledge of Seller, on each other party thereto. There exists no breach or default of any Significant Contract on the part of any Transferred Entity which (with or without notice or lapse of time or both) would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.
(c) As of the date hereof; provided that the foregoing reference to continuing indemnification obligations shall not include indemnification obligations that (A) with respect to Contracts that do not involve Intellectual Property Rights, no Transferred Entity has entered into and is bound by or subject to any of the following:
(i) other than investment management and distribution Contracts were entered into in the ordinary course of business consistent with past practice, any Contract providing for the indemnification of any Person and (B) with respect to liabilitiesContracts involving Intellectual Property Rights, whether absoluteare set forth in customer, accrued, contingent or otherwise that would reasonably be expected distributor and reseller agreements entered into in the ordinary course of business and which indemnification obligations relate to result in aggregate indemnification payments by a Transferred Entity in excess infringement of $10,000,000Intellectual Property Rights thereunder);
(iivi) each Contract that (A) restricts the ability of the Company or any of its Subsidiaries to compete with any business or in any geographical area or to solicit customers, (B) restricts the right of the Company or any of its Subsidiaries to sell to or purchase from any specific person or category of persons or any specific industry or market, (C) restricts the right of the Company or any of its Subsidiaries to hire any person, other than Contracts non-solicitation provisions restricting the hiring of employees of the counterparty contained in non-material vendor, customer, confidentiality, recruiting, outsourcing or supply agreements entered into in the ordinary course of business, (D) grants any type counterparty thereto or any other person “most favored nation” or “preferred” customer status or (E) grants any counterparty exclusivity on any basis;
(vii) each Contract that is a settlement, conciliation or similar Contract (A) with any Governmental Authority, (B) pursuant to which the Company or any of its Subsidiaries is obligated after the date hereof to make any payments to any Governmental Authority or (C) that would otherwise limit the operation of the Company or any of its Subsidiaries (or Parent or any of its Affiliates) in any material respect after the Offer Closing or the Merger Closing;
(viii) each Contract to cap which the Company or any of its Subsidiaries is a party involving the development for, or licensing to, the Company or any of its Subsidiaries of any material Intellectual Property or material Intellectual Property Rights or pursuant to which the Company or any of its Subsidiaries obtains any right to use, or covenant not to be sued under, any material Intellectual Property Rights (except for (A) licenses of Commercially Available Software and Open Source Materials and (B) employee inventions and confidentiality agreements and consulting and contractor agreements that, in each case, were entered into in the Ordinary Course of Business);
(ix) each Contract pursuant to which the Company or any of its Subsidiaries grants any right to use, or covenant not to be sued under, any Intellectual Property Rights (other than customer, distributor, reseller, sales agent, marketing, contract development, contract manufacturing, logistics, and product support agreements entered into in the ordinary course of business);
(x) each Contract obligating the Company or any of its Subsidiaries to pay any other person royalties, fees, share fees commissions or other payments, share expenses, waive fees or amounts (excluding sales commissions payable to reimburse or assume any or all fees or expenses thereunder that in any such case would be material employees and sales agents according to the Transferred EntitiesCompany’s commissions plan made available to Parent) upon or for any use by the Company or any of its Subsidiaries of any Intellectual Property Rights (excluding Commercially Available Software) or upon the sale, taken as a whole; orlease, license, distribution, provision or other disposition of any Company Product;
(iiixi) each Contract that 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;
(xii) each Contract that contains a standstill or similar agreement pursuant to which the Company or any of its Subsidiaries has agreed not to acquire assets or securities of a third party (A) entered into since January 31, 2015 or (B) which contains standstill or similar obligations that have not yet terminated;
(xiii) each Contract with any director, executive officer (as such term is defined in the Exchange Act) or five percent (5%) stockholder of the Company or any of their respective Affiliates (other than Contracts the Company or any of its Subsidiaries) or immediate family members;
(xiv) each Contract that grants to any person any right of first offer, right of first refusal or option to purchase, lease, sublease, use, possess or occupy all or any substantial part of the material assets, rights or properties of the Company or any of its Subsidiaries;
(xv) (A) any Contract with a Top Supplier or Top Customer and (B) any Contract which involves any material long-term commitment to any supplier for a term in excess of three (3) years from the date hereof;
(xvi) each Contract with any commercial agents, channel partners, distributors, resellers or other third-party sales intermediaries that relates to sales of Company products (other than customer, distributor, reseller and sales agent agreements entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity that (A) relate to co-invest with any other Person, sales within the United States or (B) relate to provide seed capital sales outside the United States of less than $1,500,000 in the aggregate in the Company’s fiscal year ended January 31, 2017);
(xvii) each Contract with a university or similar investment academic institution pursuant to which the Company or any Subsidiary has utilized or will utilize any funding, personnel or facility or other resources of such person in connection with any research or development activities;
(Cxviii) each Company Government Contract or Company Government Subcontract, direct as a prime contractor, or indirect as a subcontractor through a third-party prime contractor, including through a reseller, distributor or similar third party pursuant to invest in any investment product, in each case in an amount a master agreement providing for annual aggregate payments to the Company and its Subsidiaries under such master agreement in excess of $5,000,000 individually2,000,000, and any subcontract issued to a third party under a Company Government Contract; provided that, for the purposes of this subparagraph (xviii), the term “Governmental Authority” as used in the definitions of “Company Government Contract” and “Company Government Subcontract” shall be limited to Contracts with any U.S. federal governmental, administrative, judicial, arbitral, legislative, executive, regulatory or self-regulatory authority, instrumentality, agency, commission or body;
(xix) each Contract that relates to a partnership, joint venture or similar arrangement; and
(xx) any Contract not described in any other subsection of this Section 4.11(a) which, if breached, terminated or not renewed, would have a Material Adverse Effect. Each Contract of the type described in this Section 4.11(a) (or set forth on Section 4.11(a) of the Company Disclosure Letter or filed as an exhibit to the Filed SEC Documents) is referred to herein as a “Material Contract”.
(db) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller The Company has made available to Buyer Parent true, complete and unredacted copies of each Material Contract. Each of the Material Contracts is valid and binding on the Company or its Subsidiar(ies) party thereto and, to the Knowledge of the Company, each other party thereto, and is in full force and effect, except for such failures to be valid and binding or to be in full force and effect that have not had and would not have, individually or in the aggregate, a true Material Adverse Effect. The Company and complete copy each of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support ContractsSubsidiaries, in each case provided and, to certain funds and clients the Knowledge of the securities lending Company, each other party thereto, has performed all material obligations required to be performed by it under each Material Contract in all material respects. There is no default under any Material Contract by the Company or short-term cash businesses any of its Subsidiaries or, to the Knowledge of the BGI BusinessCompany, any other party thereto, and none no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a default on the part of the Contracts used by Company or any of its Subsidiaries or, to the Transferred Entities for Knowledge of the Company, any other party thereto under any such purposes materially deviates from Material Contract, nor has the Company or any of its Subsidiaries received any notice of any such standard formsdefault, event or condition, except where any such default, event or condition, individually or in the aggregate, has not had and would not have a Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Nimble Storage Inc), Merger Agreement (Hewlett Packard Enterprise Co)
Contracts. (a) Section 4.13(a4.16(a) of the Seller’s Seller Disclosure Schedules Schedule lists (or, as applicable, contains a complete and correct list of all cross-reference to another Section of the Seller Disclosure Schedule that lists) every binding Contract of the types in the following list to which the Company or any Company Subsidiary is, as of the date hereof, a party or by which any of their respective properties or assets are bound (all such Contracts, the “Material Contracts”):
(i) (x) the master framework agreements and any ancillary Contracts between the Company or any Company Subsidiary and the Top Customers of the Business, (y) the supply agreements and any related Contracts between the Company or any Company Subsidiary and the Top Suppliers of the Business, and (z) any other Contract that is required by its terms or is currently expected to result in effect the payment or receipt by the Business of more than $30,000,000 in the current fiscal year or in any one-year period over its remaining term;
(ii) any Contract under which the Company or any Company Subsidiaries has created, incurred, assumed or guaranteed any indebtedness for borrowed money, or any capitalized lease obligations in excess of $500,000;
(iii) any Contract that requires capital expenditures in excess of $1,000,000 and is not fully performed as of the date of this Agreement, to which a Transferred Entity is a party, is bound by or subject to, or pursuant to which the BGI Business is conducted (the “Specified Contracts”):
(i) any Contract for the placement, distribution or sale of shares, units or other ownership interests of a Fund that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $5,000,000 in 2009;
(ii) any administration agreement or any other Contract for the provision of administrative services that is reasonably expected to provide for payments to, or provide for payments from a Transferred Entity in 2009 in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or less;
(iii) any Contract, other than a Benefit and Compensation Arrangement, that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $10,000,000 in 2009;
(iv) any Contract prohibiting involving an amount in excess of $300,000 entered into with (x) an officer or materially restricting director of Seller, the ability Company or any Company Subsidiary or any Affiliate of Seller, the Company or any Transferred Entity to conduct its businessCompany Subsidiary (other the Company and the Company Subsidiaries) or (y) any entity controlled by an officer or director of Seller, to engage the Company or any Company Subsidiary, other than, in any business or operate in any geographical area or to compete either case, employment agreements with any PersonEmployee;
(v) any Contract for any joint venture, strategic alliance, partnership or similar arrangement involving a sharing of profits or expenses or payments based on revenues, profits, or assets under management of any Affiliate of Parent or any Fund that is reasonably expected to account for revenue to has an undertaking that restricts the BGI Business in 2009 any material respect from engaging in excess any business activity (including any restriction from competing in any line of $10,000,000 on an annual (business in any geographic region in the world or annualized) basis or that would reasonably be expected to be material to the Transferred Entities, taken as a wholewith any Person);
(vi) any Contract relating to with any Indebtedness Governmental Authority that would prohibit Seller, the Company or any Company Subsidiary from relocating, closing or terminating any of a Transferred Entity in an amount in excess of $5,000,000, other than: (A) any mortgage the Business’s operations or similar Indebtedness secured by specific property owned by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closingfacilities;
(vii) any Contract (currently expected to result in the payment or receipt by the Business of more than $10,000,000 in the current fiscal year or in any one-year period over its remaining term which grants any exclusive rights to any customer or supplier of the Business, including distribution rights, “most-favored nation” rights or rights of first refusal or contains any so-called take-or-pay or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations provision that requires the Business to purchase its total requirements of any Transferred Entity product or service from a third party, Guarantor or Subsidiary of Guarantor or that contain “take or pay” provisions (excluding provisions providing for liability in respect the event of the BGI Business that would reasonably be expected to be material to the Transferred Entities, taken as cancellation of orders inside a whole, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person (other than any Transferred Entity) in each case in excess of $10,000,000specified lead time);
(viii) any Contract that provides all distribution, dealer, representative or sales agency agreements with the five largest counterparties to such agreements to the Business measured by dollar value of the purchases made by the Business from such supplier during the nine months ended on the Balance Sheet Date;
(ix) all leases of Equipment relating to the Business providing for earn-outs or other similar contingent obligations that would reasonably be expected to result in annual lease payments in 2009 excess of $5,000,000 1,000,000 per fiscal year for any lease or group of related leases;
(x) any employment or consulting agreement with any individual listed on Section 1.01(e) of the Seller Disclosure Schedule providing for annual cash compensation of $300,000 or more;
(ixxi) all Contracts pursuant to which the Company or any Contract Company Subsidiary receives or grants a license to Intellectual Property from or to any other Person (including Contracts entered into since January 1, 2007 by Seller or its Affiliates primarily for the acquisition or disposition of a Person or a division of a Business under which Company Intellectual Property is licensed to any other Person, but excluding other Contracts entered into by Seller or for the acquisition or sale of any assets its Affiliates (including Intellectual Property), properties, equity interests or rights, other than any such sale the Company or acquisition the Company Subsidiaries)); in each case, that are material to the conduct or operation of the Business (other than (x) commercially available software or software-as-a-service agreements or (y) licenses or grants of rights ancillary to commercial agreements entered into in the ordinary course of business (including with respect to manufacturing, customer, supply, distribution, retail and marketing agreements));
(xii) any Contract that establishes a joint venture, partnership, strategic alliance or other similar arrangement that involves a sharing of profits, revenue or expenses with any such sale third party, Guarantor or acquisition Subsidiary of Guarantor;
(xiii) any agreement that would not reasonably be expected relates to be material settlement or conciliation of any Actions, the performance of which will involve payment on or after the Closing Date of consideration in excess of $5,000,000 or will, on or after the Closing Date impose (or continue to impose) any injunctive or similar equitable relief on the Transferred EntitiesCompany, taken as a wholethe Company Subsidiaries or the Business; and
(xxiv) any BGI Contract that is an agreement with any Affiliate Arrangement of Seller (other than the Company or the Company Subsidiaries) that will not be terminated prior to Closing. For the avoidance of doubt, no representation or warranty is made in effect after the Closingthis Section 4.16 regarding any Contracts that are Excluded Assets.
(b) Except for terminations in accordance with the terms of such agreements after the date hereof, each agreement listed on Section 4.16(a) of the Seller Disclosure Schedule is a legal, valid and binding obligation of the Company or one of the Company Subsidiaries, as the case may be, enforceable in all material respects against such Person in accordance with its terms and, to Seller’s Knowledge, each other party thereto, subject in all cases to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law. Seller has made available to Buyer prior to the date of this Agreement Purchaser a complete and correct copy of each written Specified Contract agreement listed on Section 4.16(a) of the Seller Disclosure Schedule, in each case as amended, supplemented or otherwise modified through (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redactedand including) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts except for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract redactions that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effect, and is valid and binding are apparent on the Transferred Entity that is a party thereto, and, to the Knowledge face of Seller, on each other party thereto. There exists no breach or default of any Significant Contract on the part of any Transferred Entity which (with or without notice or lapse of time or both) would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a wholesuch copy.
(c) As of the date hereof, to Seller’s Knowledge, no Transferred Entity has entered into and is bound by or subject party to any agreement listed on Section 4.16(a) of the following:
(i) other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practice, Seller Disclosure Schedule has exercised any Contract providing for the indemnification of any Person termination rights with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000;
(ii) other than Contracts entered into in the ordinary course of business, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a whole; or
(iii) other than Contracts entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individuallythereto.
(d) Notwithstanding anything to Neither the contrary contained Company nor any of the Company Subsidiaries is in this Agreement, in no event shall Specified Contracts include material breach or material default under any Investment Advisory Arrangement.
(e) Attached as agreement listed on Section 4.13(e4.16(a) of the Seller Disclosure Schedule and, to the Knowledge of Seller’s Disclosure Schedules , no other party to any such agreement is a description of any “most favored nation” provision in any Investment Advisory Arrangement material breach or material default thereunder which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangementshas not been waived.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard forms.
Appears in 2 contracts
Sources: Acquisition Agreement (Arris Group Inc), Acquisition Agreement (Arris Group Inc)
Contracts. (a) Section 4.13(a) 4.15 of the Seller’s Company Disclosure Schedules contains a complete and correct list of all Letter lists each of the following Contracts, in effect as types of the date of this Agreement, Contracts to which a Transferred Entity the Company or any of its Subsidiaries is a party, is bound by or subject toas of the Agreement Date, or pursuant to by which the BGI Business any of their respective properties or assets is conducted (the “Specified Contracts”):bound:
(i) any employment or consulting Contract for the placement, distribution or sale of shares, units with any executive officer or other ownership interests employee or independent contractor of a Fund that is reasonably expected to provide for payments to, the Company or provide for payments from, a Transferred Entity member of the Company Board earning an annual salary from Company and its Subsidiaries in excess of $5,000,000 the lowest annual base salary reported in 2009the Company’s most recent annual report on Form 10-K or definitive proxy statement for any of the Company’s “named executive officers,” as such term is defined in Item 402(a)(3) of Regulation S-K of the Securities Act, other than those that are terminable by the Company or any of its Subsidiaries on no more than thirty (30) days notice without liability or financial obligation to the Company;
(ii) any administration agreement or Company Plan, any other Contract for of the provision benefits of administrative services that is reasonably expected to provide for payments towhich will be increased, or provide for payments from a Transferred Entity in 2009 in excess the vesting of $10,000,000 and benefits of which will be accelerated, by its terms is not terminable without penalty the announcement or consummation of any of the transactions contemplated by a Transferred Entity upon notice this Agreement or the value of 180 days or lessany of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(iii) any Contract, Contract (other than a Benefit and Compensation Arrangement, that is reasonably expected to provide Government Contract) providing for payments to, or provide for payments from, a Transferred Entity in excess of $10,000,000 in 2009;
(iv) any Contract prohibiting or materially restricting the ability of any Transferred Entity to conduct its business, to engage in any business or operate in any geographical area or to compete with any Person;
(v) any Contract for any joint venture, strategic alliance, partnership or similar arrangement involving a sharing of profits or expenses or payments based on revenues, profits, or assets under management of any Affiliate of Parent or any Fund that is reasonably expected to account for revenue to the BGI Business in 2009 in excess of $10,000,000 on an annual (or annualized) basis or that indemnification which would reasonably be expected to be material to the Transferred EntitiesCompany and its Subsidiaries, taken as a whole or any guaranty that is material to the Company and its Subsidiaries, taken as a whole, other than any guaranty by the Company of any of its wholly-owned Subsidiaries’ obligations or any Contract providing for indemnification entered into in connection with the distribution, sale or license or services or products in the ordinary course of business, which indemnification, in the case of any customer agreement, does not materially differ from the provisions embedded in the Company’s standard forms of customer agreements as made available to Parent and the agreements contained in the folders named “04.01.05 Customer Agmts ($2MM or above)”, “04.01.05 New Customer Agmts” or “04.01.11 Customer Agmts on Customer Paper ($2mm or above)” of the electronic data room maintained by Fenwick & West LLP (as long as such agreements were available in the electronic data room before 5:00 p.m. (Pacific time) on September 8, 2010);
(iv) any Contract containing any covenant applicable to the Company or any of its Subsidiaries (or, as a result of the consummation of the Merger, would by its terms be applicable to Parent or any of its Subsidiaries) (A) limiting in any respect any such Person’s right to engage in any line of business or to operate in any geographic area or (B) granting any exclusive rights in respect of Owned Company IP;
(v) any Contract relating to the disposition or acquisition by the Company or any of its Subsidiaries after the date of this Agreement of assets, other than any Contract entered into in the ordinary course of business, or pursuant to which the Company or any of its Subsidiaries has any material ownership interest in any other Person or other business enterprise other than the Company’s Subsidiaries;
(vi) any Contract relating for the acquisition of an entity or assets (excluding any procurement Contract or license entered into in the ordinary course of business) pursuant to which the Company or any Indebtedness of a Transferred Entity in an amount in excess of $5,000,000its Subsidiaries has any material continuing indemnification, “earn-out” or other than: (A) any mortgage or similar Indebtedness secured by specific property owned by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closingcontingent obligations;
(vii) any Contract joint venture, joint marketing or joint development agreement, (including any so-called take-or-pay or keep well agreementsA) under which the Company or any of its Subsidiaries (A1) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or had out-of-pocket payment obligations of any Transferred Entity in respect of the BGI Business that would reasonably be expected to be material to the Transferred Entities, taken as a whole, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person (other than any Transferred Entity) in each case in excess of $10,000,000500,000 during the one-year period ending on the Agreement Date or (2) with respect to joint venture and joint development agreements, reasonably expects to have out-of-pocket payment obligations in excess of $500,000 during the one-year period beginning on the Agreement Date and (B) which may not be canceled without penalty upon notice of 90 days or less; or any agreement pursuant to which the Company or any of its Subsidiaries have continuing obligations to jointly develop any Intellectual Property Rights that will not be owned solely by the Company or one of its Subsidiaries;
(viii) any Contract that provides for earndealer or distributor agreement under which the Company or any of its Subsidiaries had revenues or out-outs or other similar contingent of-pocket payment obligations that would reasonably be expected to result in annual payments in 2009 excess of $5,000,000 or more2,000,000 during the one-year period ending on the Agreement Date;
(ix) any Contract entered into since January 1, 2007 that (A) contains most favored customer pricing provisions or (B) grants any exclusive rights or rights of first refusal to any Person;
(x) any Contract containing a provision regarding any financial penalty for the acquisition failure by the Company or disposition any of its Subsidiaries to comply with any support or maintenance obligation (other than those obligations that are terminable by the Company or any of its Subsidiaries on no more than twelve (12) months’ notice or otherwise without material liability or financial obligation to the Company and its Subsidiaries, taken as a Person or a division of a Person, or for the acquisition or sale of any assets (including Intellectual Propertywhole), propertiesif such provision materially differs from the provisions embedded in the agreements contained in the folders named “04.01.05 Customer Agmts ($2MM or above)”, equity interests “04.01.05 New Customer Agmts” or rights“04.01.11 Customer Agmts on Customer Paper ($2mm or above)” of the electronic data room maintained by Fenwick & West LLP (as long as such agreements were available in the electronic data room before 5:00 p.m. (Pacific time) on September 8, other than 2010).
(xi) any such sale Contract to license any third party to manufacture or acquisition reproduce any Company Products or any Contract to sell or distribute any Company Products, except (A) agreements with distributors or sales representatives in the ordinary course of business business, or any such sale (B) agreements allowing internal copies made or acquisition that would not reasonably be expected to be material made by end-user customers in the ordinary course of business;
(xii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the Transferred Entitiesborrowing of money or extension of credit, taken whether as a whole; and
(x) any BGI Affiliate Arrangement that will be borrower or lender, in effect after the Closing.
(b) Seller has made available to Buyer prior to the date of this Agreement a complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contractcase, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity 1,000,000, other than ((i), (iiA) accounts receivables and payables and (iiiB) being loans to direct or indirect wholly-owned Subsidiaries, in each case, in the “Significant Contracts”ordinary course of business;
(xiii) is in full force and effect(A) any settlement agreement entered into since April 30, 2007 relating to Intellectual Property Rights, and is valid and binding on the Transferred Entity that is a party thereto(B) any settlement agreement not relating to Intellectual Property Rights entered into since April 30, and2007, to the Knowledge of Seller, on each other party thereto. There exists no breach than (1) releases immaterial in nature or default of any Significant Contract on the part of any Transferred Entity which (amount entered into with former employees or without notice or lapse of time or both) would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.
(c) As independent contractors of the date hereof, no Transferred Entity has entered into and is bound by or subject to any of the following:
(i) other than investment management and distribution Contracts entered into Company in the ordinary course of business consistent with past practicepractice in connection with the routine cessation of such employee’s or independent contractor’s employment with the Company or (2) settlement agreements for cash only (which have been paid);
(xiv) any Company IP Agreement;
(xv) (A) any Government Contract, if the revenues received by the Company under such Government Contract, together with the revenues received by the Company under any other Government Contract with the same counterparty (whether or not currently in effect), exceed $2,000,000 in the aggregate; (B) any Government Contract with a Governmental Entity under which the Company has received revenues totaling $650,000 or more over the immediately preceding nine (9) fiscal quarters; and (C) any Government Proposal (with a U.S. Federal Governmental Entity) that, if awarded, the Company would reasonably expect to receive revenues of $650,000 or more (it being understood that this Section 4.15(a)(xv) shall in no way limit or otherwise affect the meaning of the representations of the Company set forth in Section 4.20);
(xvi) any other Contract that requires, on its face, the Company or any of its Subsidiaries to make payment to a third party in excess of $1,000,000 in any individual case not described in clauses (i) through (xv) above; or
(xvii) to the Knowledge of the Company, any Contract providing for Contract, or group of Contracts with a Person (or group of affiliated Persons), the indemnification termination or breach of which, to the Knowledge of the Company, would, individually or in the aggregate, be reasonably expected to have a material adverse effect on any Person with respect to liabilities, whether absolute, accrued, contingent material Company Product or otherwise that would reasonably be expected to result have a Company Material Adverse Effect and is not described in aggregate indemnification payments by clauses (i) through (xvi) above. Each contract of the type described in clauses (i) through (xvii) is referred to herein as a Transferred Entity “Material Contract.”
(i) Each Material Contract is valid and binding on the Company and any of its Subsidiaries to the extent such Subsidiary is a party thereto, as applicable, and to the Knowledge of the Company, each other party thereto, and is in excess of $10,000,000;
full force and effect and enforceable in accordance with its terms, except where the failure to be valid, binding, enforceable and in full force and effect, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect; (ii) the Company and each of its Subsidiaries, and, to the Knowledge of the Company, each other than Contracts entered into party thereto, has performed all obligations required to be performed by it under each Material Contract, except where any noncompliance, individually or in the ordinary course of businessaggregate, any type of Contract has not had and would not reasonably be expected to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as have a wholeCompany Material Adverse Effect; or
and (iii) there is no default under any Material Contract by the Company or any of its Subsidiaries or, to the Knowledge of the Company, any other than Contracts entered into party thereto, and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a 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 Material Contract, nor has the Company or any of its Subsidiaries received any notice of any such default, event or condition, except where any such default, event or condition, individually or in the ordinary course of business consistent with past practiceaggregate, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individually.
(d) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller has not had and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is would not reasonably be expected to provide for payments to have a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller Company Material Adverse Effect. The Company has made available to Buyer a Parent true and complete copy copies of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support all Material Contracts, in each case provided including any amendments thereto (excluding any purchase order, work order, statement of work or service ticket related to certain funds and clients any Material Contract that does not materially amend or modify the terms of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard formsMaterial Contract).
Appears in 2 contracts
Sources: Merger Agreement (Hewlett Packard Co), Merger Agreement (ArcSight Inc)
Contracts. (a) Except for this Agreement and for Contracts filed as exhibits to the Filed SEC Documents, Section 4.13(a) 4.09 of the Seller’s Company Disclosure Schedules contains Letter sets forth a true and complete and correct list of all of the following Contractsof, in effect as of the date of this Agreement, to which a Transferred Entity is a party, is bound by or subject to, or pursuant to which the BGI Business is conducted (the “Specified Contracts”)::
(i) any each Contract for that would be required to be filed by the placement, distribution or sale Company as a “material contract” pursuant to Item 601(b)(10) of shares, units or other ownership interests of a Fund that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $5,000,000 in 2009Regulation S-K under the Securities Act;
(ii) any administration agreement or any each loan and credit agreement, note, debenture, bond, indenture and other similar Contract for the provision of administrative services that is reasonably expected pursuant to provide for payments to, or provide for payments from a Transferred Entity in 2009 in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or less;
(iii) any Contract, other than a Benefit and Compensation Arrangement, that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $10,000,000 in 2009;
(iv) any Contract prohibiting or materially restricting the ability of any Transferred Entity to conduct its business, to engage in any business or operate in any geographical area or to compete with any Person;
(v) any Contract for any joint venture, strategic alliance, partnership or similar arrangement involving a sharing of profits or expenses or payments based on revenues, profits, or assets under management of any Affiliate of Parent or any Fund that is reasonably expected to account for revenue to the BGI Business in 2009 in excess of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be material to the Transferred Entities, taken as a whole;
(vi) any Contract relating to which any Indebtedness of a Transferred Entity in an amount in excess the Company or any of $5,000,000its Subsidiaries, other than: (A) any mortgage or similar Indebtedness secured by specific property owned by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closing;
(vii) any Contract (including any so-called take-or-pay or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any Transferred Entity in respect of the BGI Business that would reasonably be expected to be material to the Transferred Entities, taken as a whole, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person (other than any Transferred Entity) in each case in excess of $10,000,0003,000,000, is outstanding or may be incurred, other than any such Contract between or among any of the Company and any of its Subsidiaries and any letters of credit;
(viiiiii) each Contract to which the Company or any Contract of its Subsidiaries is a party that provides by its terms calls for earn-outs aggregate payments by or to the Company or any of its Subsidiaries of more than $3,000,000 over the remaining term of such Contract, except for any Real Property Leases or employment agreements entered into in the Ordinary Course of Business or that may be canceled, without any material penalty or other similar contingent obligations that would reasonably be expected material liability to result in annual payments in 2009 the Company or any of $5,000,000 its Subsidiaries, upon notice of 90 days or moreless;
(ixiv) each Contract to which the Company or any Contract of its Subsidiaries is a party entered into since January 1, 2007 for 2015 or with respect to which the Company or any of its Subsidiaries has any continuing material obligations, in each case, relating to the acquisition or disposition by the Company or any of its Subsidiaries of properties or assets for, in each case, aggregate consideration of more than $3,000,000, except for acquisitions and dispositions of properties and assets in the Ordinary Course of Business;
(v) each Contract of the Company or any of its Subsidiaries that (A) grants a right of exclusivity, right of first offer, right of first refusal or similar right with respect to any business or geographic region (“Exclusive Rights”); (B) authorizes any Person to grant others the right to license any trademark, service ▇▇▇▇ or other Intellectual Property owned by the Company or any of its Subsidiaries in any geographic area (“Master Franchise Rights”); or (C) restricts in any way the ability of the Company or any of its Affiliates (including post-Closing) to compete with any business or in any geographical area or to solicit customers (“Company Noncompete Restrictions”);
(vi) each Contract that is a division settlement, conciliation or similar agreement (A) that is with any Governmental Authority, (B) pursuant to which the Company or any of a Personits Subsidiaries is obligated after the date of this Agreement to pay consideration in excess of $3,000,000, or (C) that would otherwise limit in any material respect the operation of the Company or any of its Subsidiaries (or, to the Knowledge of the Company, Parent or any of its other Affiliates from and after the Merger Closing) as currently operated;
(vii) each Contract to which the Company or any of its Subsidiaries is a party primarily involving the inbound or outbound licensing of any Intellectual Property (except for off-the-shelf licenses of commercially available software for less than $500,000 on an annual basis and any Contract that is the acquisition subject of clause (B) of Section 4.09(a)(v));
(viii) each Contract that grants to any person any option, right of first offer or sale right of first refusal or similar right to purchase, lease, sublease, license, use, possess or occupy any assets (including Intellectual Property), properties, equity interests or rights, other than any such sale or acquisition in immaterial assets) of the ordinary course of business Company or any such sale or acquisition that would not reasonably be expected to be material to the Transferred Entitiesof its Subsidiaries, taken as a whole; and
(xix) each Contract of the Company or any BGI Affiliate Arrangement of its Subsidiaries that will relates to a partnership, joint venture or similar arrangement. Each Contract set forth on Section 4.09 of the Company Disclosure Letter or required to be in effect after set forth thereon (but subject to the Closinglast sentence of Section 4.09(b)) is referred to herein as a “Specified Contract.”
(b) Seller has made available to Buyer prior to the date As of this Agreement a complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement, the Company has made available to Parent true and complete copies of each Specified Contract. Each (i) of the Specified ContractContracts is valid and binding on the Company or the Subsidiary of the Company party thereto and, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis Knowledge of the Company, each other party thereto, and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effect, and is valid and binding on the Transferred Entity that is a party thereto, and, to the Knowledge of Seller, on except in each other party thereto. There exists no breach or default of any Significant Contract on the part of any Transferred Entity which (with or without notice or lapse of time or both) wouldcase as would not, individually or in the aggregate, reasonably be expected to be material have a Material Adverse Effect. There is no breach or default under any Specified Contract by the Company or any of its Subsidiaries or, to the Transferred EntitiesKnowledge of the Company, taken by any other party thereto, and no event has occurred that with the lapse of time or the giving of notice or both would constitute a breach or default thereunder by the Company or any of its Subsidiaries or, to the Knowledge of the Company, by any other party thereto, except in each case as a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which wouldwould not, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as have a wholeMaterial Adverse Effect.
(c) As of the date hereof, no Transferred Entity has entered into and is bound by or subject to any of the following:
(i) other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practice, any Contract providing for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000;
(ii) other than Contracts entered into in the ordinary course of business, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a whole; or
(iii) other than Contracts entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individually.
(d) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard forms.
Appears in 2 contracts
Sources: Merger Agreement (Popeyes Louisiana Kitchen, Inc.), Merger Agreement (Restaurant Brands International Inc.)
Contracts. (a) Section 4.13(a4.18(a) of the Seller’s CTWS Disclosure Schedules contains a complete and correct list of all of the following ContractsLetter sets forth, in effect as of the date of this Agreement, to which a Transferred Entity is a party, is bound by or subject to, or pursuant to which the BGI Business is conducted (the “Specified Contracts”):true and complete list of:
(i) any each non-competition Contract for the placement, distribution or sale of shares, units or other ownership interests Contract or understanding containing terms that expressly (A) limit or otherwise restrict CTWS or any CTWS Subsidiary or (B) would, after the Effective Time, limit or otherwise restrict the Combined Company from, in the case of either (A) or (B), engaging or competing in any line of business or in any geographic area in a Fund manner that is would be reasonably expected likely to provide for payments tobe material, in the case of (A), to CTWS and the CTWS Subsidiaries, taken as a whole, or provide for payments from, a Transferred Entity in excess the case of $5,000,000 in 2009;
(ii) any administration agreement or any other Contract for the provision of administrative services that is reasonably expected to provide for payments to, or provide for payments from a Transferred Entity in 2009 in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or less;
(iii) any Contract, other than a Benefit and Compensation Arrangement, that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $10,000,000 in 2009;
(iv) any Contract prohibiting or materially restricting the ability of any Transferred Entity to conduct its businessB), to engage in any business or operate in any geographical area or to compete with any Person;
(v) any Contract for any joint venture, strategic alliance, partnership or similar arrangement involving a sharing of profits or expenses or payments based on revenues, profits, or assets under management of any Affiliate of Parent or any Fund that is reasonably expected to account for revenue to the BGI Business in 2009 in excess of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be material to the Transferred EntitiesCombined Company, taken as a whole;
(viii) any each loan and credit agreement or other Contract relating or understanding pursuant to which any Indebtedness of a Transferred Entity in an amount in excess of $5,000,000CTWS or any CTWS Subsidiary is outstanding or may be incurred, other than: (A) than any mortgage such Contract or similar Indebtedness secured by specific property understanding between or among CTWS and the wholly owned by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the ClosingCTWS Subsidiaries;
(viiiii) each partnership, joint venture or similar agreement, Contract or understanding to which CTWS or any Contract (including any so-called take-or-pay CTWS Subsidiary is a party relating to the formation, creation, operation, management or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations control of any Transferred Entity partnership or joint venture, in respect of the BGI Business that would reasonably be expected to be each case material to CTWS and the Transferred EntitiesCTWS Subsidiaries, taken as a whole, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person (other than any Transferred Entity) in each case in excess of $10,000,000;
(viiiiv) any Contract that provides for earn-outs or other similar contingent obligations that would reasonably be expected to result in annual payments in 2009 of $5,000,000 or more;
(ix) any each Contract entered into since January 1, 2007 2013, providing for the acquisition purchase or disposition of a Person or a division of a Person, or for the other acquisition or sale or other disposition (directly or indirectly) by CTWS or any of its Subsidiaries of an asset or assets or a business or businesses (A) in which the aggregate purchase or sale price (regardless of whether the consideration paid or received (x) was paid upon closing or paid or to be paid over time, (y) involved an earn-out or other contingency (in which case the amount of the consideration subject to any assets as yet-unrealized earn-out or other contingency shall be estimated reasonably and in good faith) and (z) in the form of cash, stock, assets, a debt instrument or otherwise) was in excess of $500,000 and (B) under which CTWS or any of its Subsidiaries have or are reasonably likely to have a payment obligation, including Intellectual Property)any obligation to make any indemnification payment (other than indemnification with respect to directors and officers) or any payment under any guarantee or other financial obligation, propertiesin each case, equity interests involving consideration in excess of $500,000;
(v) each material Contract with a Governmental Entity to which CTWS or rightsany CTWS Subsidiary is a party, other than any such sale or acquisition in the ordinary course of business business;
(vi) each Contract or understanding to which CTWS or any such sale CTWS Subsidiary is a party involving the future disposition or acquisition that would not reasonably be expected to be material to of assets or properties with a fair market value in excess of $2,500,000 or, in the Transferred Entitiescase of dispositions or acquisitions included in CTWS’s or any CTWS Subsidiary’s capital budget, taken as a whole$5,000,000; and
(xvii) each Contract or understanding with any BGI Affiliate Arrangement that will be in effect after the Closing.
(b) Seller has made available supplier or vendor under which CTWS or any CTWS Subsidiary is obligated to Buyer prior to the date of this Agreement a complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts purchase technology, goods or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity services involving consideration in excess of $1,000,000 2,500,000 or, in 2009 that contains key person provisions pertaining to employees the case of a Transferred Entity purchases included in CTWS’s or any CTWS Subsidiary’s capital budget, $5,000,000 ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effect, and is valid and binding on the Transferred Entity that is a party thereto, and, except with respect to the Knowledge purchase of Seller, on each other party thereto. There exists no breach or default of any Significant Contract on the part of any Transferred Entity which (with or without notice or lapse of time or both) would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.
(c) As of the date hereof, no Transferred Entity has entered into and is bound by or subject to any of the following:
(i) other than investment management and distribution Contracts entered into water in the ordinary course of business consistent with past practice). Each Contract or understanding of the type described in this Section 4.18(a), together with any CTWS Contract providing required to be filed by CTWS as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act (other than this Agreement or any CTWS Benefit Plan), is referred to in this Agreement as a “CTWS Material Contract”.
(b) Except for matters which, individually or in the indemnification of any Person with respect to liabilitiesaggregate, whether absolute, accrued, contingent or otherwise that have not had and would not reasonably be expected to result have a CTWS Material Adverse Effect, (i) each CTWS Material Contract (including, for purposes of this Section 4.18(b), any Contract entered into after the date of this Agreement that would have been a CTWS Material Contract if such Contract existed on the date of this Agreement) is a valid, binding and legally enforceable obligation of CTWS or one of the CTWS Subsidiaries, as the case may be, and, to the Knowledge of CTWS, of the other parties thereto, except, in aggregate indemnification payments each case, as enforcement may be limited by a Transferred Entity in excess bankruptcy, insolvency, reorganization or similar Laws affecting creditors’ rights generally and by general principles of $10,000,000;
equity, (ii) other than Contracts entered into each such CTWS Material Contract is in the ordinary course of business, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a whole; or
full force and effect and (iii) other than Contracts entered into neither CTWS nor any CTWS Subsidiary is (with or without notice or lapse of time, or both) in the ordinary course of business consistent with past practicebreach or default under any such CTWS Material Contract and, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individually.
(d) Notwithstanding anything to the contrary contained Knowledge of CTWS, no other party to any such CTWS Material Contract is (with or without notice or lapse of time, or both) in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangementbreach or default thereunder.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard forms.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Connecticut Water Service Inc / Ct), Agreement and Plan of Merger (SJW Group)
Contracts. (a) As of the date hereof, except as set forth in Section 4.13(a2.13(a) of the Seller’s Disclosure Schedules contains a complete Schedule, no Acquired Company and correct list of all (with respect to the operation or conduct of the following Contracts, in effect as of the date of this Agreement, to which a Transferred Entity Business) neither PKI nor either Asset Seller is a party, is bound by or subject to, or pursuant party to which the BGI Business is conducted (the “Specified Contracts”):any:
(i) agreement (or group of related agreements with the same person or entity or one or more of PKI, either of the Asset Sellers or any Contract of the Acquired Companies) for the placement, distribution lease of personal property from or sale to third parties providing for lease payments the remaining unpaid balance of shares, units or other ownership interests of a Fund that which is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $5,000,000 500,000, other than (A) purchase orders relating to the supply of goods and services to the Business in 2009the Ordinary Course of Business, and (B) agreements that can be terminated by PKI, such Acquired Company or such Asset Seller, as applicable, on ninety (90) or fewer days’ notice without payment by PKI, such Acquired Company or such Asset Seller of any penalty;
(ii) any administration agreement (or group of related agreements with the same person or entity or one or more of PKI, either of the Asset Sellers or any other Contract of the Acquired Companies): (A) for the provision purchase by or from any Acquired Company, PKI or either of administrative the Asset Sellers of products or services that under which the undelivered balance of such products and services is (or is reasonably expected to provide for payments tobe), or provide for payments from a Transferred Entity in 2009 has since January 1, 2016 been, in excess of $10,000,000 500,000, other than (I) any such contracts and agreements that can be terminated by its terms PKI, such Acquired Company or such Asset Seller, as applicable, on ninety (90) or fewer days’ notice without payment by PKI, such Acquired Company or such Asset Seller of any penalty, or (II) any purchase orders relating to the supply of goods and services to the Business in the Ordinary Course of Business; or (B) with any sole source suppliers whose supply is not terminable without penalty by a Transferred Entity upon notice of 180 days or lessmaterial to the Business;
(iii) any Contractagreement establishing a partnership, other than a Benefit and Compensation Arrangement, that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $10,000,000 in 2009;
(iv) any Contract prohibiting or materially restricting the ability of any Transferred Entity to conduct its business, to engage in any business or operate in any geographical area or to compete with any Person;
(v) any Contract for any joint venture, strategic alliance, partnership revenue-sharing or similar arrangement involving a sharing agreement;
(iv) agreement (or group of profits related agreements with the same person or expenses entity or payments based on revenuesone or more of PKI, profits, or assets under management either of any Affiliate of Parent the Asset Sellers or any Fund that is reasonably expected to account for revenue to of the BGI Business in 2009 in excess of $10,000,000 on an annual Acquired Companies) under which it has created, incurred, assumed or guaranteed (or annualizedmay create, incur, assume or guarantee) basis Indebtedness the outstanding balance of which is more than $500,000 or under which it has imposed a Security Interest on any of the assets, tangible or intangible, that would reasonably be expected to be are material to the Transferred EntitiesBusiness, taken as a whole, except for any Security Interests relating to any capitalized lease financing;
(v) agreement (A) that prohibits or purports to limit or restrict the Business or the right or ability of any Acquired Company from competing or freely engaging in any line of business or with any person or entity anywhere in the world or in any field, market, or during any period of time; (B) that prohibits or purports to limit or restrict any Acquired Company’s ability to own, operate, source, manufacture, sell, transfer, pledge or otherwise dispose of any material assets or business; (C) for the grant to any person or entity of any preferential rights to purchase any of the assets of the Business; or (D) containing any “most favored nation” or “most favored customer” or similar provision in favor of the other party, in each case, that are material to the Business, taken as a whole;
(vi) agreement involving the executive officers or directors of any Contract relating Acquired Company or (with respect to the Business) either Asset Seller;
(vii) employment or similar agreement for the employment of any Indebtedness of individual on a Transferred Entity in an amount full-time or part-time basis providing annual base compensation at a rate in excess of $5,000,000250,000 during any 12-month period, except any such agreement entered into to comply with applicable foreign law;
(viii) severance, change in control, retention, “stay pay” or termination agreement with any director, officer, employee or individual independent contractor of the Business other than: (A) than any mortgage or similar Indebtedness secured by specific property owned by or on behalf such agreement that shall remain an obligation of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following PKI after the Closing;
(viiix) agreement for the sale of any Contract assets or properties of the Business, other than agreements for the sale of goods and services in the Ordinary Course of Business;
(including x) agreement providing for any so-called take-or-pay material payments that are conditioned, in whole or keep well agreementsin part, on a change of control or sale of any Acquired Company, the Business or the Acquired Assets other than any such agreement that shall remain an obligation of PKI after the Closing;
(xi) under which agreement for the acquisition by any Acquired Company or either Asset Seller of any operating business or the equity interests of any other person, other than acquisitions by either Asset Seller that have not or will not become integrated into the Business;
(xii) agreement (or group of related written agreements with the same person or entity or one or more of PKI or any of its subsidiaries) providing for (A) any Person has directly grant by PKI or indirectly guaranteed or assumed Indebtedness, liabilities or obligations any of its subsidiaries to another person of any Transferred Entity right, permission, license, consent or covenant of non-assertion relating to or under any Business IP (other than non-exclusive licenses granted in respect the Ordinary Course of the BGI Business that would reasonably be expected to be material to the Transferred Entities, taken as a wholeend-user customers and distributors of any Business Product), or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person grant by another person (other than PKI or any Transferred Entityof its subsidiaries) in each case in excess to PKI or any of $10,000,000;
(viii) any Contract that provides for earn-outs or other similar contingent obligations that would reasonably be expected to result in annual payments in 2009 of $5,000,000 or more;
(ix) any Contract entered into since January 1, 2007 for the acquisition or disposition of a Person or a division of a Person, or for the acquisition or sale its subsidiaries of any assets right, permission, consent or covenant of non-assertion relating to or under any Intellectual Property used in or related to the Business (including Intellectual Property), properties, equity interests or rights, other than any standard form contracts granting rights to use readily available shrink wrap or click wrap Software having a replacement cost and annual license fee of less than $20,000 for all such sale or acquisition in the ordinary course of business or any such sale or acquisition that would not reasonably be expected to be material to the Transferred Entities, taken as a wholerelated contracts); and
(xxiii) agreement granting any exclusive right, right of first refusal, or right of negotiation to license, market, distribute, sell, or deliver (I) any BGI Affiliate Arrangement product or service (including software) that will be in effect after is currently being, or has at any time within the Closing.
three (b3) Seller has made available to Buyer years prior to the date of this Agreement been, designed, modified, developed, produced, distributed, marketed, provided, exported, licensed, sold, or offered for sale by any Acquired Company or, in connection with the Business, by PKI or any other IP Holder (collectively, “Business Products”) or (II) any Business IP that is material to the Business, taken as a whole; provided, however, that (A) no agreement referred to in clauses (i) through (xiii) above need be disclosed unless PKI, the applicable Acquired Company or the applicable Asset Seller currently has, or may in the future have, any material rights or obligations thereunder and (B) Leases are not required to be disclosed in response to any provision of this Section 2.13, but shall constitute Designated Contracts.
(b) PKI has made available to Buyer a correct and complete and correct copy of each written Specified agreement (as amended to the date of this Agreement) listed in Section 2.13(a) of the Disclosure Schedule and each other Designated Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this AgreementAgreement (the agreements listed (or required to be listed) in Section 2.13 of the Disclosure Schedule, all Leases, all Transferred Contracts and the agreement with Brainlab AG dated October 1, 2013, the “Designated Contracts”). Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Designated Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effect, and is valid and binding on the Transferred Entity that is a party theretovalid, binding and enforceable obligation of PKI, the applicable Acquired Company or the applicable Asset Seller, as the case may be, and, to the Knowledge Sellers’ knowledge, of Seller, on each other party theretothereto (except as the foregoing may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws relating to or affecting the rights of creditors generally and by equitable principles, including those limiting the availability of specific performance, injunctive relief, and other equitable remedies and those providing for equitable defenses). There exists no None of the Sellers or the Acquired Companies or, to Sellers’ knowledge, any other party, is in material breach or material violation of, or material default of under, any Significant Contract on the part of any Transferred Entity which such Designated Contract; and to Sellers’ knowledge, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time or bothtime) would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.
(c) As of the date hereof, no Transferred Entity has entered into and is bound by or subject to any of the following:
(i) other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practice, any Contract providing for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments a material breach, material violation or material default by a Transferred Entity in excess of $10,000,000;
(ii) the Sellers or the Acquired Companies or, to Sellers’ knowledge, any other than Contracts party, under any Designated Contract. Any agreements entered into between the date of this Agreement and the Closing that would have been required to be listed in Section 2.13 of the ordinary course Disclosure Schedule had they been in effect on the date hereof shall be referred to herein as the “Subsequent Designated Contracts.” Each Subsequent Designated Contract will, on the Closing Date, be a valid, binding and enforceable obligation of businessPKI, the applicable Acquired Company or the applicable Asset Seller, as the case may be, and, to Sellers’ knowledge, of each other party thereto (except as the foregoing may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws relating to or affecting the rights of creditors generally and by equitable principles, including those limiting the availability of specific performance, injunctive relief, and other equitable remedies and those providing for equitable defenses). None of the Sellers or the Acquired Companies or, to Sellers’ knowledge, any type of Contract to cap feesother party, share fees will, on the Closing Date, be in material breach or other paymentsmaterial violation of, share expensesor material default under, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material Subsequent Designated Contract; and to the Transferred EntitiesSellers’ knowledge, taken as a whole; or
(iii) other than Contracts entered into in the ordinary course of business consistent with past practiceno event will have occurred, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital and no circumstance or similar investment or (C) to invest in any investment productcondition will exist, in each case in an amount in excess on the Closing Date, that (with or without notice or lapse of $5,000,000 individually.
(dtime) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is would reasonably be expected to provide for payments to result in a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contractsmaterial breach, in each case provided to certain funds and clients of the securities lending material violation or short-term cash businesses of the BGI Business, and none of the Contracts used material default by the Transferred Entities for such purposes materially deviates from such standard formsSellers or the Acquired Companies or, to Sellers’ knowledge, any other party, under any Subsequent Designated Contract.
Appears in 2 contracts
Sources: Master Purchase and Sale Agreement (Varex Imaging Corp), Master Purchase and Sale Agreement (Perkinelmer Inc)
Contracts. (ai) Except as set forth in Section 4.13(a5.1(s) of the Seller’s Company Disclosure Schedules contains a complete and correct list of all of the following ContractsSchedule, in effect as of the date of this Agreement, to which a Transferred Entity none of the Company or any of its Subsidiaries is a party, is party to or bound by or subject toany contract, agreement, commitment, lease, or other instrument or obligation, whether oral or written (each a “Contract”): (A) required to be filed by the Company with the SEC pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act; (B) with respect to partnerships, joint ventures or similar arrangements; (C) containing covenants of the Company or any of its Subsidiaries purporting to limit in any material respect any line of business, any channel of distribution, or geographical area in which the Company or its Subsidiaries may operate; (D) pursuant to which the BGI Business is conducted (the “Specified Contracts”):
(i) any Contract for the placement, distribution or sale of shares, units or other ownership interests of a Fund that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $5,000,000 in 2009;
(ii) any administration agreement Company or any other Contract for the provision of administrative services that is reasonably expected to provide for payments to, or provide for payments from a Transferred Entity in 2009 in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or less;
(iii) any Contract, other than a Benefit and Compensation Arrangement, that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $10,000,000 in 2009;
(iv) any Contract prohibiting or materially restricting the ability of any Transferred Entity to conduct its business, to engage in any business or operate in any geographical area or to compete with any Person;
(v) any Contract for any joint venture, strategic alliance, partnership or similar arrangement involving a sharing of profits or expenses or payments based on revenues, profits, or assets under management of any Affiliate of Parent or any Fund that is reasonably expected to account for revenue to the BGI Business in 2009 in excess of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be material to the Transferred Entities, taken as a whole;
(vi) any Contract relating to Subsidiaries has any Indebtedness of a Transferred Entity in an amount in excess of $5,000,000, 500,000 outstanding (other than: (A) any mortgage or similar Indebtedness secured by specific property owned by or on behalf of a Clientthan intercompany Indebtedness); (BE) any Indebtedness solely between Transferred Entities; licensing or otherwise specifically concerning Intellectual Property (Cexcept for Contracts with respect to non-exclusive, generally commercially available software) any Indebtedness for which no Transferred Entity will be liable following the Closing;
(vii) any Contract (including any so-called take-or-pay or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any Transferred Entity in respect of the BGI Business that would reasonably be expected to be is material to the Transferred Entities, taken as a whole, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities business of any Person (other than any Transferred Entity) in each case in excess of $10,000,000;
(viii) any Contract that provides for earn-outs or other similar contingent obligations that would reasonably be expected to result in annual payments in 2009 of $5,000,000 or more;
(ix) any Contract entered into since January 1, 2007 for the acquisition or disposition of a Person or a division of a Person, or for the acquisition or sale of any assets (including Intellectual Property), properties, equity interests or rights, other than any such sale or acquisition in the ordinary course of business or any such sale or acquisition that would not reasonably be expected to be material to the Transferred EntitiesCompany and its Subsidiaries, taken as a whole; and
(xF) that is a collective bargaining agreement, or any BGI Affiliate Arrangement other Contract with any labor union, labor organization or works council; (G) pursuant to which the Company or any of its Subsidiaries leases Owned Real Property to any third party other than short term leases that will are terminable by the Company or its Subsidiaries without fee or penalty upon thirty days’ or less prior notice; (H) that is a Property Franchise; (I) for any construction work (including any additions or expansions) to be performed at any Owned Real Property and under which the Company or any of its Subsidiaries has an obligation in effect after excess of $250,000 in the Closingaggregate; (J) relating to interest rate caps, interest rate collars, interest rate swaps, currency hedging transactions and other similar arrangements to which the Company or any of its Subsidiaries is a party or an obligor with respect thereto; (K) that require the Company or any of its Subsidiaries to purchase its total requirements of any product or service from a third party or that contain “take or pay” provisions; or (L) that by its terms calls for aggregate payments by or to the Company or any of its Subsidiaries in excess of $500,000. Each such Contract described in clauses (A) - (L) above is referred to herein as a “Material Contract.
(b) Seller ” As of the date hereof, the Company has made available to Buyer prior to the date of this Agreement a Parent an accurate and complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Material Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, .
(ii) Investment Advisory Arrangement which accounts for more than $1,000,000 Each of revenue the Material Contracts is valid and binding on the Company and each of its Subsidiaries party thereto and, to the BGI Business on an annualized basis Knowledge of the Company, each other party thereto and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effect, and is except for such failures to be valid and binding on the Transferred Entity that is a party theretoor to be in full force and effect that, and, to the Knowledge of Seller, on each other party thereto. There exists no breach or default of any Significant Contract on the part of any Transferred Entity which (with or without notice or lapse of time or both) wouldwould not, individually or in the aggregate, reasonably be expected to be material have a Company Material Adverse Effect. There is no default under any Material Contract either by the Company or any of its Subsidiaries party thereto or, to the Transferred EntitiesKnowledge of the Company, taken by any other party thereto, and no event has occurred that with notice or lapse of time or both would constitute a default thereunder by the Company or any of its Subsidiaries party thereto or, to the Knowledge of the Company, any other party thereto, in each case except as a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which wouldwould not, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as have a wholeCompany Material Adverse Effect.
(c) As of the date hereof, no Transferred Entity has entered into and is bound by or subject to any of the following:
(i) other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practice, any Contract providing for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000;
(ii) other than Contracts entered into in the ordinary course of business, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a whole; or
(iii) other than Contracts entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individually.
(d) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard forms.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Penn National Gaming Inc), Merger Agreement (Tropicana Las Vegas Hotel & Casino, Inc.)
Contracts. (a) Section 4.13(a4.18(a) of the Seller’s CTWS Disclosure Schedules contains a complete and correct list of all of the following ContractsLetter sets forth, in effect as of the date of this Agreement, to which a Transferred Entity is a party, is bound by or subject to, or pursuant to which the BGI Business is conducted (the “Specified Contracts”):true and complete list of:
(i) any each non-competition Contract for the placement, distribution or sale of shares, units or other ownership interests Contract or understanding containing terms that expressly (A) limit or otherwise restrict CTWS or any CTWS Subsidiary or (B) would, after the Effective Time, limit or otherwise restrict the Combined Company from, in the case of either (A) or (B), engaging or competing in any line of business or in any geographic area in a Fund manner that is would be reasonably expected likely to provide for payments tobe material, in the case of (A), to CTWS and the CTWS Subsidiaries, taken as a whole, or provide for payments from, a Transferred Entity in excess the case of $5,000,000 in 2009;
(ii) any administration agreement or any other Contract for the provision of administrative services that is reasonably expected to provide for payments to, or provide for payments from a Transferred Entity in 2009 in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or less;
(iii) any Contract, other than a Benefit and Compensation Arrangement, that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $10,000,000 in 2009;
(iv) any Contract prohibiting or materially restricting the ability of any Transferred Entity to conduct its businessB), to engage in any business or operate in any geographical area or to compete with any Person;
(v) any Contract for any joint venture, strategic alliance, partnership or similar arrangement involving a sharing of profits or expenses or payments based on revenues, profits, or assets under management of any Affiliate of Parent or any Fund that is reasonably expected to account for revenue to the BGI Business in 2009 in excess of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be material to the Transferred EntitiesCombined Company, taken as a whole;
(viii) any each loan and credit agreement or other Contract relating or understanding pursuant to which any Indebtedness of a Transferred Entity in an amount in excess of $5,000,000CTWS or any CTWS Subsidiary is outstanding or may be incurred, other than: (A) than any mortgage such Contract or similar Indebtedness secured by specific property understanding between or among CTWS and the wholly owned by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the ClosingCTWS Subsidiaries;
(viiiii) each partnership, joint venture or similar agreement, Contract or understanding to which CTWS or any Contract (including any so-called take-or-pay CTWS Subsidiary is a party relating to the formation, creation, operation, management or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations control of any Transferred Entity partnership or joint venture, in respect of the BGI Business that would reasonably be expected to be each case material to CTWS and the Transferred EntitiesCTWS Subsidiaries, taken as a whole, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person (other than any Transferred Entity) in each case in excess of $10,000,000;
(viiiiv) any Contract that provides for earn-outs or other similar contingent obligations that would reasonably be expected to result in annual payments in 2009 of $5,000,000 or more;
(ix) any each Contract entered into since January 1, 2007 2013, providing for the acquisition purchase or disposition of a Person or a division of a Person, or for the other acquisition or sale or other disposition (directly or indirectly) by CTWS or any of its Subsidiaries of an asset or assets or a business or businesses (A) in which the aggregate purchase or sale price (regardless of whether the consideration paid or received (x) was paid upon closing or paid or to be paid over time, (y) involved an earn-out or other contingency (in which case the amount of the consideration subject to any assets as yet-unrealized earn-out or other contingency shall be estimated reasonably and in good faith) and (z) in the form of cash, stock, assets, a debt instrument or otherwise) was in excess of $500,000 and (B) under which CTWS or any of its Subsidiaries has or is reasonably likely to have a payment obligation, including Intellectual Property)any obligation to make any indemnification payment (other than indemnification with respect to directors and officers) or any payment under any guarantee or other financial obligation, propertiesin each case, equity interests involving consideration in excess of $500,000;
(v) each material Contract with a Governmental Entity to which CTWS or rightsany CTWS Subsidiary is a party, other than any such sale or acquisition in the ordinary course of business business;
(vi) each Contract or understanding to which CTWS or any such sale CTWS Subsidiary is a party involving the future disposition or acquisition that would not reasonably be expected to be material to of assets or properties with a fair market value in excess of $2,500,000 or, in the Transferred Entitiescase of dispositions or acquisitions included in CTWS’s or any CTWS Subsidiary’s capital budget, taken as a whole$5,000,000; and
(xvii) each Contract or understanding with any BGI Affiliate Arrangement that will be in effect after the Closing.
(b) Seller has made available supplier or vendor under which CTWS or any CTWS Subsidiary is obligated to Buyer prior to the date of this Agreement a complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts purchase technology, goods or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity services involving consideration in excess of $1,000,000 2,500,000 or, in 2009 that contains key person provisions pertaining to employees the case of a Transferred Entity purchases included in CTWS’s or any CTWS Subsidiary’s capital budget, $5,000,000 ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effect, and is valid and binding on the Transferred Entity that is a party thereto, and, except with respect to the Knowledge purchase of Seller, on each other party thereto. There exists no breach or default of any Significant Contract on the part of any Transferred Entity which (with or without notice or lapse of time or both) would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.
(c) As of the date hereof, no Transferred Entity has entered into and is bound by or subject to any of the following:
(i) other than investment management and distribution Contracts entered into water in the ordinary course of business consistent with past practice). Each Contract or understanding of the type described in this Section 4.18(a), together with any CTWS Contract providing required to be filed by CTWS as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act (other than this Agreement or any CTWS Benefit Plan), is referred to in this Agreement as a “CTWS Material Contract”.
(b) Except for matters which, individually or in the indemnification of any Person with respect to liabilitiesaggregate, whether absolute, accrued, contingent or otherwise that have not had and would not reasonably be expected to result have a CTWS Material Adverse Effect, (i) each CTWS Material Contract (including, for purposes of this Section 4.18(b), any Contract entered into after the date of this Agreement that would have been a CTWS Material Contract if such Contract existed on the date of this Agreement) is a valid, binding and legally enforceable obligation of CTWS or one of the CTWS Subsidiaries, as the case may be, and, to the Knowledge of CTWS, of the other parties thereto, except, in aggregate indemnification payments each case, as enforcement may be limited by a Transferred Entity in excess bankruptcy, insolvency, reorganization or similar Laws affecting creditors’ rights generally and by general principles of $10,000,000;
equity, (ii) other than Contracts entered into each such CTWS Material Contract is in the ordinary course of business, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a whole; or
full force and effect and (iii) other than Contracts entered into neither CTWS nor any CTWS Subsidiary is (with or without notice or lapse of time, or both) in the ordinary course of business consistent with past practicebreach or default under any such CTWS Material Contract and, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individually.
(d) Notwithstanding anything to the contrary contained Knowledge of CTWS, no other party to any such CTWS Material Contract is (with or without notice or lapse of time, or both) in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangementbreach or default thereunder.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard forms.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Connecticut Water Service Inc / Ct), Agreement and Plan of Merger (SJW Group)
Contracts. (a) Section 4.13(a) of Except for this Agreement and except for Contracts filed as exhibits to the Seller’s Disclosure Schedules contains a complete and correct list of all of the following ContractsFiled Company SEC Documents, in effect as of the date of this Agreement, to which a Transferred Entity none of the Company or the Company Subsidiaries is a party, is party to or bound by or subject to, or pursuant to which any of the BGI Business is conducted (the “Specified Contracts”):following:
(i) any Contract for that would be required to be filed by the placement, distribution or sale Company as a “material contract” pursuant to Item 601(b)(10) of shares, units or other ownership interests of a Fund that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $5,000,000 in 2009Regulation S-K under the Securities Act;
(ii) any administration agreement Contract containing covenants binding upon the Company or the Company Subsidiaries that restrict the ability of the Company or any other Contract for of the provision Company Subsidiaries (or which, following the consummation of administrative services that is reasonably expected the Offer or the Merger, would materially restrict the ability of the Surviving Corporation or its affiliates) to provide for payments to, compete in any business or provide for payments from a Transferred Entity in 2009 in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days geographic area or lesswith any person;
(iii) any Contract, other than a Benefit and Compensation Arrangement, that is reasonably expected Contract pursuant to provide for payments to, or provide for payments from, a Transferred Entity in excess of $10,000,000 in 2009;
(iv) any Contract prohibiting or materially restricting which the ability of any Transferred Entity to conduct its business, to engage in any business or operate in any geographical area or to compete with any Person;
(v) any Contract for any joint venture, strategic alliance, partnership or similar arrangement involving a sharing of profits or expenses or payments based on revenues, profits, or assets under management of any Affiliate of Parent Company or any Fund that Company Subsidiary is reasonably expected subject to account for revenue continuing indemnification or “earn-out” obligations (whether related to the BGI Business in 2009 in excess of $10,000,000 on an annual (environmental matters or annualized) basis or that would reasonably be expected to be material to the Transferred Entitiesotherwise), taken as a whole;
(vi) any Contract relating to any Indebtedness of a Transferred Entity in an amount in excess of $5,000,000, other than: (A) any mortgage or similar Indebtedness secured by specific property owned by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closing;
(vii) any Contract (including any so-called take-or-pay or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any Transferred Entity in respect of the BGI Business that would reasonably be expected to be material to the Transferred Entities, taken as a whole, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person (other than any Transferred Entity) in each case in excess of $10,000,000;
(viii) any Contract that provides for earn-outs or other similar contingent obligations case, that would reasonably be expected to result in annual payments by the Company or any Company Subsidiary in 2009 excess of $5,000,000 or more1,000,000;
(ixiv) any Contract for the acquisition, sale, lease or license of material properties or assets of the Company or the Company Subsidiaries outside the ordinary course of business (by merger, purchase or sale of assets or stock or otherwise) entered into since January April 1, 2007 2007;
(v) any Contract relating to indebtedness for borrowed money (whether incurred, assumed, guaranteed or secured by any asset) or under which the acquisition Company or disposition of a Person any Company Subsidiary has, directly or a division of a Personindirectly, made any loan, capital contribution to, or for the acquisition or sale of other investment in, any assets person (including Intellectual Property), properties, equity interests or rights, other than in the Company or any such sale or acquisition Company Subsidiary and other than (A) extensions of credit in the ordinary course of business and (B) investments in marketable securities in the ordinary course of business consistent with past practice); or
(vi) any Contract constituting a material joint marketing, partnership, joint venture or any other similar arrangement. Each such sale or acquisition that would not reasonably be expected Contract of the type described in clauses (i) through (vi) along with each of the Contracts set forth in Section 3.17(a) of the Company Disclosure Letter is referred to be material to the Transferred Entities, taken herein as a whole; and
(x) any BGI Affiliate Arrangement that will be in effect after the Closing“Material Contract”.
(b) Seller has made available to Buyer prior Each of the Material Contracts is valid, binding and enforceable on the Company or the Company Subsidiaries, as the case may be, and, to the date knowledge of this Agreement a complete the Company, each other party thereto and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effect, except for such failures to be valid, binding or enforceable or to be in full force and effect as, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and except that such enforceability may be (i) limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws of general application relating to or affecting creditors’ rights generally and (ii) subject to general equitable principles (whether considered in a proceeding in equity or at law) and any implied covenant of good faith and fair dealing. Each of the Company and the Company Subsidiaries has complied in all material respects with the terms and conditions of the Material Contracts and is valid and binding on the Transferred Entity that is a party thereto, and, to the Knowledge of Seller, on each other party thereto. There exists no breach or default of any Significant Contract on the part of any Transferred Entity which not (with or without notice or lapse of time time, or both) wouldin breach or default thereunder, in each case except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.
(c) Except as would not reasonably be material expected to the Transferred Entities, taken as a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which wouldhave, individually or in the aggregate, a Company Material Adverse Effect, with respect to each Material Contract, and each offer, quote, bid or proposal (a “Government Contract Bid”) that, if accepted, would result in a Material Contract, between the Company or any Company Subsidiary, on the one hand, and any (i) Governmental Entity, (ii) prime contractor of a Governmental Entity in its capacity as a prime contractor or (iii) subcontractor with respect to any Contract listed in clause (i) or (ii) above, on the other hand (each, a “Government Contract”), as of the date of this Agreement: (A) none of the Company or any Company Subsidiary has been notified in writing, or to the knowledge of the Company orally, by any Governmental Entity or any prime contractor, subcontractor or vendor that the Company or any Company Subsidiary has defaulted, breached or violated, or is alleged to have defaulted, breached or violated, any applicable Law, certification, representation, warranty, clause, provision or requirement pertaining to such Government Contract or Government Contract Bid, and none of the Company or any Company Subsidiary is in default, breach or violation of any such applicable Law, certification, representation, warranty, clause, provision or requirement; (B) none of the Company or any Company Subsidiary has received any notice of, and to the knowledge of the Company no person has threatened to give any notice of, termination for convenience, notice of termination for default, cure notice or show cause notice pertaining to such Government Contract; (C) no payments due to the Company or any Company Subsidiary pertaining to such Government Contract have been withheld or set off nor has any claim been made to withhold or set off money; and (D) no Government Contract or Government Contract Bid is based on the Company or any Company Subsidiary having § 8(a) status, small business status, small disadvantaged business status, protégé status, or other preferential status afforded by Federal statute or regulation.
(d) Except as would not reasonably be expected to be material have, individually or in the aggregate, a Company Material Adverse Effect, with respect to each Contract, and each offer, quote, bid or proposal that, if accepted, would result in a Contract, between the Company or any Company Subsidiary, on the one hand, and any (i) Governmental Entity, (ii) prime contractor of a Governmental Entity in its capacity as a prime contractor or (iii) subcontractor with respect to any Contract listed in clause (i) or (ii) above, on the other hand, as of the date of this Agreement, there is no claim pending (other than qui tam claims or other similar claims filed under seal and of which the Company does not have knowledge) or, to the Transferred Entitiesknowledge of the Company, taken threatened, including any claim for fraud (as a wholesuch concept is defined under the state or Federal laws of the United States) under the United States False Claims Acts or the United States Procurement Integrity Act.
(ce) Within the past three years:
(i) None of the Company or any Company Subsidiary or any of their respective directors, officers, employees (nor to the knowledge of the Company, any consultants, agents or other representatives of the Company and any Company Subsidiary) is or has been: (A) under any material administrative, civil, or criminal investigation or indictment by any Governmental Entity (in each case, other than broad based routine audits or inquiries in the ordinary course) or (B) subject to any material administrative investigation or material audit by any Governmental Entity, in either case with respect to any act or omission arising under or relating to any Government Contract; and
(ii) None of the Company or any Company Subsidiary is or has been debarred or suspended from participation in, or the award of, Contracts with any Governmental Entity. Additionally, to the knowledge of the Company, there exist no facts or circumstances that would warrant the institution of suspension or debarment proceedings or a finding of non-responsibility or ineligibility on the part of the Company, the Company Subsidiaries or any of their respective directors or officers.
(f) As of the date hereof, no Transferred Entity has entered into and is bound by or subject to any of the followingthis Agreement:
(i) There are no material outstanding disputes between the Company or any Company Subsidiary, on the one hand, and any Governmental Entity, on the other than investment management hand, under the Contract Disputes Act of 1978, as amended, or any other Federal Law or between the Company or any Company Subsidiary, on the one hand, and distribution Contracts entered into in any prime contractor, subcontractor, vendor or third party, on the ordinary course of business consistent with past practiceother hand, arising under or relating to any Contract providing for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000Government Contract;
(ii) other than Contracts entered into in There are no material outstanding claims against the ordinary course of businessCompany or a Company Subsidiary, any type of Contract to cap feeseither by a Governmental Entity or by a prime contractor, share fees subcontractor, vendor or other payments, share expenses, waive fees third party arising under or relating to reimburse any Government Contract or assume any Government Contract Bid to which the Company or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a wholeCompany Subsidiary is a party; orand
(iii) other than Contracts entered into in None of the ordinary course of business consistent with past practice, Company or any Contract requiring Company Subsidiary has any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest interest in any investment productmaterial pending or, in each case in an amount in excess of $5,000,000 individually.
(d) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) knowledge of the Seller’s Disclosure Schedules is a description of Company, material potential claim under the Contracts Dispute Act against the United States Government or any “most favored nation” provision in prime contractor, subcontractor, vendor or third party arising under or relating to any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009Government Contract.
(g) Seller As of the date of this Agreement, the Company and all Company Subsidiaries are in material compliance with all national security obligations including those specified in the NISPOM.
(h) Section 3.17(h) of the Company Disclosure Letter sets forth a list of the classified Contracts of the Company and the Company Subsidiaries as of the date of this Agreement and is true and accurate in all material respects.
(i) The Company and the Company Subsidiaries have complied in all material respects with Federal Acquisition Regulation (“FAR”) 52.203-13(b)(3)(i). None of the Company or any Company Subsidiary has made available any mandatory or voluntary disclosure under FAR 52.203-13(b)(3)(i) to Buyer a true and complete copy of its form of counterparty security lending any Governmental Entity, prime contractor, subcontractor, vendor or any other person with respect to any Government Contract or Government Contract Bid.
(borrower defaultj) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided No Governmental Entity has found the Company’s or any Company Subsidiaries’ cost accounting system to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard formsbe inadequate.
Appears in 2 contracts
Sources: Merger Agreement (Cgi Group Inc), Merger Agreement (Stanley, Inc.)
Contracts. (a) Section 4.13(a3.12(a) of the Seller’s Disclosure Schedules contains a complete and correct list of all of Schedule lists the following Contracts, in effect Contracts to which the Company or any of its Subsidiaries is a party as of the date of this Agreement, to which a Transferred Entity is a partyother than this Agreement, is bound by or subject tothe Company Plans and the Policies (collectively, or pursuant to which the BGI Business is conducted (the “Specified Material Contracts”):
(i) any Contract for that would be required to be filed by the placementCompany as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act, distribution as a “definitive material agreement” (as such term is defined in Item 1.01 of Form 8-K of the SEC under the Exchange Act) or sale that would be required to be disclosed under Item 404 of shares, units or other ownership interests of a Fund that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $5,000,000 in 2009Regulations S-K under the Securities Act;
(ii) any administration agreement Contract containing any right of any exclusivity in favor of the other parties thereto with respect to any matter material to the Company’s business (including the sale, resale or distribution of any of the Company’s or its Subsidiaries’ products or the geographic area in which any product may be sold, resold or distributed) or any other Contract for covenant limiting, in any respect, the provision ability of administrative services that is reasonably expected the Company or any of its Subsidiaries to provide for payments toengage in any line of business, compete with any Person or provide for payments from a Transferred Entity in 2009 in excess any geographic area or solicit the employees of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or lessanother Person;
(iii) each Contract that creates, governs or controls a partnership, joint venture or other similar arrangement with respect to the Company or any Contract, other than a Benefit and Compensation Arrangement, that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $10,000,000 in 2009its Subsidiaries;
(iv) any each Contract prohibiting that (A) provides for or materially restricting the ability of any Transferred Entity relates to conduct its business, to engage in any business or operate in any geographical area or to compete with any Person;
(v) any Contract for any joint venture, strategic alliance, partnership or similar arrangement involving a sharing of profits or expenses or payments based on revenues, profits, or assets under management of any Affiliate of Parent or any Fund that is reasonably expected to account for revenue to the BGI Business in 2009 in excess of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be material to the Transferred Entities, taken as a whole;
(vi) any Contract relating to any Indebtedness of a Transferred Entity in the Company or its Subsidiaries having an outstanding amount in excess of $5,000,000, other than: than any Indebtedness between or among any of the Company and any of its Subsidiaries or (B) provides for or relates to any hedging, derivatives or similar contracts or arrangements;
(v) each lease and sublease pursuant to which the Company or any of its Subsidiaries uses or holds any material property involving payments by or to the Company or any of its Subsidiaries of more than $500,000 on an annual basis;
(A) any mortgage each Contract entered into after the Balance Sheet Date or similar Indebtedness secured by specific property owned by or on behalf of a Client; (B) each Contract (x) pursuant to which any Indebtedness solely between Transferred Entities; material earn-out, deferred or contingent payment remains outstanding or (Cy) entered into on or after August 28, 2009 pursuant to which indemnification obligations are still in effect (excluding indemnification obligations in respect of representations and warranties that survive indefinitely), in each case that relates to the acquisition or disposition of any Indebtedness for which no Transferred Entity will be liable following the Closingbusiness (whether by merger, sale of stock, sale of assets or otherwise) other than this Agreement;
(vii) any each mortgage, pledge, security agreement, deed of trust or other Contract (including any so-called take-or-pay or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any Transferred Entity in respect of the BGI Business that would reasonably be expected to be material to the Transferred Entities, taken as granting a whole, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person Lien (other than a Permitted Lien) on any Transferred Entity) in each case in excess material real property or asset of $10,000,000the Company or any Subsidiary thereof;
(viii) each Contract containing restrictions with respect to (A) payment of dividends or any Contract that provides for earn-outs distributions in respect of the equity interests of the Company or any of its Subsidiaries, (B) the pledging of the shares in its capital or other similar contingent obligations that would reasonably be expected to result equity interests of the Company or any of its Subsidiaries or (C) the issuance of any guaranty in annual payments in 2009 excess of $5,000,000 by the Company or moreany of its Subsidiaries;
(ix) any each Contract entered into since January 1, 2007 (or series of related Contracts) for the acquisition or disposition of a Person or a division of a Person, or for the acquisition purchase or sale of any assets materials (including Intellectual Property), properties, equity interests or rights, other than any such sale or acquisition in the ordinary course of business or any such sale or acquisition that would not reasonably be expected to be material to the Transferred Entities, taken as a whole; and
(x) any BGI Affiliate Arrangement that will be in effect after the Closing.
(b) Seller has made available to Buyer prior to the date of this Agreement a complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments purchase orders issued pursuant to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effect, and is valid and binding on the Transferred Entity that is a party thereto, and, to the Knowledge of Seller, on each other party thereto. There exists no breach Contract governing such purchase orders or default of any Significant Contract on the part of any Transferred Entity which (with or without notice or lapse of time or both) would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.
(c) As of the date hereof, no Transferred Entity has entered into and is bound by or subject to any of the following:
(i) other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practice, any Contract providing for the indemnification purchase or sale of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000;
(ii) other than Contracts materials entered into in the ordinary course of business), supplies, goods, services, equipment or other assets providing for annual payments by the Company and its Subsidiaries or to the Company and its Subsidiaries, respectively, during the calendar year prior to the date hereof of $40,000,000 or more;
(x) each Contract set forth on Section 3.10(d) of the Disclosure Schedule;
(xi) each material Contract with a Governmental Entity;
(xii) each Contract that provides for the payment, increase or vesting of any benefits or compensation in connection with the consummation of the Merger; and
(xiii) Contracts relating to any single or series of related capital expenditures by the Company pursuant to which the Company or any of its Subsidiaries has future financial obligations in excess of $3,000,000.
(i) Each Material Contract is valid and binding on the Company and any of its Subsidiaries to the extent such Subsidiary is a party thereto, as applicable, and to the Knowledge of the Company, each other party thereto, and is in full force and effect and enforceable in accordance with its terms, except where the failure to be valid, binding, enforceable, and in full force and effect would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (ii) the Company and each of its Subsidiaries, and, to the Knowledge of the Company, any type other party thereto, has performed all obligations required to be performed by it under each Material Contract, except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (iii) neither the Company nor any of Contract to cap feesits Subsidiaries has received notice of the existence of any event or condition which constitutes, share fees or, after notice or other paymentslapse of time or both, share expenseswill constitute, waive fees a default on the part of the Company or to reimburse or assume any or all fees or expenses thereunder that in of its Subsidiaries under any such case would be material Material Contract, and to the Transferred EntitiesKnowledge of the Company, there are no events or conditions which constitute, or, after notice or lapse of time or both, will constitute a default on the part of any counterparty under such Material Contract, except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect; and (iv) to the Knowledge of the Company, the Company has not received any notice from any Person that such Person intends to terminate, or not renew, any Material Contract.
(c) Section 3.12(c) of the Disclosure Schedule sets forth a complete and accurate list of the top ten (10) customers of the Company and its Subsidiaries, taken as a whole; , by net revenue during the 12-month period ended as at the Balance Sheet Date (the “Top Customers”) and Section 3.12(c) of the Disclosure Schedule sets forth a complete and accurate list of the top five (5) suppliers of the Company and its Subsidiaries, taken as a whole, by expenditures during the 12-month period ended as at the Balance Sheet Date (the “Top Suppliers”). Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, as of the date hereof, (i) none of the Top Customers or the Top Suppliers has canceled or otherwise terminated, or
, to the Knowledge of the Company, has informed the Company of its intention to terminate or not renew its relationship with the Company or any of its Subsidiaries and (iiiii) neither the Company nor any of its Subsidiaries has received written notice that any such Top Customer or Top Supplier, as the case may be, intends to terminate or otherwise materially and adversely (x) modify its relationship with the Company or any of its Subsidiaries or (y) limit its purchases from or sales to, as applicable, the Company or its Subsidiaries (other than Contracts entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individuallybusiness).
(d) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard forms.
Appears in 2 contracts
Sources: Merger Agreement (SMART Global Holdings, Inc.), Merger Agreement (SMART Modular Technologies (WWH), Inc.)
Contracts. Except for those Contracts filed as exhibits to the Filed SEC Documents, Government Contracts (aas defined below) or Contracts that cannot be disclosed as a result of applicable laws relating to the exchange of information, Section 4.13(a3.1(t) of the Seller’s Company Disclosure Schedules contains Letter sets forth each Contract that the Company or any Subsidiary is a complete and correct list of all of the following Contractsparty to or bound by, in effect as of the date of this Agreementhereof, to which a Transferred Entity is a party, is bound by or subject to, or pursuant to which the BGI Business is conducted (the “Specified Contracts”):that:
(i) any Contract for is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the placement, distribution or sale of shares, units or other ownership interests of a Fund that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $5,000,000 in 2009SEC);
(ii) restricts in any administration agreement material respect the Company or any other Contract for Subsidiary or, to the provision Knowledge of administrative services the Company, that is reasonably expected to provide for payments towould, after the Effective Time, materially restrict Parent or provide for payments any of its Subsidiaries (including the Surviving Corporation and its Subsidiaries) or any successor thereto from a Transferred Entity engaging or competing in 2009 any material line of business in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or less;any geographic area.
(iii) any Contractis a loan and credit agreement, note, debenture, bond, indenture or other than a Benefit and Compensation Arrangement, that is reasonably expected similar Contract pursuant to provide for payments to, or provide for payments from, a Transferred Entity in excess of $10,000,000 in 2009;
(iv) any Contract prohibiting or materially restricting the ability of any Transferred Entity to conduct its business, to engage in any business or operate in any geographical area or to compete with any Person;
(v) any Contract for any joint venture, strategic alliance, partnership or similar arrangement involving a sharing of profits or expenses or payments based on revenues, profits, or assets under management of any Affiliate of Parent or any Fund that is reasonably expected to account for revenue to the BGI Business in 2009 in excess of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be material to the Transferred Entities, taken as a whole;
(vi) any Contract relating to which any Indebtedness of a Transferred Entity in an amount in excess the Company or any of $5,000,000its Subsidiaries, other than: (A) any mortgage or similar Indebtedness secured by specific property owned by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closing;
(vii) any Contract (including any so-called take-or-pay or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any Transferred Entity in respect of the BGI Business that would reasonably be expected to be material to the Transferred Entities, taken as a whole, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person (other than any Transferred Entity) in each case in excess of $10,000,0005,000,000 is outstanding or may be incurred, other than any such Contract between or among any of the Company or any of its Subsidiaries;
(viiiiv) by its terms calls for aggregate payments to or by the Company or any of its Subsidiaries of more than $5,000,000, except for any such Contract that provides for earn-outs may be canceled, without any penalty or other similar contingent obligations that would reasonably be expected liability to result the Company or any of its Subsidiaries in annual payments in 2009 excess of $5,000,000 or more500,000, within one year;
(ixv) any Contract was entered into since after January 12, 2007 2000, to which the Company or any of its Subsidiaries is a party for the acquisition or disposition by the Company or any of a Person its Subsidiaries of properties or a division assets for, in each case, aggregate consideration of a Person, or more than $5,000,000 except for the acquisition or sale acquisitions and dispositions of any properties and assets (including Intellectual Property), properties, equity interests or rights, other than any such sale or acquisition in the ordinary course of business (including acquisitions and dispositions of inventory);
(vi) involves any exchange traded, over-the-counter or other swap, cap, floor, collar, futures contract, forward contract, option or any such sale other derivative financial instrument;
(vii) constitutes a joint venture, partnership, limited liability or acquisition other similar agreement (excluding licensing Contracts) relating to the formation, creation, operation, management or control of any partnership or joint venture that would not reasonably be expected to be is material to the Transferred Entities, taken as a whole; and
(x) any BGI Affiliate Arrangement that will be in effect after the Closing.
(b) Seller has made available to Buyer prior to the date of this Agreement a complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effect, and is valid and binding on the Transferred Entity that is a party thereto, and, to the Knowledge of Seller, on each other party thereto. There exists no breach or default of any Significant Contract on the part of any Transferred Entity which (with or without notice or lapse of time or both) would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.
(c) As business of the date hereof, no Transferred Entity has entered into Company and is bound by or subject to any of the following:
(i) other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practice, any Contract providing for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000;
(ii) other than Contracts entered into in the ordinary course of business, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entitiesits Subsidiaries, taken as a whole; or
(iiiviii) is an agreement with respect to the employment of any director or executive officer of the Company. Each Contract of the type described in this Section 3.1(t) is referred to herein as a “Company Contract”. Each Company Contract (and each “standstill” agreement that restricts the Company or any of its Subsidiaries from acquiring the shares or assets of another Person) is valid and binding on the Company or Subsidiary party thereto and, to the Knowledge of the Company, each other than Contracts entered into party thereto, and is in full force and effect, except for bankruptcy and similar laws affecting the ordinary course enforcement of business consistent with past practicecreditors’ rights generally or the availability of equitable remedies, any and the Company or Subsidiary party thereto have performed all obligations required to be performed by them to the date hereof under each Company Contract requiring any Transferred Entity (A) and, to co-invest with any the Knowledge of the Company, each other Personparty to each Company Contract has performed all obligations required to be performed by it under such Company Contract, (B) to provide seed capital or similar investment or (C) to invest in any investment productexcept, in each case in an amount in excess of $5,000,000 individually.
(d) Notwithstanding anything to the contrary contained in this Agreementcase, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is has not had or would not reasonably be expected to provide for payments to have, individually or in the aggregate, a Transferred Entity in excess of $10,000,000 in 2009Material Adverse Effect.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard forms.
Appears in 2 contracts
Sources: Merger Agreement (Edo Corp), Merger Agreement (Itt Corp)
Contracts. (a) Section 4.13(aPart 2.15(a) of the Seller’s Company Disclosure Schedules contains a complete and correct list of all of the following ContractsSchedule sets forth, in effect as of the date of this Agreement, an accurate and complete list of each Contract (or group of related Contracts) to which a Transferred Entity any of the Acquired Companies is a party, by which any of the Acquired Companies is bound by or subject to, or pursuant to which any of the BGI Business Acquired Companies is conducted (an obligor or a beneficiary, or which will be assigned as a part of the “Specified Contracts”):Acquired Limited Partnership Assets, which:
(i) any Contract for involves performance of services or delivery of goods or materials, the placement, distribution performance of which extends over a period of more than one year or sale of shares, units that otherwise involves an amount or other ownership interests of a Fund that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity value in excess of $5,000,000 in 2009100,000;
(ii) any administration agreement or any other Contract is for the provision of administrative services that is reasonably expected to provide for payments to, or provide for payments from a Transferred Entity in 2009 capital expenditures in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or less100,000;
(iii) any Contractis a mortgage, indenture, guarantee, loan or credit agreement, security agreement or other Contract relating to Indebtedness, other than a Benefit accounts receivables and Compensation Arrangement, that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity payables in excess the ordinary course of $10,000,000 in 2009business;
(iv) any Contract prohibiting is a lease or materially restricting the ability sublease of any Transferred Entity real or personal property, or that otherwise affects the ownership of, leasing of, title to conduct its businessor use of, to engage in any business real or operate in any geographical area personal property (except personal property leases and conditional sales agreements having a value per item or to compete with any Personaggregate payments of less than $100,000 and a term of less than one year);
(v) is for the employment of, or receipt of any services from, any manager, director, officer or Employee of any of the Acquired Companies or any other Person on a full-time, part-time, consulting or other basis providing annual compensation in excess of $100,000;
(vi) provides for severance, termination or similar pay to any of the Acquired Companies’ current or former managers, directors, officers, Employees or consultants or other independent contractors;
(vii) provides for a loan or advance of any amount to any manager, director, officer or other Employee of any of the Acquired Companies, other than advances for travel and other appropriate business expenses in the ordinary course of business;
(viii) licenses any Person to manufacture or reproduce any of the Acquired Companies’ products, services or technology or any Contract for to sell or distribute any of the Acquired Companies’ products, services or technology;
(ix) is a joint venture, strategic alliance, partnership or similar arrangement other Contract involving any joint conduct or sharing of any business, venture or enterprise, or a sharing of profits or expenses losses or payments based on revenues, profits, pursuant to which any of the Acquired Companies has any ownership interest in any other Person or assets under management of any Affiliate of Parent or any Fund that is reasonably expected to account for revenue to the BGI Business in 2009 in excess of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be material to the Transferred Entities, taken as a wholebusiness enterprise;
(vix) contains any Contract relating covenant limiting the right of any of the Acquired Companies to engage in any Indebtedness line of a Transferred Entity in an amount in excess of $5,000,000business or to compete (geographically or otherwise) with any Person, other than: (A) granting any mortgage exclusive rights to make, sell or distribute the Acquired Companies’ products, granting any “most favored nations” or similar Indebtedness secured by specific property owned rights or otherwise prohibiting or limiting the right of any of the Acquired Companies to make, sell or distribute any products or services;
(xi) involves payments based, in whole or in part, on profits, revenues, fee income or other financial performance measures of any of the Acquired Companies;
(xii) is a power of attorney granted by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following of the ClosingAcquired Companies;
(viixiii) is a written warranty, guaranty or other similar undertaking with respect to contractual performance extended by any Contract of the Acquired Companies other than in the ordinary course of business;
(including xiv) is a settlement agreement with respect to any so-called take-or-pay pending or keep well agreements) under which threatened Legal Proceeding entered into within three years prior to the date of this Agreement, other than (A) any Person has directly releases immaterial in nature or indirectly guaranteed amount entered into with former Employees or assumed Indebtedness, liabilities or obligations independent contractors of any Transferred Entity in respect of the BGI Business that would reasonably be expected to be material to the Transferred Entities, taken as a whole, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person (other than any Transferred Entity) in each case in excess of $10,000,000;
(viii) any Contract that provides for earn-outs or other similar contingent obligations that would reasonably be expected to result in annual payments in 2009 of $5,000,000 or more;
(ix) any Contract entered into since January 1, 2007 for the acquisition or disposition of a Person or a division of a Person, or for the acquisition or sale of any assets (including Intellectual Property), properties, equity interests or rights, other than any such sale or acquisition Acquired Companies in the ordinary course of business in connection with routine cessation of such Employee’s or independent contractor’s employment with any of the Acquired Companies or (B) settlement agreements for cash only (which has been paid) and does not exceed $50,000 as to such settlement;
(xv) was entered into other than in the ordinary course of business and that involves an amount or value in excess of $100,000;
(xvi) is an agreement or contract with the Seller or any such sale of its Affiliates;
(xvii) is an agreement between two or acquisition that would not reasonably be expected more Acquired Companies;
(xviii) contains or provides for an express undertaking by the Acquired Companies to be responsible for consequential or liquidated Damages; or
(xix) is otherwise material to the Transferred Entitiesbusiness, taken properties or assets of the Acquired Companies and under which the consequences of a default or termination could have a Material Adverse Effect on any of the Acquired Companies or the Acquired Limited Partnership Assets. Notwithstanding the foregoing or any other provision contained in this Agreement, the Material Contracts shall not include the Corn Delivery Agreements entered into by and between Seller and its members for purposes of supplying corn for the operation of the ethanol production business of Agri-Energy, L.P. (the “Corn Delivery Agreements”). The Corn Delivery Agreements are neither an asset or property of the Acquired Companies nor included in the Acquired Limited Partnership Assets and shall not be assigned or otherwise conveyed to Purchaser or any of its Affiliates either directly or indirectly, and as a whole; and
(x) such, any BGI Affiliate Arrangement that will be in effect after representation, warranty, or covenant relating to the ClosingCorn Delivery Agreements is expressly disclaimed.
(b) Seller has The Acquired Companies have made available to Buyer prior to Purchaser an accurate and complete copy (in the date of this Agreement a complete and correct copy case of each written Specified Contract (except in certain instances such Specified Contracts Contract) or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and an accurate and complete descriptions of all material terms written summary (in the case of each oral Specified Contract) of each Contract listed or required to be listed on Part 2.15(a) of the Company Disclosure Schedule (collectively, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement“Material Contracts”). Each With respect to each such Material Contract:
(i) Specified Contractthe Contract is legal, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis valid, binding, enforceable and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effecteffect against the Acquired Companies that are party thereto or, and is valid and binding on to the Transferred Entity that is a Acquired Companies’ Knowledge, the other party or parties thereto, except to the extent it has previously expired in accordance with its terms;
(ii) the Acquired Companies have and, to the Knowledge Acquired Companies’ Knowledge, the other parties to the Contract have performed all of Sellertheir respective obligations required to be performed under the Contract;
(iii) The Acquired Companies are not, on each nor to the Acquired Companies’ Knowledge, is any other party thereto. There exists no to the Contract in breach or default of any Significant under the Contract on the part of any Transferred Entity which and no event has occurred or circumstance exists that (with or without notice or notice, lapse of time or both) wouldwould constitute a breach or default by any of the Acquired Companies or, individually to the Acquired Companies’ Knowledge, by any such other party or permit termination, cancellation, acceleration, suspension or modification of any obligation or loss of any benefit under, result in any payment becoming due under, result in the aggregateimposition of any Encumbrances on any of the Company Units or any of the properties or assets of the Acquired Companies under, reasonably be expected or otherwise give rise to be material any right on the part of any Person to exercise any remedy or obtain any relief under, the Contract, nor have any of the Acquired Companies given or received notice or other communication alleging the same; and
(iv) the Contract is not under negotiation (nor has written demand for any renegotiation been made), no party has repudiated any portion of the Contract and the Acquired Companies have no Knowledge that any party to the Transferred Entities, taken as a whole. No Transferred Entity has received any written notice of an intention to terminate, Contract does not intend to renew or to challenge it at the validity or enforceability end of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a wholeits current term.
(c) As of To the date hereofAcquired Companies’ Knowledge, no Transferred Entity has entered into and is bound by manager, director, agent, Employee or subject to consultant or other independent contractor of any of the following:
Acquired Companies is a party to, or is otherwise bound by, any Contract, including any confidentiality, noncompetition or proprietary rights agreement, with any other Person that in any way adversely affects or will affect (i) other than investment management and distribution Contracts entered into in the ordinary course performance of business consistent with past practice, any Contract providing his or her duties for the indemnification of any Person with respect to liabilitiesAcquired Companies, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000;
(ii) other than Contracts entered into in the ordinary course of business, any type of Contract his or her ability to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material assign to the Transferred EntitiesAcquired Companies rights to any invention, taken as a whole; or
improvement, discovery or information relating to the business of any of the Acquired Companies or (iii) other than Contracts entered into in the ordinary course ability of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individually.
(d) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue Acquired Companies to Seller and conduct its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangementsbusiness as currently conducted or as proposed to be conducted.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard forms.
Appears in 2 contracts
Sources: Acquisition Agreement (Gevo, Inc.), Acquisition Agreement (Gevo, Inc.)
Contracts. (a) Section 4.13(a) of Neither the Seller’s Disclosure Schedules contains a complete and correct list of all of the following Contracts, in effect as of the date of this Agreement, to which a Transferred Entity Company nor any Company Subsidiary is a party, is party to or bound by or subject to, or pursuant to which the BGI Business is conducted (the “Specified Contracts”):any:
(i) any Contract for the placement, distribution employment agreement or sale of shares, units or other ownership interests of a Fund that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $5,000,000 in 2009employment contract;
(ii) any administration agreement covenant not to compete or other covenant restricting the business or operations of the Company or any other Contract for the provision of administrative services that is reasonably expected to provide for payments to, or provide for payments from a Transferred Entity in 2009 in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or lessCompany Subsidiary;
(iii) Contract with any Contract, officer or director of the Company (other than a Benefit and Compensation Arrangement, that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $10,000,000 in 2009employment agreements covered by clause (i) above);
(iv) Contract under which the Company or a Company Subsidiary has borrowed or agreed to borrow any Contract prohibiting money from, or materially restricting 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 ability of any Transferred Entity to conduct its business, to engage Company or a Company Subsidiary in any business or operate such case which, individually, is in any geographical area or to compete with any Personexcess of $1,000,000;
(v) any Contract for any joint venture, strategic alliance, partnership or similar arrangement involving a sharing of profits or expenses or payments based on revenues, profits, or assets under management of any Affiliate of Parent or any Fund that is reasonably expected to account for revenue to the BGI Business in 2009 in excess of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be material to the Transferred Entities, taken as a whole;
(vi) any Contract relating to any Indebtedness of a Transferred Entity in an amount in excess of $5,000,000, other than: (A) any mortgage or similar Indebtedness secured by specific property owned by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closing;
(vii) any Contract (including any so-called take-or-pay or keep well keepwell agreements) under which (A) any Person person including the Company or a Company Subsidiary, has directly or indirectly guaranteed indebtedness, liabilities or assumed Indebtednessobligations of the Company or a Company Subsidiary in excess of $1,000,000 or (B) the Company or a Company Subsidiary has directly or indirectly guaranteed indebtedness, liabilities or obligations of any Transferred Entity person, including the Company or another Company Subsidiary, in respect excess of $1,000,000 (in each case other than endorsements for the BGI Business that would reasonably be expected to be material to purpose of collection in the Transferred Entitiesordinary course of business);
(vi) Contract under which the Company or a Company Subsidiary has, taken as a wholedirectly or indirectly, made any advance, loan, extension of credit or capital contribution to, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities other investment in, any person in excess of any Person $1,000,000 (other than the Company or a Company Subsidiary and other than extensions of trade credit in the ordinary course of business);
(vii) Contract granting a Lien upon any Transferred Entity) Company Property or any other asset of the Company or any Company Subsidiary securing indebtedness or other obligations, in each case in excess of $10,000,0001,000,000;
(viii) Contract providing for indemnification of any Contract that provides for earn-outs or other similar contingent obligations that would reasonably be expected to result person in annual payments in 2009 excess of $5,000,000 1,000,000 with respect to material liabilities relating to any current or moreformer business of the Company, a Company Subsidiary or any predecessor person;
(ix) any a Contract entered into since January 1, 2007 for the acquisition or disposition of a Person or a division of a Person, or for the acquisition or sale of any assets (including Intellectual Property), properties, equity interests or rights, other than any such sale or acquisition not made in the ordinary course of business in which the amount involved exceeds $1,000,000;
(A) a Contract with a Governmental Entity in which the amount involved exceeds $1,000,000 or (B) a material license or permit by or from any Governmental Entity;
(xi) currency exchange, interest rate exchange, commodity exchange or similar Contract;
(xii) a Contract for any joint venture, partnership or similar arrangement;
(xiii) a lease, sublease or similar agreement with respect to Company Property in which the amount involved exceeds $1,000,000;
(xiv) a Contract under which the Company or a Company Subsidiary has agreed to purchase or lease any real property or any such sale interest in real property for a purchase price in excess of $1,000,000 or acquisition an annual rental in excess of $1,000,000 or to construct any improvements on real property or a leasehold interest in real property for a contract sum in excess of $1,000,000; or
(xv) a Contract other than as set forth above to which the Company or a Company Subsidiary is a party or by which it or any of its assets or businesses is bound or subject that would not reasonably be expected to be is material to the Transferred Entities, taken as a whole; and
(x) any BGI Affiliate Arrangement that will be business of the Company and the Company Subsidiaries or the use or operation of their assets and in effect after which the Closingamount involved exceeds $10,000,000.
(b) Seller has made available All Contracts required to Buyer prior be listed in the Company Disclosure Letter (the "Company Contracts") are valid, binding and enforceable against the Company or the applicable Company Subsidiary in accordance with their respective terms and, to the date knowledge of this Agreement a complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contractthe Company, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is are in full force and effecteffect in all material respects. The Company or the applicable Company Subsidiary has performed all material obligations required to be performed by it to date under the Company Contracts, and it is valid and binding on not (with or without the Transferred Entity that is a party theretolapse of time or the giving of notice, or both) in breach or default in any material respect thereunder and, to the Knowledge knowledge of Sellerthe Company, on each no other party thereto. There exists no breach or default of to any Significant Company Contract on the part of any Transferred Entity which is (with or without notice or the lapse of time or the giving of notice, or both) would, individually in breach or default in any material respect thereunder. None of the aggregate, reasonably be expected to be material to Company and the Transferred Entities, taken as a whole. No Transferred Entity Company Subsidiaries has received any written notice of an the intention to terminate, not to renew or to challenge the validity or enforceability of any Significant party to terminate any Company Contract, the terminationand no party has, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.
(c) As knowledge of the date hereof, no Transferred Entity has entered into and is bound by or subject to any of the following:
(i) other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practiceCompany, any Contract providing for the indemnification such intention. Complete and correct copies of any Person all Company Contracts, together with respect to liabilitiesall modifications and amendments thereto, whether absolute, accrued, contingent have been previously delivered or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000;
(ii) other than Contracts entered into in the ordinary course of business, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a whole; or
(iii) other than Contracts entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individually.
(d) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard formsParent.
Appears in 2 contracts
Sources: Merger Agreement (Boyd Gaming Corp), Merger Agreement (Boyd Gaming Corp)
Contracts. (a) Section 4.13(a4(n) of the Seller’s Disclosure Schedules contains a complete and correct list Schedule lists as of the date hereof all of the following Contracts, in effect as of the date of this Agreement, to which a Transferred Entity is a party, is bound by or subject to, or pursuant Contracts (other than purchase orders) to which the BGI Business Company or any of its Subsidiaries is conducted a party or by which the Company or any of its Subsidiaries or any of their assets, rights or properties is bound (collectively together with any Contract entered into after the date hereof and prior to the Closing in accordance with this Agreement that, if entered into prior to the date hereof, would be required to be set forth on Section 4(n) of the Disclosure Schedule, together with the Contracts required to be disclosed on Section 4(m) of the Disclosure Schedule the “Specified Material Contracts”):
(i) Any Contract (or group of related Contracts) pursuant to which the Company or any Contract for of its Subsidiaries is obligated to make payments, after the placementdate hereof, distribution or sale of shares, units or other ownership interests of a Fund that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $5,000,000 in 20091,000,000;
(ii) any administration agreement Any Contract (or group of related Contracts) pursuant to which the Company or any other Contract for of its Subsidiaries is entitled to receive payments, after the provision of administrative services that is reasonably expected to provide for payments todate hereof, or provide for payments from a Transferred Entity in 2009 in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or less2,500,000;
(iii) any Any Related Party Contract, other than a Benefit and Compensation Arrangement, that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $10,000,000 in 2009;
(iv) Any Contract under which the Company or any of its Subsidiaries has advanced or loaned any amount to any of its directors, officers, or employees or has made a material loan to an unrelated third party;
(v) Any Contract (A) under which the Company or any of its Subsidiaries has any outstanding indebtedness, obligation or liability for borrowed money or has the right or obligation to incur any such indebtedness, obligation or liability in excess of $500,000; or (B) mortgaging, pledging or otherwise placing a Lien on any of the assets of the Company or its Subsidiaries (other than Permitted Encumbrances);
(vi) Any bonds or Contracts of guarantee in which the Company or any of its Subsidiaries acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person (other than the Company or any of its Subsidiaries) in excess of $25,000;
(vii) Any Contract (A) containing non-competition provisions prohibiting or materially restricting the ability Company or any of any Transferred Entity to conduct its business, to engage Subsidiaries from competing in any business or operate in any geographical area or that contains an exclusivity clause in favor of an unrelated third party or a covenant prohibiting the Company or any of its Subsidiaries from soliciting any Person (including any employees, consultants, customers, suppliers or vendors) or (B) granting a “most-favored nation” status to compete with any Person;
(vviii) any Any collective bargaining or labor Contract;
(ix) Any Contract for any joint venture, strategic alliance, partnership hedging or similar arrangement involving a sharing of profits derivative transactions;
(x) Any employment, independent contractor or expenses consulting Contract, in each case, with annual payments or severance or termination payments based on revenues, profits, or assets under management of any Affiliate of Parent or any Fund that is reasonably expected to account for revenue to the BGI Business in 2009 in excess of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be material to the Transferred Entities, taken as a whole100,000;
(vixi) any Contract relating to any Indebtedness future capital expenditures by the Company or its Subsidiaries in excess of $100,000 in the aggregate over the next 12 months;
(xii) Any Contract involving the resolution or settlement of any actual or threatened Proceeding against or involving the Company or any of its Subsidiaries, pursuant to which the Company or its Subsidiaries is subject to continuing obligations;
(xiii) Any Lease;
(xiv) Any Contract for the lease of personal property under which the Company or any of its Subsidiaries is the lessee and is obligated to make payments in excess of $100,000 per annum;
(xv) Any Contract with a Transferred Governmental Entity in involving an amount in excess of $5,000,000, other than: (A) any mortgage or similar Indebtedness secured by specific property owned by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closing10,000;
(viixvi) Any joint venture, partnership or strategic alliance or any Contract (including similar agreement involving any so-called take-or-pay or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtednesssharing of profits, liabilities or obligations of any Transferred Entity in respect of the BGI Business that would reasonably be expected to be material to the Transferred Entitieslosses, taken as a whole, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness costs or liabilities of the Company or any Person (of its Subsidiaries with any other than any Transferred Entity) in each case in excess of $10,000,000Person;
(viiixvii) any Contract that provides for earn-outs or other similar contingent obligations that would reasonably be expected to result in annual payments in 2009 of $5,000,000 or more;
(ix) any Contract Any agreement entered into since after January 1, 2007 2014 providing for the acquisition or disposition of a Person any business, stock or a division of a Personassets (whether by merger, or for the acquisition or sale of stock, sale of assets or otherwise) for a purchase price in excess of $500,000 or which contains any assets material outstanding obligations of the Company or its Subsidiaries with respect to any “earn out,” deferred purchase price, indemnification or similar contingent payment obligation;
(including Intellectual Property), properties, equity interests or rights, other than any such sale or acquisition in the ordinary course of business or any such sale or acquisition that would not reasonably be expected to be material to the Transferred Entities, taken as xviii) Any Contract with (A) a wholeMaterial Customer and (B) a Material Supplier; and
(xxix) Any Contract to enter into any BGI Affiliate Arrangement that will be of the foregoing. Except as set forth in effect after Section 4(n) of the Closing.
Disclosure Schedule, neither the Company nor any of its Subsidiaries is (b) Seller has made available to Buyer prior to with or without the date lapse of this Agreement a complete and correct copy time or the giving of each written Specified Contract (except in certain instances such Specified Contracts notice, or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((iboth), (ii) and (iii) being the “Significant Contracts”) or is alleged to be, in full force and effect, and is valid and binding on the Transferred Entity that is a party theretomaterial breach or default of or under any Material Contract, and, to the Knowledge of Sellerthe Company, on each no other party thereto. There exists no breach or default of to any Significant such Material Contract on the part of any Transferred Entity which is (with or without the lapse of time or the giving of notice, or both), or is alleged to be, in material breach or default thereunder. Except as set forth in Section 4(n) of the Disclosure Schedule, no event has occurred that with notice or lapse of time or both) wouldboth would constitute a material breach or default, individually or result in the aggregate, reasonably be expected to be loss of any material benefit of or to the Transferred EntitiesCompany or any of its Subsidiaries, taken as a wholeor permit the termination, material modification, or acceleration under any Material Contract. No Transferred Entity Each Material Contract is valid, binding and in full force and effect and neither the Company nor any of its Subsidiaries has prior to the date hereof received any written or, to the Knowledge of the Company, oral notice of an the intention of any Person to terminatecancel, not withdraw, accelerate, fail to renew or to challenge the validity or enforceability of terminate any Significant Material Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.
(c) As of the date hereof, no Transferred Entity has entered into and is bound by or subject to any of the following:
(i) other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practice, any Contract providing for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000;
(ii) other than Contracts entered into in the ordinary course of business, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a whole; or
(iii) other than Contracts entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individually.
(d) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller . The Company has made available to Buyer a true correct and complete copy of its form of counterparty security lending (borrower default) indemnity each Material Contract together with all amendments, modifications and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard formswaivers thereto.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Harsco Corp), Stock Purchase Agreement (Compass Group Diversified Holdings LLC)
Contracts. (a) Except for this Agreement, except as filed with the SEC, and except as set forth in Section 4.13(a) 4.15 of the Seller’s Company Disclosure Schedules contains a complete and correct list of all of the following ContractsLetter, in effect as of the date hereof, neither the Company nor any of this Agreement, to which a Transferred Entity its Subsidiaries is a party, party to or is bound by or subject to, or pursuant to which the BGI Business is conducted (the “Specified Contracts”):
any Contract that (i) any Contract for the placement, distribution or sale of shares, units or other ownership interests of a Fund that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $5,000,000 in 2009;
(ii) any administration agreement or any other Contract for the provision of administrative services that is reasonably expected to provide for payments to, or provide for payments from a Transferred Entity in 2009 in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or less;
(iii) any Contract, other than a Benefit and Compensation Arrangement, that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $10,000,000 in 2009;
(iv) any Contract prohibiting or materially restricting the ability of any Transferred Entity to conduct its business, to engage in any business or operate in any geographical area or to compete with any Person;
(v) any Contract for any joint venture, strategic alliance, partnership or similar arrangement involving a sharing of profits or expenses or payments based on revenues, profits, or assets under management of any Affiliate of Parent or any Fund that is reasonably expected to account for revenue to the BGI Business in 2009 in excess of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected required to be material to filed by the Transferred Entities, taken Company as a whole;
(vi“material contract” pursuant to Item 601(b)(10) any Contract relating to any Indebtedness of a Transferred Entity in an amount in excess of $5,000,000, other than: (A) any mortgage or similar Indebtedness secured by specific property owned by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following Regulation S-K under the Closing;
(vii) any Contract (including any so-called take-or-pay or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any Transferred Entity in respect of the BGI Business that would reasonably be expected to be material to the Transferred Entities, taken as a whole, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person (other than any Transferred Entity) in each case in excess of $10,000,000;
(viii) any Contract that provides for earn-outs or other similar contingent obligations that would reasonably be expected to result in annual payments in 2009 of $5,000,000 or more;
(ix) any Contract entered into since January 1, 2007 for the acquisition or disposition of a Person or a division of a Person, or for the acquisition or sale of any assets (including Intellectual Property), properties, equity interests or rights, other than any such sale or acquisition in the ordinary course of business or any such sale or acquisition that would not reasonably be expected to be material to the Transferred Entities, taken as a whole; and
(x) any BGI Affiliate Arrangement that will be in effect after the Closing.
(b) Seller has made available to Buyer prior to the date of this Agreement a complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified ContractSecurities Act, (ii) Investment Advisory Arrangement is a Contract that expressly requires the Company or any of its Subsidiaries not to compete in any material manner or other Contract that (A) expressly limits in any material respect either the type of business in which accounts for more than $1,000,000 the Company or the Subsidiaries of revenue the Company or any of their respective Affiliates may engage or the manner or geographic area in which any of them may so engage in any business, (B) would expressly require the disposition of any material assets or line of business of the Company or its Subsidiaries or any of their respective Affiliates as a result of the consummation of the transactions contemplated by this Agreement, (C) is a material Contract that expressly grants “most favored nation” status to the BGI Business on an annualized basis and counterparty thereto or (D) expressly prohibits or limits, in any material respect, the right of the Company or any of its Subsidiaries to make, sell or distribute any products or services or use, transfer, license, distribute or enforce any of their respective Intellectual Property rights or (iii) Contract that is reasonably expected to provide under which any Acquired Company has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness for payments to a Transferred Entity borrowed money in excess of $1,000,000 (except for such indebtedness between the Acquired Companies or guaranties by any Acquired Company of indebtedness of any Acquired Company) (each such Contract as described in 2009 that contains key person provisions pertaining this Section 4.15, a “Material Contract”). For purposes of this Agreement, “Contract” means any note, bond, mortgage, indenture, contract, agreement, lease or other instrument or obligation, together with all amendments thereto. Each Material Contract is valid and binding on the Company and each of its Subsidiaries party thereto and, to employees the knowledge of a Transferred Entity ((i)the Company, (ii) any other party thereto, and (iii) being the “Significant Contracts”) is in full force and effect, and is except in each case for such failures to be valid and binding on or to be in full force and effect that individually or in the Transferred Entity that aggregate do not have, and would not reasonably be expected to have, a Material Adverse Effect. Except individually or in the aggregate as does not have, and would not reasonably be expected to have, a Material Adverse Effect, (x) there is a no default under any Contract by the Company or any of its Subsidiaries party thereto or, to the knowledge of the Company, any other party thereto, and, to and (y) no event has occurred that with the Knowledge of Seller, on each other party thereto. There exists no breach or default of any Significant Contract on the part of any Transferred Entity which (with or without notice or lapse of time or both) wouldthe giving of notice or both would constitute a default thereunder by the Company or any of its Subsidiaries party thereto or, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.
(c) As knowledge of the date hereof, no Transferred Entity has entered into and is bound by or subject to any of the following:
(i) other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practiceCompany, any Contract providing for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000;
(ii) other than Contracts entered into in the ordinary course of business, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a whole; or
(iii) other than Contracts entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individuallyparty thereto.
(d) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard forms.
Appears in 2 contracts
Sources: Merger Agreement (I Flow Corp /De/), Merger Agreement (Kimberly Clark Corp)
Contracts. (a) Section 4.13(a) of the Seller’s Disclosure Schedules contains a complete and correct list of all of the following ContractsSchedule 4.24 lists, in effect as of the date of this Agreement, to which a Transferred Entity is a party, is bound by or subject to, or pursuant all Contracts to which the BGI Business Company or any of its Subsidiaries is conducted (a party and that fall within any of the “Specified Contracts”):following categories:
(ia) any Contract for Contracts not entered into in the placement, distribution ordinary course of the Company's and its Subsidiaries' business other than those that are not material to the Company's or sale of shares, units or other ownership interests of a Fund that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $5,000,000 in 2009its Subsidiaries' business;
(iib) any administration agreement or any other Contract for the provision of administrative services that is reasonably expected to provide for payments tojoint venture, or provide for payments from a Transferred Entity in 2009 in excess of $10,000,000 partnership and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or lesssimilar agreements;
(iiic) Contracts containing covenants purporting by their express terms to limit the freedom of the Company or its Subsidiaries to compete in any Contract, other than a Benefit and Compensation Arrangement, that is reasonably expected line of business in any geographic area or to provide for payments to, hire any individual or provide for payments from, a Transferred Entity in excess group of $10,000,000 in 2009individuals;
(ivd) any Contract prohibiting Contracts that, after the Effective Time, would have the effect of limiting the freedom of Parent or materially restricting its Subsidiaries (other than the ability of any Transferred Entity Company and its Subsidiaries) to conduct its business, to engage compete in any line of business or operate in any geographical geographic area or to compete with hire any Personindividual or group of individuals;
(ve) Contracts with any Contract labor organization or union;
(f) Contracts providing for any joint venture, strategic alliance, partnership "earn-outs," "savings guarantees," "performance guarantees" (other than performance guarantees for wholly owned Subsidiaries of the Company) or similar arrangement other contingent payments by the Company or its Subsidiaries involving a sharing more than $50,000 over the term of profits the Contract; and
(g) Contracts involving payments to or expenses or payments based on revenues, profits, or assets under management of any Affiliate of Parent or any Fund that is reasonably expected to account for revenue to by the BGI Business in 2009 in excess of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be material to the Transferred Entities, Company and its Subsidiaries taken as a whole;
(vi) any Contract relating , or which are reasonably likely to any Indebtedness of a Transferred Entity result in an amount in excess of $5,000,000, other than: (A) any mortgage or similar Indebtedness secured the incurrence by specific property owned by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closing;
(vii) any Contract (including any so-called take-or-pay or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any Transferred Entity in respect of the BGI Business that would reasonably be expected to be material to the Transferred EntitiesCompany and its Subsidiaries, taken as a whole, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person (other than any Transferred Entity) in each case in excess liabilities, of $10,000,000;
(viii) any Contract that provides for earn-outs or other similar contingent obligations that would reasonably be expected to result in annual payments in 2009 of at least $5,000,000 or more;
(ix) any Contract entered into since January 1, 2007 for the acquisition or disposition of a Person or a division of a Person, or for the acquisition or sale of any assets (including Intellectual Property), properties, equity interests or rights, other than any per year. All such sale or acquisition in the ordinary course of business or any such sale or acquisition that would not reasonably be expected to be material to the Transferred Entities, taken as a whole; and
(x) any BGI Affiliate Arrangement that will be in effect after the Closing.
(b) Seller has made available to Buyer prior to the date of this Agreement a complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effect, and is are valid and binding on obligations of the Transferred Entity that is a party theretoCompany or its Subsidiaries, as the case may be, and, to the Knowledge knowledge of Sellerthe Company, on the valid and binding obligation of each other party thereto. There exists no breach or default of any Significant Contract on the part of any Transferred Entity which (with or without notice or lapse of time or both) would, except such Contracts that, if not so valid and binding, individually or in the aggregate, have not had and could not reasonably be expected to be material have a Company Material Adverse Effect. Neither the Company or its Subsidiaries, nor, to the Transferred Entitiesknowledge of the Company, taken as any other party thereto, is in violation of or in default in respect of, nor has there occurred an event or condition, that with the passage of time or giving of notice (or both), would constitute a whole. No Transferred Entity has received default under or permit the termination of, any written notice of an intention to terminate, not to renew such Contract except such violations or to challenge the validity defaults under or enforceability of any Significant Contract, the termination, failure to renew or challenge of which wouldterminations that, individually or in the aggregate, have not had and could not reasonably be expected to be material to the Transferred Entities, taken as have a wholeCompany Material Adverse Effect.
(c) As of the date hereof, no Transferred Entity has entered into and is bound by or subject to any of the following:
(i) other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practice, any Contract providing for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000;
(ii) other than Contracts entered into in the ordinary course of business, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a whole; or
(iii) other than Contracts entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individually.
(d) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard forms.
Appears in 2 contracts
Sources: Merger Agreement (Andrew Corp), Agreement and Plan of Merger (Allen Telecom Inc)
Contracts. (a) Section 4.13(a3.11(a) of the Seller’s Company Disclosure Schedules contains Schedule sets forth a complete and correct accurate list of all contracts, agreements, instruments and any other arrangements (written or oral) to which the Company or any of its Subsidiaries is a party (or which is otherwise binding on the following Contracts, in effect Company or any of its Subsidiaries) as of the date of this AgreementAgreement with respect to any of the following (each such contract, to which a Transferred Entity is a partyagreement, is bound by or subject toinstrument and other arrangement, or pursuant to which the BGI Business is conducted (collectively, the “Specified Company Material Contracts”):
): (i) in which the Company and/or its Subsidiaries will spend or receive (or are expected to spend or receive) more than $150,000 during the current fiscal year or during any Contract for the placementfuture fiscal year, distribution or sale of shares, units (ii) where any non-competition or other ownership interests provision prohibits or otherwise restricts, in any material way, the Company or any of a Fund that its Subsidiaries or any of their respective businesses from freely engaging in any business activity anywhere in the world, (iii) any “material contract” (as such term is reasonably expected defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to provide for payments tothe Company and its Subsidiaries, (iv) any employment or provide for payments from, a Transferred Entity consulting agreement with any executive officer or other employee of the Company or any of its Subsidiaries or member of the Company Board earning an annual salary from the Company and its Subsidiaries in excess of $5,000,000 in 2009;
(ii) any administration agreement or any other Contract for the provision of administrative services that is reasonably expected to provide for payments to, or provide for payments from a Transferred Entity in 2009 in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or less;
(iii) any Contract150,000, other than a Benefit and Compensation Arrangementthose that are terminable by the Company or any of its Subsidiaries on no more than 30 days’ notice without material liability or financial obligation to the Company or any of its Subsidiaries, that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $10,000,000 in 2009;
(iv) any Contract prohibiting or materially restricting the ability of any Transferred Entity to conduct its business, to engage in any business or operate in any geographical area or to compete with any Person;
(v) any Contract for any joint venture, strategic alliance, partnership or similar arrangement involving a sharing of profits or expenses or payments based on revenues, profits, or assets under management of any Affiliate of Parent indebtedness owed by the Company or any Fund that is reasonably expected to account for revenue of its Subsidiaries (other than such indebtedness owed to the BGI Business in 2009 in excess Company or any of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be material its Subsidiaries), any loan made to the Transferred EntitiesCompany or any of its Subsidiaries (other any such loan made by the Company or any of its Subsidiaries), taken as a whole;
(vi) any Contract relating to guarantee by the Company or any Indebtedness of a Transferred Entity in an amount in excess its Subsidiaries of $5,000,000any obligation owed by another person or entity (other than the Company or any of its Subsidiaries), other than: (A) any mortgage or similar Indebtedness secured by specific property owned by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closing;
(vii) any Contract indemnification obligation of the Company or any of its Subsidiaries of any obligation owed by another person or entity (including other than the Company or any so-called take-or-pay of its Subsidiaries), (viii) the establishment or keep well agreements) under which operation of a partnership, joint venture, alliance or other formalized participation arrangement, (Aix) any Person has directly power of attorney or indirectly guaranteed similar instrument granted by the Company or assumed Indebtedness, liabilities or obligations any of any Transferred Entity in respect of the BGI Business that would reasonably be expected to be material to the Transferred Entities, taken as a whole, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person its Subsidiaries (other than any Transferred Entity) customs power of attorney granted in each case in excess the Ordinary Course of $10,000,000;
(viii) any Contract that provides for earn-outs or other similar contingent obligations that would reasonably be expected to result in annual payments in 2009 of $5,000,000 or more;
(ix) any Contract entered into since January 1, 2007 for the acquisition or disposition of a Person or a division of a Person, or for the acquisition or sale of any assets (including Intellectual PropertyBusiness), properties, equity interests or rights, other than any such sale or acquisition in the ordinary course of business or any such sale or acquisition that would not reasonably be expected to be material to the Transferred Entities, taken as a whole; and
(x) any BGI Affiliate Arrangement that will be grant by the Company or any of its Subsidiaries of “most favored nation” pricing provisions with respect to the purchase of any products, (xi) any hedging agreement or other financial agreement or arrangement designed to protect against fluctuations in effect after commodities prices or exchange rates or (xii) any arrangement with respect to the Closingreturn or warranty of products of the Company outside of generally applicable policies. The Company has made available to the Buyer a complete and accurate copy of each of the Company Material Contracts.
(b) Seller has made available to Buyer prior to the date of this Agreement a complete and correct copy of each written Specified Each Company Material Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effect, effect against the Company and is valid and binding on the Transferred Entity that is a any of its Subsidiaries party thereto, thereto and, to the Knowledge of SellerCompany’s Knowledge, on each other party thereto, in all material respects, except to the extent it has previously expired in accordance with its terms. There exists no breach The Company or a Subsidiary of the Company (as applicable) has performed all of its material obligations (except those that have not yet become due) under, and none of the Company nor any of its Subsidiaries is in material violation of or in material default of under (nor does there exist any Significant Contract on condition which, upon the part of any Transferred Entity which (with or without notice or lapse passage of time or the giving of notice or both, would cause such a material violation of or material default under) wouldany Company Material Contract. To the Company’s Knowledge, individually each other party to any Company Material Contract has performed all of its material obligations (except those that have not yet become due) under, and none of such other parties is in material violation of or in material default under (nor does there exist any condition which, upon the aggregatepassage of time or the giving of notice or both, reasonably be expected to be would cause such a material to the Transferred Entities, taken as a whole. No Transferred Entity has received violation of or material default under) any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant Company Material Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.
(c) As Except as disclosed in the Specified Company SEC Report Disclosure, neither the Company nor any of the date hereof, no Transferred Entity its Subsidiaries has entered into and is bound by any transaction with any Affiliate of the Company or any of its Subsidiaries or any transaction that would be subject to any proxy statement disclosure pursuant to Item 404 of the following:
(i) other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practice, any Contract providing for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000;
(ii) other than Contracts entered into in the ordinary course of business, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a whole; or
(iii) other than Contracts entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to coRegulation S-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individually.
(d) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard forms.K.
Appears in 2 contracts
Sources: Merger Agreement (Biosphere Medical Inc), Merger Agreement (Merit Medical Systems Inc)
Contracts. (a) Except for this Agreement and except for Contracts filed or furnished as exhibits to, or incorporated by reference into, the Publicly Available Company SEC Documents, Section 4.13(a3.15(a) of the Seller’s Company Disclosure Schedules contains Letter sets forth a true and complete and correct list of all each of the following ContractsContracts to which the Company or any of its Subsidiaries is a party (and any amendments, in effect supplements and modifications thereto) as of the date of this Agreement, to which a Transferred Entity is a party, is bound by or subject to, or pursuant to which the BGI Business is conducted (the “Specified Contracts”)::
(i) any Contract that would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(ii) any Contract (A) that purports to limit in any material respect either the type or scope of business in which the Company or any of the Subsidiaries of the Company (or, after the Effective Time, Parent or any of its Subsidiaries) may engage or the geographic area in which any of them may so engage in any business (including through provisions regarding non-competition or exclusivity), (B) in which an Acquired Company grants “most favored nation” or similar status to any of its customers that, following the Effective Time, would by its terms require Parent or its Subsidiaries (other than the Acquired Companies) to apply such status to their own customers, (C) that is a “take-or-pay” Contract requiring an Acquired Company to purchase a minimum amount of any product or service from the counterparty to such Contract or pay a financial penalty or (D) that provides for the placementAcquired Company to dispose of any material assets or line of business of the Acquired Companies (other than to the extent excluded in the exception set forth in clause (x) below and other than inventory in the ordinary course or business);
(iii) any (A) indenture, distribution loan or sale credit agreement, loan note, mortgage agreement, letter of shares, units credit or other ownership interests of a Fund that is reasonably expected to provide for payments toContract representing, or provide any guarantee of, indebtedness for payments from, a Transferred Entity borrowed money of an Acquired Company (other than indebtedness for borrowed money (i) in the form of trade credit or similar loans or advances entered into in the ordinary course of business or (ii) with an aggregate outstanding principal amount not in excess of $5,000,000 in 2009;
the aggregate) (iiexcept for such indebtedness between Acquired Companies or guarantees by any Acquired Company of indebtedness of any Acquired Company), (B) Contract in respect of swaps, ▇▇▇▇▇▇ or similar arrangements (other than any administration Contracts in respect of swaps, ▇▇▇▇▇▇ or similar arrangements entered into pursuant to International Swaps and Derivatives Association Master Agreements in the ordinary course of business consistent with the Company’s hedging policy made available to Parent), or (C) factoring agreement or any other Contract providing for the provision factoring of administrative services that is reasonably expected to Acquired Company receivables (1) which, in either case, does not provide for payments to, non-recourse treatment of the receivables factored or provide (2) pursuant to which the Acquired Companies have sold in fiscal year 2014 (or have or expect to sell in fiscal year 2015) Acquired Company receivables for payments from a Transferred Entity in 2009 amounts in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or less;
(iii) any Contract, other than a Benefit and Compensation Arrangement, that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $10,000,000 in 20095,000,000;
(iv) any Contract prohibiting establishing any material (A) joint venture or materially restricting partnership, or (B) strategic alliance with a third party for the ability joint development or marketing of any Transferred Entity to conduct its business, to engage in any business or operate in any geographical area or to compete with any Personproducts;
(v) any customer or supplier Contract for (including any joint venture, strategic alliance, partnership or similar arrangement involving customer Contract that is a sharing of profits or expenses or payments based on revenues, profits, or assets distribution Contract) under management of any Affiliate of Parent which the Company or any Fund that is reasonably expected to account for revenue to the BGI Business in 2009 in excess of its Subsidiaries (A) made or received payments of more than $10,000,000 on an annual during the fiscal year ended December 31, 2014 or (B) reasonably expects to make or annualizedreceive payments of more than $10,000,000 for the fiscal year ending December 31, 2015 and, in the case of either of clause (A) basis or that would reasonably be expected to be material to the Transferred Entitiesclause (B), taken as a wholeis not terminable upon notice of ninety (90) days or less without penalty;
(vi) any Contract relating that involves the licensing to any Indebtedness a third party of a Transferred Entity in an amount in excess Company Intellectual Property or the licensing by the Company of $5,000,000, other than: (A) any mortgage or similar Indebtedness secured by specific property Intellectual Property owned by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closing;
(vii) any Contract (including any so-called take-or-pay or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtednessthird party, liabilities or obligations of any Transferred Entity in respect of the BGI Business each case, that would reasonably be expected to be is material to the Transferred Entitiesbusiness of the Company or any of its Subsidiaries, taken as a whole, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person (other than any Transferred Entity) and in each case in excess of $10,000,000;
(viii) any Contract that provides for earn-outs or other similar contingent obligations that would reasonably be expected to result in annual payments in 2009 of $5,000,000 or more;
(ix) any Contract entered into since January 1, 2007 for the acquisition or disposition of a Person or a division of a Person, or for the acquisition or sale of any assets (including Intellectual Property), properties, equity interests or rightscase, other than any such sale licenses that are granted pursuant to commercial relationships between the Company and its customers, vendors or acquisition suppliers in the ordinary course of business or any such sale licenses for software that is generally commercially available;
(vii) any Contract containing any standstill or acquisition similar restriction pursuant to which the Company or its Subsidiaries has agreed not to acquire securities of another Person or to refrain from engaging in or proposing to engage in business combination transactions with another Person;
(viii) any employment Contract that would requires aggregate payments with respect to annual salary and target bonus in excess of $200,000 on an annual basis or is not reasonably be expected terminable without cause by the Company or any of its Subsidiaries by notice of not more than sixty (60) days or without any termination payment or penalty, or any severance, retention, change in control or similar Contract;
(ix) any collective bargaining agreement or other Contract with any labor organization, union or association or works council;
(x) any Contract that grants any rights of first refusal, rights of first negotiation or other similar pre-emptive rights to be any person (other than an Acquired Company) with respect to any asset that is material to the Transferred EntitiesCompany and its Subsidiaries, taken as a whole, excluding any Contract with a customer of the Company or any Subsidiary of the Company which, by its terms, permits the customer under such Contract, in connection with the termination of such Contract, to purchase assets of the Company or its Subsidiaries under such Contract that are exclusively used by the Company and its Subsidiaries to manufacture products for such customer;
(xi) any Contract entered into in connection with the acquisition or disposition by the Acquired Companies of any business or business unit (by merger, sale of stock, sale of assets or otherwise) (other than acquisitions and dispositions of assets in the ordinary course of business) (A) that contains “earnout” or other contingent payment obligations (other than any such obligations (1) that are indemnification obligations or (2) that provide for potential payments of less than $2,000,000) or (B) under which any Acquired Company has any continuing indemnification obligations that would reasonably be expected to give rise to a liability that is material to the Acquired Companies, taken as a whole;
(xii) any (A) Government Contract; (B) settlement or similar Contract entered into since January 1, 2013 that is, in the case of either of clause (A) or clause (B), material to the Acquired Companies, taken as a whole or (C) material Contract entered into with Motors Liquidation Company (f/k/a General Motors Corp.) or any of its Affiliates (or any seller or buyer of any of the businesses of the foregoing pursuant to the reorganization of Motors Liquidation Company f/k/a General Motors Corp.) in connection with the reorganization of Motors Liquidation Company (f/k/a General Motors Corp.);
(xiii) any material Contract entered into in connection with the consummation of the Spin-Off and the related transactions conducted on December 31, 2014;
(xiv) any Contract purporting to indemnify or hold harmless any director or officer of the Company (other than the Company Constituent Documents or organizational documents of the Company’s Subsidiaries); and
(xxv) any BGI Affiliate Arrangement Contract that will is between the Company or one of its Subsidiaries on the one hand and any Person beneficially owning five percent (5%) or more of the outstanding Shares on the other hand. Each such Contract required to be listed in effect after Section 3.15(a) or Section 3.17(b) of the ClosingCompany Disclosure Letter (or that would have been required to be listed in Section 3.15(a) but for the fact that it is furnished or filed with a Publicly Available Company SEC Document), a “Material Contract”.
(b) Seller has True and complete copies of all Material Contracts of the Company and its Subsidiaries have been made available to Buyer prior to the date of this Agreement a complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date Parent. For purposes of this Agreement, “Contract” means any note, bond, mortgage, indenture, contract, arrangement, undertaking, agreement, lease or other instrument or obligation, together with all amendments thereto, but excludes any Company Plan and any purchase order entered into the ordinary course of business. Each (i) Specified ContractMaterial Contract is a legally valid and binding obligation of each of the Acquired Companies that are party thereto and, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis knowledge of the Company, any other party thereto, and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effect, and is except in each case for such failures to be a legally valid and binding on the Transferred Entity that is a party thereto, and, obligation or to the Knowledge of Seller, on each other party thereto. There exists no breach or default of any Significant Contract on the part of any Transferred Entity which (with or without notice or lapse of time or both) wouldbe in full force and effect that, individually or in the aggregate, would not reasonably be expected to be material to the Transferred Entities, taken as have a wholeMaterial Adverse Effect. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which wouldExcept as, individually or in the aggregate, would not reasonably be expected to be material have a Material Adverse Effect (i) there is no default under any Material Contract by the Company or any of its Subsidiaries party thereto or, to the Transferred Entitiesknowledge of the Company, taken as any other party thereto and (ii) no event has occurred that with the lapse of time or the giving of notice or both would constitute a wholedefault thereunder by the Company or any of its Subsidiaries party thereto or, to the knowledge of the Company, any other party thereto.
(c) As of the date hereofof this Agreement, no Transferred Entity has entered into and is bound by except as, individually or subject to any of the following:
(i) other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practiceaggregate, any Contract providing for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that has not had and would not reasonably be expected to result in aggregate indemnification payments have a Material Adverse Effect: (x) to the Company’s knowledge, neither the Company nor any of its Subsidiaries nor any of their respective personnel is subject to an ongoing administrative, civil, or criminal investigation, indictment or audit by any Governmental Entity with respect to any alleged irregularity, misstatement or omission arising under or relating to any Government Contract; (y) to the Company’s knowledge, neither the Company nor any of its Subsidiaries has since January 1, 2013 conducted or initiated any internal investigation or made a Transferred voluntary disclosure to any Governmental Entity in excess with respect to any alleged irregularity, misstatement or omission arising under a Government Contract; and (z) neither the Company nor any of $10,000,000;
(ii) other than Contracts entered into in its Subsidiaries nor, to the ordinary course of businessCompany’s knowledge, any type of Contract to cap fees, share fees their respective personnel has been suspended or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a whole; or
(iii) other than Contracts entered into in the ordinary course of debarred from doing business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other PersonGovernmental Entity or is, (B) to provide seed capital or similar investment or (C) to invest in at any investment producttime has been, in each case in an amount in excess of $5,000,000 individually.
(d) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees subject of a Transferred finding of non-responsibility or ineligibility (due to misconduct) by any Governmental Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009contracting with the Acquired Companies.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard forms.
Appears in 2 contracts
Sources: Merger Agreement (Borgwarner Inc), Merger Agreement (Remy International, Inc.)
Contracts. (a) Except for the transactions contemplated by Section 4.13(a) 6.1(n), neither Intellicell nor any of the Seller’s Disclosure Schedules contains a complete and correct list of all of the following Contracts, in effect as of the date of this Agreement, to which a Transferred Entity its Subsidiaries is a party, is bound by or subject to, or pursuant party to which the BGI Business is conducted (the “Specified Contracts”):
(i) any Contract lease, installment purchase agreement or other contract with respect to any real property used or proposed to be used in its operations, except, in each case, items reflected in Intellicell's March 31, 1999 financial statements; (ii) any contract or agreement for the placementpurchase of any personal property, distribution commodity, material, fixed asset or sale of shares, units or other ownership interests of a Fund that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity equipment in excess of $5,000,000 in 2009;
100,000 (iiiii) any administration mortgage, lease, contract or agreement creating an obligation of $100,000 or more; (iv) any other Contract for the provision of administrative services that is reasonably expected to provide for contract or agreement involving payments to, or provide for payments from a Transferred Entity in 2009 in excess of $10,000,000 and 100,000 which by its terms does not terminate or is not terminable without penalty by a Transferred Entity upon notice of 180 days or less;
(iii) any Contract, other than a Benefit and Compensation Arrangement, that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $10,000,000 in 2009;
(iv) any Contract prohibiting or materially restricting it within one year after the ability of any Transferred Entity to conduct its business, to engage in any business or operate in any geographical area or to compete with any Person;
date hereof; (v) any Contract for any joint ventureloan agreement, strategic allianceindenture, partnership promissory note, conditional sales agreement or other similar arrangement involving a sharing type of profits or expenses or payments based on revenues, profits, or assets under management of any Affiliate of Parent or any Fund that is reasonably expected to account for revenue to the BGI Business in 2009 in excess of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be material to the Transferred Entities, taken as a whole;
arrangement; (vi) any Contract relating to any Indebtedness of a Transferred Entity in an amount in excess of $5,000,000, other than: (A) any mortgage or similar Indebtedness secured by specific property owned by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entitiesmaterial license agreement; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closing;
(vii) any Contract (including any so-called take-or-pay or keep well agreements) under contract which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any Transferred Entity in respect of the BGI Business that would reasonably could be expected to be material to the Transferred Entities, taken as a whole, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person (other than any Transferred Entity) in each case in excess of $10,000,000;
(viii) any Contract that provides for earn-outs or other similar contingent obligations that would reasonably be expected to result in annual payments in 2009 a material loss or obligation to Intellicell and its Subsidiaries. To the knowledge of $5,000,000 or more;
(ix) any Contract entered into since January 1Intellicell, 2007 for each of the acquisition or disposition of a Person or a division of a Personforegoing mortgages, or for the acquisition or sale of any assets (including Intellectual Property)leases, propertiescontracts, equity interests or rights, agreements and other than any such sale or acquisition in the ordinary course of business arrangements to which Intellicell or any of its Subsidiaries is a party are valid and enforceable in accordance with their terms, except as such sale or acquisition that would not reasonably enforceability may be expected to be material to the Transferred Entities, taken as a whole; and
(x) any BGI Affiliate Arrangement that will be in effect after the Closing.
(b) Seller has made available to Buyer prior to the date of this Agreement a complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each limited by (i) Specified Contract, bankruptcy laws and other similar laws affecting creditors' rights generally and (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 general principles of revenue to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments to equity, whether asserted in a Transferred Entity proceeding in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i)equity or at law. Intellicell, (ii) and (iii) being the “Significant Contracts”) is in full force and effect, and is valid and binding on the Transferred Entity that is a party thereto, its Subsidiaries and, to Intellicell's knowledge, all other parties to each of the Knowledge foregoing mortgages, leases, contracts, agreements and other arrangements have performed all material obligations required to be performed to date thereunder; neither Intellicell, nor any of Sellerits Subsidiaries nor, on each to Intellicell's knowledge, any such other party thereto. There exists no breach is in default or default in arrears under the terms of any Significant Contract on of the part foregoing; and, to Intellicell's knowledge, no condition exists or event has occurred which, with the giving of any Transferred Entity which (with or without notice or lapse of time or both) would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as would constitute a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.
(c) As of the date hereof, no Transferred Entity has entered into and is bound by or subject to default under any of the following:
(i) other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practice, any Contract providing for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000;
(ii) other than Contracts entered into in the ordinary course of business, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a whole; or
(iii) other than Contracts entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individuallythem.
(d) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard forms.
Appears in 2 contracts
Sources: Merger Agreement (Intellicell Corp), Agreement and Plan of Merger (Intellicell Corp)
Contracts. (a) Section 4.13(a3.14(a) of the Seller’s Company Disclosure Schedules contains Schedule sets forth a complete and correct accurate list of all contracts and agreements to which the Company or any of the following Contracts, in effect its Subsidiaries is a party as of the date of this Agreement, to Agreement (i) in connection with which a Transferred Entity is a party, is bound by or subject to, or pursuant to which the BGI Business is conducted (Company and its Subsidiaries paid, in the “Specified Contracts”):
(i) any Contract for aggregate during the placementfiscal year ended October 2, distribution or sale of shares2012, units or other ownership interests of a Fund that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of more than $5,000,000 in 2009;
to any vendor for merchandise resold by the Company and its Subsidiaries, (ii) any administration agreement or any other Contract for the provision of administrative services that is reasonably expected a services agreement, equipment lease, logistics agreement, information technology agreement, agreement related to provide for payments tosoftware or intellectual property license (other than any architectural or construction-related contract) in connection with which or pursuant to which the Company and its Subsidiaries paid, or provide for payments from a Transferred Entity in 2009 in excess of the aggregate during the fiscal year ended October 2, 2012, more than $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or less;
2,000,000 to any person, (iii) any Contractpharmacy-related agreements, other including, without limitation, procurement agreements, rebate agreements and network pharmacy service agreements, in connection with which or pursuant to which the Company and its Subsidiaries paid, in the aggregate during the fiscal year ended October 2, 2012, more than a Benefit and Compensation Arrangement$1,000,000 to any person, that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $10,000,000 in 2009;
(iv) any Contract prohibiting or materially restricting related to indebtedness for borrowed money owed by the ability of any Transferred Entity to conduct its business, to engage in any business or operate in any geographical area or to compete with any Person;
(v) any Contract for any joint venture, strategic alliance, partnership or similar arrangement involving a sharing of profits or expenses or payments based on revenues, profits, or assets under management of any Affiliate of Parent Company or any Fund that is reasonably expected to account for revenue to the BGI Business in 2009 in excess of $10,000,000 on its Subsidiaries having an annual (or annualized) basis or that would reasonably be expected to be material to the Transferred Entities, taken as a whole;
(vi) any Contract relating to any Indebtedness of a Transferred Entity in an outstanding amount in excess of $5,000,0002,500,000 individually, other than: than any such indebtedness between or among any of the Company and any of its Subsidiaries, (Av) that prohibits or otherwise restricts, in any mortgage material respect, the Company or similar Indebtedness secured any of its Subsidiaries from freely engaging in business anywhere in the world, (vi) that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K promulgated by specific property owned by or on behalf of a Client; the SEC (B“Regulation S-K”)) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following with respect to the Closing;
Company and its Subsidiaries, (vii) that is an employment or consulting agreement with any Contract (including any so-called take-or-pay executive officer or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any Transferred Entity in respect other employee of the BGI Business Company or any of its Subsidiaries or member of the Company Board earning an annual salary from the Company or any of its Subsidiaries in excess of $100,000, (viii) that is a joint venture, partnership, limited liability company or other similar agreement or arrangement in which the Company or any of its Subsidiaries is still a member, partner or shareholder in connection with which the Company or any of its Subsidiaries has a recorded balance (on a GAAP basis) of more than $1,000,000 or (ix) that involves the acquisition from another person or disposition to another person (other than acquisitions or dispositions of inventory, merchandise, products, services, properties and other assets in the ordinary course of business), of assets or capital stock or other equity interests for aggregate consideration under such contract (or series of related contracts) in excess of $1,000,000, in the case of clauses (i) through (ix), other than those that are terminable by the Company or any of its Subsidiaries on no more than 30 days’ notice without material liability or financial obligation to the Company or any of its Subsidiaries (collectively, the “Company Material Contracts”). The Company has made available to Parent and Merger Sub a complete and accurate copy of each Company Material Contract.
(b) Each Company Material Contract is a valid and binding agreement of the Company or one of its Subsidiaries, as the case may be, and, to the knowledge of the Company, 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 be material have a Company Material Adverse Effect. Neither the Company nor any of its Subsidiaries nor, to the Transferred EntitiesCompany’s knowledge, taken as any other party to any Company Material Contract 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 whole, violation of or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person (other than any Transferred Entity) in each case in excess of $10,000,000;
(viiidefault under) any Contract that provides for earn-outs Company Material Contract, which violation or other similar contingent obligations that default would reasonably be expected to result in annual payments in 2009 of $5,000,000 or more;a Company Material Adverse Effect.
(ixc) Except for any Contract entered into since January 1conflicts, 2007 violations, breaches, defaults, terminations, cancellations, accelerations, losses, penalties or Liens, and for the acquisition any consents or disposition of a Person or a division of a Personwaivers not obtained, or for the acquisition or sale of any assets (including Intellectual Property), properties, equity interests or rights, other than any such sale or acquisition in the ordinary course of business or any such sale or acquisition that would not reasonably be expected to be material to have a Company Material Adverse Effect or as set forth in Section 3.4(b) of the Transferred EntitiesCompany Disclosure Schedule, taken as a whole; and
(x) any BGI Affiliate Arrangement that will be in effect after the Closing.
(b) Seller has made available to Buyer prior to the date execution and delivery of this Agreement a complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on by the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effectCompany do not, and is valid and binding on the Transferred Entity that is a party theretoconsummation by the Company of the transactions contemplated by this Agreement shall not conflict with, andor result in any violation or breach of, to the Knowledge of Seller, on each other party thereto. There exists no breach or default of any Significant Contract on the part of any Transferred Entity which constitute (with or without notice or lapse of time time, or both) woulda default (or give rise to a right of termination, individually cancellation or acceleration of any obligation or loss of any material benefit) under, require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability imposition of any Significant ContractLien (other than a Permitted Lien) on the Company’s or any of its Subsidiary’s assets under, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.
(c) As of the date hereof, no Transferred Entity has entered into and is bound by or subject to any of the following:
(i) other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practiceterms, any Contract providing for the indemnification conditions or provisions of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000;
(ii) other than Contracts entered into in the ordinary course of business, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a whole; or
(iii) other than Contracts entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individuallyCompany Material Contract.
(d) Notwithstanding anything to Neither the contrary contained in this Agreement, in no event shall Specified Contracts include Company nor any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form Subsidiaries has entered into any transaction after November 30, 2011 that would be subject to disclosure pursuant to Item 404 of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, Regulation S-K that has not been disclosed in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard formsCompany SEC Reports.
Appears in 2 contracts
Sources: Merger Agreement (Harris Teeter Supermarkets, Inc.), Merger Agreement (Kroger Co)
Contracts. (a) Section 4.13(a) 3.16 of the Seller’s Company Disclosure Schedules contains a complete and correct list of all Letter lists each of the following Contractstypes of bonds, in effect debentures, notes, mortgages, indentures, guarantees, licenses, leases, purchase or sale orders or other contracts, commitments, agreements, instruments, arrangements, understandings, undertakings, permits, or franchises, whether oral or written (each, including all amendments thereto, a “Contract”), to which the Company or any of its Subsidiaries is a party or by which any of their respective properties or assets is legally bound as of the date of this Agreement, to which a Transferred Entity is a party, is bound by or subject to, or pursuant to which the BGI Business is conducted (the “Specified Contracts”)::
(i) any Contract for that would be required to be filed by the placement, distribution Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or sale of shares, units or other ownership interests of disclosed by the Company on a Fund that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $5,000,000 in 2009Current Report on Form 8-K;
(ii) any administration agreement Contract that limits the ability of the Company or any other Contract for of its Subsidiaries (or, following the provision consummation of administrative services that is reasonably expected the transactions contemplated by this Agreement, would limit the ability of Parent or any of its Subsidiaries, including the Surviving Corporation) to provide for payments tocompete in any line of business or with any Person or in any geographic area, or provide that restricts the right of the Company and its Subsidiaries (or, following the consummation of the transactions contemplated by this Agreement, would limit the ability of Parent or any of its Subsidiaries, including the Surviving Corporation) to sell to or purchase from any Person, or that grants the other party or any third Person “most favored nation” status or any type of special discount rights for payments from a Transferred Entity in 2009 in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or lessfuture purchases;
(iii) any ContractContract the primary subject matter of which is the formation, creation, operation, management or control of a joint venture, partnership or limited liability company or other than a Benefit and Compensation Arrangement, that is reasonably expected to provide for payments to, similar agreement or provide for payments from, a Transferred Entity in excess of $10,000,000 in 2009arrangement;
(iv) any Contract prohibiting relating to Indebtedness of the Company or materially restricting the ability any of any Transferred Entity to conduct its business, to engage Subsidiaries and having an outstanding principal amount in any business or operate in any geographical area or to compete with any Personexcess of $100,000;
(v) any Contract involving the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests for any joint venture, strategic alliance, partnership aggregate consideration (in one or similar arrangement involving a sharing series of profits or expenses or payments based on revenues, profits, or assets transactions) under management of any Affiliate of Parent or any Fund that is reasonably expected to account for revenue to the BGI Business in 2009 in excess such Contract of $10,000,000 on an annual 350,000 or more (other than acquisitions or annualized) basis or that would reasonably be expected to be material to dispositions of inventory in the Transferred Entities, taken as a wholeordinary course of business consistent with past practice);
(vi) any Contract relating that by its terms calls for aggregate payment or receipt by the Company and its Subsidiaries under such Contract of more than $250,000 over the remaining term of such Contract that is not terminable (in the case of any such Contract that calls for such aggregate payment) or terminable (in the case of any such Contract that calls for such aggregate receipt), as the case may be, without penalty to any Indebtedness of a Transferred Entity in an amount in excess of $5,000,000, the Company and its Subsidiaries on 120 days’ or less notice (other than: than (A) any mortgage or similar Indebtedness secured by specific property owned by or on behalf of a Client; purchase orders for Company inventory, (B) service Contracts with customers of the Company or any Indebtedness solely between Transferred Entities; or of its Subsidiaries with respect to which the customer sites holding the products that are the subject of such Contracts are listed on Section 3.16(a)(vi)(B) of the Company Disclosure Letter, (C) any Indebtedness non-executory Contracts for the sale of Company products with respect to which no Transferred Entity will be liable following the Closingcustomer sites holding the products that are the subject of such Contracts are listed on Section 3.16(a)(vi)(C) of the Company Disclosure Letter; and (D) Company Plans, other than employment agreements, severance agreements, change of control Contracts or similar agreements);
(vii) any Contract (including pursuant to which the Company or any so-called take-or-pay or keep well agreements) under which (A) any Person of its Subsidiaries has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any Transferred Entity in respect of the BGI Business that would reasonably be expected to be material to the Transferred Entities, taken as a whole, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person continuing indemnification (other than any Transferred Entity) Contracts for the sale of Company products and warranties covering Company products given in the ordinary course of business), guarantee, “earn-out” or other contingent payment obligations, in each case that the Company reasonably anticipates will involve payments by the Company or any of its Subsidiaries in excess of $10,000,000100,000;
(viii) any Contract that provides is a license agreement that is material to the business of the Company and its Subsidiaries, taken as a whole, pursuant to which the Company or any of its Subsidiaries is a party and licenses in Intellectual Property or licenses out Intellectual Property owned by the Company or its Subsidiaries, other than (A) license agreements for earn-outs or other similar contingent obligations software that would reasonably be expected to result is generally commercially available and that is licensed in annual payments object code form solely for internal use and (B) as contained in 2009 sales Contracts in the ordinary course of $5,000,000 or morebusiness;
(ix) any Contract entered into executed by the Company or any of its Subsidiaries since January 1May 8, 2007 that provides for the acquisition any confidentiality, standstill or disposition of a Person or a division of a Person, or for the acquisition or sale of any assets (including Intellectual Property), properties, equity interests or rights, other than any such sale or acquisition in the ordinary course of business or any such sale or acquisition that would not reasonably be expected to be material to the Transferred Entities, taken as a whole; and
(x) any BGI Affiliate Arrangement that will be in effect after the Closing.
(b) Seller has made available to Buyer prior to the date of this Agreement a complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effect, and is valid and binding on the Transferred Entity that is a party thereto, and, to the Knowledge of Seller, on each other party thereto. There exists no breach or default of any Significant Contract similar obligations on the part of any Transferred Entity which (with the Company or without notice or lapse of time or both) wouldits Subsidiaries, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.
(c) As of the date hereof, no Transferred Entity has entered into and is bound by or subject to any of the following:
(i) other than investment management and distribution except for such Contracts entered into in the ordinary course of business consistent with past practice, ;
(x) any Contract providing for that obligates the indemnification Company or any of its Subsidiaries to make any Person with respect equity commitment or loan to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result a third party in aggregate indemnification payments by a Transferred Entity an amount in excess of $10,000,000100,000;
(iixi) other than Contracts entered into in the ordinary course of business, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a whole; or
(iii) other than Contracts not entered into in the ordinary course of business consistent with past practicebetween the Company or any of its Subsidiaries, on the one hand, and any Affiliate thereof other than any Subsidiary of the Company involving the payment of more than $100,000;
(xii) any Contract relating to ▇▇▇▇, any investment therein by the Company and its Subsidiaries or any rights relating thereto;
(xiii) any executory Contract requiring with any Transferred Governmental Entity (A) to co-invest with other than any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess Contract for the purchase of $5,000,000 individually.the Company’s products by a Governmental Entity); or
(dxiv) Notwithstanding anything any Contract that requires the consent of, or the giving of notice to, any third party in connection with a “change of control” of the Company or that would or would reasonably be expected to prevent, delay or impair the contrary contained in consummation of the transactions contemplated by this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) . Each contract of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision type described in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of clauses (i) $1,000,000 through (xiv) is referred to herein as a “Company Material Contract.”
(b) Except, individually or in 2008 for Investment Advisory Arrangement the aggregate, as would not reasonably be expected to have a Company Material Adverse Effect, (i) each Company Material Contract is valid and binding on the Company and any of its Subsidiaries to the extent such Subsidiary is a party thereto, as applicable, and to the knowledge of the Company, each other party thereto, and is in full force and effect and enforceable in accordance with U.S.-based clients its terms (except to the extent that enforceability may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or similar Laws affecting the enforcement of creditors’ rights generally and subject to general principles of equity); and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) there is no violation or default under any Company Material Contract by the Company or any of its Subsidiaries or, to the knowledge of the Seller’s Disclosure Schedules is Company, any other party thereto, and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a description 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 written notice of any “key person” provision pertaining to employees of a Transferred Entity such default, event or condition, except where any such default, event or condition, individually or in any Contract that is the aggregate, has not had and would not reasonably be expected to provide for payments to have a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller Company Material Adverse Effect. The Company has made available to Buyer a Parent true and complete copy copies of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support all Company Material Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard formsincluding any amendments thereto.
Appears in 2 contracts
Sources: Merger Agreement (TomoTherapy Inc), Merger Agreement (Accuray Inc)
Contracts. (a) Section 4.13(aSchedule 4(m) of the Seller’s Disclosure Schedules contains a complete and correct list of all Schedule lists the following written Contracts of the following Contracts, in effect MHE Business as of the date of this Agreement, to which a Transferred Entity is a party, is bound by or subject to, or pursuant to which the BGI Business is conducted (the “Specified Contracts”):hereof:
(i) any Contract for the placement, distribution or sale performance of shares, units or other ownership interests of a Fund that which is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity involve consideration in excess of $5,000,000 in 20092,000,000;
(ii) any administration agreement Contract which restricts or contains limitations on the ability of any of the MHE Business or the Companies or their Subsidiaries to freely conduct business anywhere in the world or relates to confidentiality (other Contract for than confidentiality agreements that relate to (x) the provision purchase or sale of administrative goods or services that is reasonably expected to provide for payments toin the Ordinary Course of Business, or provide for payments from a Transferred Entity in 2009 in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days (y) acquisitions or lessjoint venture transactions);
(iii) any Contract, other than a Benefit and Compensation Arrangement, that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $10,000,000 in 2009collective bargaining agreement;
(iv) any Contract prohibiting or materially restricting contract which provides for the ability employment of any Transferred Entity to conduct its businessindividual on a full-time, to engage part-time, consulting or other basis providing annual salary and cash bonus in any business excess of $100,000 or operate which provides for severance or change in any geographical area or to compete with any Personcontrol benefits;
(v) any Contract for any joint venture, strategic alliance, partnership or similar arrangement involving a sharing of profits or expenses or payments based on revenues, profits, or assets under management of any Affiliate of Parent agreement which relates to Indebtedness or any Fund that is reasonably expected to account for revenue to the BGI Business in 2009 in excess of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be material to the Transferred Entities, taken as a wholeGuaranty;
(vi) any Contract relating to any Indebtedness of concerning a Transferred Entity in an amount in excess of $5,000,000partnership, joint venture or other than: (A) any mortgage similar entity or similar Indebtedness secured by specific property owned by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closingarrangement;
(vii) any Contract (including between the Companies or their Subsidiaries on the one hand, and any so-called take-or-pay or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any Transferred Entity in respect of the BGI Business that would reasonably be expected to be material to the Transferred Entities, taken as a whole, Sellers or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person their Affiliates (other than any Transferred Entitythe Companies and their Subsidiaries) in each case in excess of $10,000,000on the other hand;
(viii) any Contract that provides for earn-outs profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance or other similar contingent obligations that would reasonably be expected to result in annual payments in 2009 plan or arrangement for the benefit of $5,000,000 its current or moreformer directors, officers and employees;
(ix) any Contract entered into since January 1under which the Companies or any of their Subsidiaries has advanced or loaned any amount to any of their directors, 2007 for officers and employees outside the acquisition or disposition Ordinary Course of a Person or a division Business; and
(x) with respect to any of a Personthe foregoing, or any outstanding executed letters of intent and written offers to which the Companies and/or their Subsidiaries is party (including, but not limited to, offers made, but not yet accepted, for the acquisition or sale of any assets (including Intellectual Property)facility, propertiesreal property or business, equity interests but excluding offers made, but not yet accepted, for the sale of goods or rights, other than any such sale or acquisition services in the ordinary course Ordinary Course of business or any such sale or acquisition that would not reasonably be expected to be material to the Transferred Entities, taken as a whole; and
(x) any BGI Affiliate Arrangement that will be in effect after the Closing.
(b) Seller has Business). HarnCo and Sellers have made available to Buyer prior Investor (or will make available to Investor promptly following the date of this Agreement hereof) a correct and complete and correct copy of each written Specified contract or other agreement listed in Schedule 4(m) of the Disclosure Schedule. With respect to each such Contract: (A) the Contract (except is legal, valid, binding, enforceable in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) accordance with its terms against the Companies, their Subsidiaries and accurate and complete descriptions of all material terms of each oral Specified Contracttheir Affiliates party thereto and, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and Knowledge of the Specified Employees, the other parties thereto; (iiiB) Contract that is reasonably expected neither the Companies, their Subsidiaries nor their Affiliates and, to provide for payments to a Transferred Entity in excess the Knowledge of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i)the Specified Employees, (ii) and (iii) being the “Significant Contracts”) no other party thereto is in full force and effect, and is valid and binding on the Transferred Entity that is a party theretomaterial breach or default, and, to the Knowledge of Sellerthe Specified Employees, on each other party thereto. There exists no event has occurred which with notice or upon the expiration of applicable grace or cure periods or both would constitute a material breach or default of any Significant Contract on default, or permit termination, modification or acceleration under, the part of any Transferred Entity which Contract; (with or without notice or lapse of time or bothC) wouldneither the Companies, individually or in the aggregatetheir Subsidiaries nor their Affiliates and, reasonably be expected to be material to the Transferred EntitiesKnowledge of the Specified Employees, taken as a whole. No Transferred Entity no other party, has received repudiated any written notice material provision of an intention to terminatethe Contract; and (D) none of HarnCo, not to renew or to challenge the validity or enforceability of any Significant ContractSellers, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.
(c) As of the date hereof, no Transferred Entity has entered into and is bound by or subject to Companies nor any of the following:
(i) other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practice, Companies' Subsidiaries has granted any Contract providing for the indemnification release or waiver of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess material provision under the Contract outside the Ordinary Course of $10,000,000;
(ii) other than Contracts entered into in the ordinary course of business, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a whole; or
(iii) other than Contracts entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individuallyBusiness.
(d) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard forms.
Appears in 2 contracts
Sources: Recapitalization Agreement (MMH Holdings Inc), Recapitalization Agreement (Morris Material Handling Inc)
Contracts. (a) Except for this Agreement, Section 4.13(a3.13(a) of the Seller’s Company Disclosure Schedules contains Letter sets forth a true and complete and correct list of all of the following Contractslist, in effect as of the date of this Agreement, and the Company has made available to which a Transferred Entity is a partyParent true and complete copies, is bound by or subject to, or pursuant to which the BGI Business is conducted (the “Specified Contracts”):of:
(i) any each Contract for that would be required to be filed by the placement, distribution or sale Company as a “material contract” pursuant to Item 601(b)(10) of shares, units or other ownership interests of a Fund that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $5,000,000 in 2009Regulation S-K under the Securities Act;
(ii) any administration agreement each Contract to which the Company or any other Contract Company Subsidiary is a party that (A) materially restricts the ability of the Company or any Company Subsidiary to compete in any business or with any Person in any geographical area, (B) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party, (C) grants a third party development rights relating to any Company Product, (D) requires the Company or any Company Subsidiary to purchase a minimum quantity of goods or supplies relating to any Company Product in favor of any third party or (E) provides for the provision “exclusivity” or any similar requirement in favor of administrative services that is reasonably expected to provide for payments to, or provide for payments from a Transferred Entity in 2009 in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or lessany third party;
(iii) any Contract, other than each Contract with a Benefit and Compensation Arrangement, that is reasonably expected to provide for payments to, Significant Customer or provide for payments from, a Transferred Entity in excess of $10,000,000 in 2009Significant Supplier;
(iv) other than any Company Benefit Plan, any Contract prohibiting or materially restricting that can be terminated for convenience on notice by the ability Company, customer and channel partner agreements and software maintenance agreements entered into in the ordinary course of any Transferred Entity to conduct its business, each Contract to engage which the Company or any Company Subsidiary is a party that provides for recurring annual minimum payments or receipts in any business or operate in any geographical area or to compete with any Personexcess of $500,000;
(v) any each Contract for any joint venture, strategic alliance, partnership or similar arrangement involving a sharing of profits or expenses or payments based on revenues, profits, or assets under management of any Affiliate of Parent to which the Company or any Fund that Company Subsidiary is reasonably expected a party relating to account indebtedness for revenue to the BGI Business in 2009 in excess of $10,000,000 on an annual (borrowed money or annualized) basis or that would reasonably be expected to be material to the Transferred Entities, taken as a wholeany financial guaranty;
(vi) each Contract to which the Company or any Company Subsidiary is a party involving in excess of $500,000 that provides for the acquisition or disposition of any assets or any businesses (whether by merger, sale of stock, sale of assets or otherwise) that (A) has not yet been consummated or (B) has outstanding any purchase price adjustment, “earn-out”, material indemnification, payment or similar obligations on the part of the Company or any Company Subsidiary;
(vii) each Contract relating to which the Company or any Indebtedness Company Subsidiary is a party pursuant to which the Company or any Company Subsidiary has continuing guarantee, “earn-out” or similar contingent payment obligations (other than indemnification obligations provided for in the ordinary course of business), including (A) milestone or similar payments, including upon the achievement of regulatory or commercial milestones or (B) payment of royalties or other amounts calculated based upon any revenues or income of the Company, in each case that would result in payments in excess of $250,000;
(viii) each Contract to which the Company or any Company Subsidiary is a Transferred Entity party that obligates the Company or any Company Subsidiary to make any capital commitment, loan or capital expenditure in an amount in excess of $5,000,000, other than: (A) any mortgage or similar Indebtedness secured by specific property owned by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closing;
(vii) any Contract (including any so-called take-or-pay or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any Transferred Entity in respect of the BGI Business that would reasonably be expected to be material to the Transferred Entities, taken as a whole, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person (other than any Transferred Entity) in each case in excess of $10,000,000;
(viii) any Contract that provides for earn-outs or other similar contingent obligations that would reasonably be expected to result in annual payments in 2009 of $5,000,000 or more500,000;
(ix) each Contract to which the Company or any Contract entered into since January 1, 2007 for the acquisition or disposition of Company Subsidiary is a Person or a division of a Person, or for the acquisition or sale of any assets (including Intellectual Property), properties, equity interests or rightsparty, other than with respect to any partnership that is wholly owned by the Company or such sale Company Subsidiary, that relates to the formation, creation, operation, management or acquisition in the ordinary course control of business any legal partnership or any joint venture entity pursuant to which the Company or such sale Company Subsidiary has an obligation (contingent or acquisition that would not reasonably be expected otherwise) to be make a material investment in or material extension of credit to the Transferred Entities, taken as a whole; andany Person;
(x) any BGI Affiliate Arrangement that will be in effect after the Closing.
(b) Seller has made available to Buyer prior each Contract with a Governmental Entity involving payments to the date of this Agreement a complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity Company in excess of $1,000,000 750,000 during the 2021 fiscal year;
(xi) each sales agency, distribution, international or domestic sales representative, reseller or similar Contract involving payments to the Company or any Company Subsidiary in 2009 excess of $500,000 during the 2021 fiscal year;
(xii) each Contract that contains key person provisions pertaining creates or would create a Lien (other than a Permitted Lien) on any material asset or property of the Company or any Company Subsidiary;
(xiii) each hedging, derivative or similar Contract (including interest rate, currency or commodity swap agreements, cap agreements, collar agreements and any similar Contract designed to employees of protect a Transferred Entity ((iPerson against fluctuations in interest rates, currency exchange rates or commodity prices), including the Capped Call Documentation;
(iixiv) and (iii) being the “Significant Contracts”) is in full force and effect, and is valid and binding on the Transferred Entity that is each Contract which provides for a party thereto, and, to the Knowledge of Seller, on each other party thereto. There exists no breach loan or default advance of any Significant Contract on the part of amount to any Transferred Entity which (with or without notice or lapse of time or both) would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.
(c) As employee of the date hereofCompany or any temporary agency employee, no Transferred Entity has entered into and is bound by consultant or subject to other independent contractor of the Company or any of the following:
(i) Company Subsidiaries, in each case, in excess of $100,000 individually, other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practice;
(xv) each stockholders’, investors rights’, registration rights or similar Contract to which the Company or any Company Subsidiary is a party (excluding the Company Stock Plans and any Contracts governing Company Stock Options, Company RSUs, Company PSUs or participation in the Company ESPP);
(xvi) each lease, sublease, license or similar use and occupancy Contract (including any amendments, extensions and modifications thereto, each, a “Lease”) for annual rents in excess of $100,000 pursuant to which the Company or any Company Subsidiary leases, subleases or otherwise uses or occupies any real property from any other Person (whether as a tenant, subtenant or pursuant to other occupancy arrangements) (collectively, the “Leased Real Property”);
(xvii) each Intellectual Property Agreement;
(xviii) each Contract with or binding upon the Company, any Company Subsidiary or any of their respective properties or assets that is of the type that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act; and
(xix) each Contract providing for the indemnification employment, engagement, retention or termination of any Person with respect to liabilitieson a full-time, whether absolutepart-time, accruedmaterial independent contractor, contingent temporary or other basis or otherwise that providing compensation or other benefits to any officer, director, employee or material independent contractor, other than Contracts terminable by the Company for any reason upon less than 90 days’ notice without incurring any liability (other than any Company Benefit Plan or as required by applicable Law). Each such Contract described in clauses (i) through (xix) above is referred to herein as a “Material Contract” and shall include in addition to any such Contract to which the Company or any Company Subsidiary is a party any of the foregoing Contracts to which any of the assets or properties of the Company or any Company Subsidiary are bound.
(b) Each of the Material Contracts is valid, binding and enforceable (except as such enforceability may be limited by the Bankruptcy, Equity and Indemnity Exception) on the Company or such Company Subsidiary, as the case may be, and, to the knowledge of the Company, each other party thereto, and is in full force and effect, except for such failures to be valid, binding or enforceable or to be in full force and effect as have not had, and would not reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000;
(ii) other than Contracts entered into have, individually or in the ordinary course of businessaggregate, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case a Company Material Adverse Effect. Except as would not be material to the Transferred EntitiesCompany and the Company Subsidiaries, taken as a whole; or
(iii) other than Contracts entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individually.
(d) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement there is no violation or breach of or default under any Material Contract by the Company or any Company Subsidiary or, to the knowledge of the Company, any other party thereto, and no event has occurred that with U.S.-based clients the lapse of time or the giving of notice or both would constitute a default thereunder by the Company or, to the knowledge of the Company, any other party thereto and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) neither the Company nor any Company Subsidiary has waived, failed to enforce or assigned any rights or benefits under any Material Contract. As of the Seller’s Disclosure Schedules is a description date of this Agreement, no party to any Material Contract has given any written notice of termination or cancellation of any “key person” provision pertaining Material Contract or that it intends to employees of a Transferred Entity in seek to terminate or cancel any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009Material Contract.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard forms.
Appears in 2 contracts
Sources: Merger Agreement (Stryker Corp), Merger Agreement (Vocera Communications, Inc.)
Contracts. (a) Section 4.13(a) The Company Schedule of the Seller’s Disclosure Schedules contains Exceptions sets forth a complete and correct list of all of the following Contracts, in effect (as of the date of this Agreement) of (i) each contract which is likely to involve payment or receipt of annual consideration of more than $100,000, in the aggregate, over the remaining term of such contract, (ii) all contracts or indentures relating to borrowed money or other indebtedness or the mortgaging, pledging or otherwise placing a Lien on any material asset or material group of assets of the Company or any of its subsidiaries, including the amount of funded indebtedness for borrowed money outstanding as of the date hereof under any such contract or indenture, other than contracts relating to indebtedness other than indebtedness for borrowed money in an amount not in excess of $100,000 in the aggregate for all such contracts, (iii) all joint venture or other similar agreements to which a Transferred Entity the Company or any of its subsidiaries is a party, is bound by or subject to, or pursuant (iv) all lease agreements to which the BGI Business Company or any of its subsidiaries is conducted (the “Specified Contracts”):
(i) any Contract for the placement, distribution or sale of shares, units or other ownership interests of a Fund that is reasonably expected to provide for party with annual lease payments to, or provide for payments from, a Transferred Entity in excess of $5,000,000 in 2009;
(ii) any administration agreement or any other Contract for the provision of administrative services that is reasonably expected to provide for payments to100,000, or provide for payments from a Transferred Entity in 2009 in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or less;
(iii) any Contract, other than a Benefit and Compensation Arrangement, that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $10,000,000 in 2009;
(iv) any Contract prohibiting or materially restricting the ability of any Transferred Entity to conduct its business, to engage in any business or operate in any geographical area or to compete with any Person;
(v) any Contract for any joint venture, strategic alliance, partnership or similar arrangement involving a sharing standby letter of profits or expenses or payments based on revenues, profits, or assets under management of any Affiliate of Parent credit obtained by the Company or any Fund that is reasonably expected to account for revenue to the BGI Business in 2009 in excess of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be material to the Transferred Entities, taken as a whole;
(vi) any Contract relating to any Indebtedness of a Transferred Entity its Subsidiaries has in an amount in excess of $5,000,000, other than: (A) any mortgage or similar Indebtedness secured by specific property owned by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closing;
(vii) any Contract (including any so-called take-or-pay or keep well agreements) 250,000 and contracts under which (A) the Company or any of its Subsidiaries has advanced or loaned any other Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any Transferred Entity in respect of the BGI Business that would reasonably be expected to be material to the Transferred Entities, taken as a whole, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person (other than any Transferred Entity) in each case entity an amount in excess of $10,000,000;
100,000, (vi) contracts or groups of related contracts with the same party or group of parties requiring the payment or receipt of $100,000 or more per year which are not cancelable by the Company on 30 days’ or less notice without premium or penalty or other cost of any kind or nature, (vii) warranty agreements with respect to the Company’s or its Subsidiaries’ services rendered or products sold or leased, other than pursuant to the Company’s standard warranty, (viii) agreements under which the Company has granted any Contract that provides for earnperson or entity registration rights (including, without limitation, demand and piggy-outs or other similar contingent obligations that would reasonably be expected to result in annual payments in 2009 of $5,000,000 or more;
back registration rights), (ix) agreements under which the Company or any Contract entered into since January 1, 2007 for the acquisition of its Subsidiaries has granted any right of first refusal or disposition of a Person or a division of a Person, or for the acquisition or sale similar right in favor of any third party with respect to any material portion of the Company’s or any of its Subsidiaries’ properties or assets and (including Intellectual Propertyx) contracts containing non-compete covenants by or to the Company or any of its Subsidiaries (the items described in clauses (i) through (x) hereof, collectively, the “Material Contracts”), properties, equity interests or rights, other than any such sale or acquisition . The Company has made available to Parent a correct and complete copy of each Material Contract listed in Section 4.14(a) of the Company Schedule of Exceptions.
(b) Except as disclosed in the ordinary course Company Schedule of business Exceptions, (i) neither the Company nor any of its Subsidiaries, nor, to the Company’s Knowledge, any other party, is in default in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any Material Contract or Company License Agreement to which it is a party, except for such sale or acquisition defaults that would not reasonably be expected to be material to the Transferred Entities, taken as have a whole; and
(x) any BGI Affiliate Arrangement that will be in effect after the Closing.
(b) Seller has made available to Buyer prior to the date of this Agreement a complete Company Material Adverse Effect and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis Company’s Knowledge, there has not occurred any event that, with the lapse of time or giving of notice or both, would constitute such a default. All Material Contracts to which the Company or any of its Subsidiaries is a party, or by which any of their respective assets are bound, are valid and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i)binding, (ii) and (iii) being the “Significant Contracts”) is in full force and effecteffect and enforceable against the Company or any such Subsidiary, as the case may be, and is valid and binding on the Transferred Entity that is a party thereto, and, to the Knowledge of SellerCompany’s Knowledge, on each the other party thereto. There exists no breach parties thereto in accordance with their respective terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or default of any Significant Contract on the part of any Transferred Entity which (with or without notice or lapse of time or both) would, individually or in the aggregate, reasonably be expected other similar Laws relating to be material creditors’ rights generally and to the Transferred Entities, taken as a whole. No Transferred Entity has received any written notice general principles of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a wholeequity.
(c) As Except as set forth in the Company Schedule of Exceptions, no Material Contract or Company License Agreement will, by its terms, terminate as a result of the date hereofTransactions or require any consent from any party thereto in order to remain in full force and effect immediately after the Effective Time, no Transferred Entity has entered into and is bound by or subject except where such termination would not reasonably be expected to any have a Company Material Adverse Effect.
(d) Except as set forth in Section 4.14(d) of the following:
(i) other than investment management and distribution Contracts entered into in Company Schedule of Exceptions, there are no contracts or agreements of the ordinary course Company having terms or conditions which would have a Company Material Adverse Effect or that materially impair the ability of the Company to conduct its business consistent with past practice, any Contract providing for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent as currently conducted or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000;
(ii) other than Contracts entered into in materially impair Parent’s ability to conduct the ordinary course of business, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to Company’s business after the Transferred Entities, taken as a whole; or
(iii) other than Contracts entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individuallyEffective Time.
(d) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard forms.
Appears in 2 contracts
Sources: Merger Agreement (Kintera Inc), Merger Agreement (Blackbaud Inc)
Contracts. (a) Except for this Agreement and the Other Transaction Agreements, neither Trident, nor any of its Assets, rights, properties or Subsidiaries, as of the date hereof, is a party to or bound by:
(i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) as such term would be applied to the Fountain Business as if a separate entity which was subject to the reporting requirements of Section 4.13(a13(a) or 15(d) of the Seller’s Disclosure Schedules Exchange Act;
(ii) any non-competition Contract or other Contract that is related to the Fountain Business and purports to limit in any material respect either the type of business in which Trident or any of its Subsidiaries and, for the avoidance of doubt, following the Fountain Distribution Date and Effective Time, Fountain or any of its Subsidiaries or any of their respective Affiliates may engage or the manner or geographic area in which any of them may so engage in any business or contains a complete and correct list any material exclusivity or non-solicitation provisions;
(iii) any Contract that limits or otherwise restricts the ability of all Fountain or any of its Subsidiaries to pay dividends or make distributions to its shareholders;
(iv) any material partnership, joint venture or similar Contract relating to the Fountain Business;
(v) any Contract, or series of related Contracts, under which Fountain or any Fountain Sub is or may be liable for indebtedness for borrowed money (which, for the avoidance of doubt, shall not be deemed to include any capital leases) in excess of $25 million, individually or in the aggregate, excluding Contracts relating to indebtedness for borrowed money owed to any member of the following Trident Group that will be terminated prior to the Effective Time; or
(vi) any Contract that relates to a material collective bargaining or similar labor Contract which covers any employees of Trident or its Affiliates engaged in work related to the Fountain Business, including any Fountain Employees.
(b) All Contracts of the type described in this Section 2.09 and any other such Contracts that may be entered into by Trident or any Subsidiary of Trident after the date hereof and prior to the Effective Time in accordance with Section 4.01 are referred to herein as “Fountain Material Contracts, in effect as .” As of the date of this Agreement, to which a Transferred Entity is a party, is bound by or subject to, or pursuant to which the BGI Business is conducted (the “Specified Contracts”):
(i) any Contract for the placement, distribution or sale of shares, units or other ownership interests of a Fund that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $5,000,000 in 2009;
(ii) any administration agreement or any other Contract for the provision of administrative services that is reasonably expected to provide for payments to, or provide for payments from a Transferred Entity in 2009 in excess of $10,000,000 complete and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or less;
(iii) any Contract, other than a Benefit and Compensation Arrangement, that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $10,000,000 in 2009;
(iv) any Contract prohibiting or materially restricting the ability of any Transferred Entity to conduct its business, to engage in any business or operate in any geographical area or to compete with any Person;
(v) any Contract for any joint venture, strategic alliance, partnership or similar arrangement involving a sharing of profits or expenses or payments based on revenues, profits, or assets under management of any Affiliate of Parent or any Fund that is reasonably expected to account for revenue to the BGI Business in 2009 in excess of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be material to the Transferred Entities, taken as a whole;
(vi) any Contract relating to any Indebtedness of a Transferred Entity in an amount in excess of $5,000,000, other than: (A) any mortgage or similar Indebtedness secured by specific property owned by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closing;
(vii) any Contract correct copies (including any so-called take-or-pay all material amendments, modifications, extensions or keep well agreementsrenewals with respect thereto) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any Transferred Entity in respect all Fountain Material Contracts existing as of the BGI Business that would reasonably be expected to be material to the Transferred Entities, taken as a whole, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person (other than any Transferred Entity) in each case in excess of $10,000,000;
(viii) any Contract that provides for earn-outs or other similar contingent obligations that would reasonably be expected to result in annual payments in 2009 of $5,000,000 or more;
(ix) any Contract entered into since January 1, 2007 for the acquisition or disposition of a Person or a division of a Person, or for the acquisition or sale of any assets (including Intellectual Property), properties, equity interests or rights, other than any such sale or acquisition in the ordinary course of business or any such sale or acquisition that would not reasonably be expected to be material to the Transferred Entities, taken as a whole; and
(x) any BGI Affiliate Arrangement that will be in effect after the Closing.
(b) Seller has made available to Buyer prior to the date of this Agreement a complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redactedprovided to Patriot.
(c) and accurate and complete descriptions of all material terms of each oral Specified ContractEach Fountain Material Contract is a legal, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effect, and is valid and binding on the Transferred Entity obligation of, and enforceable against, Trident or any Subsidiary of Trident that is a party thereto, and, to the Knowledge of SellerTrident, on each other party thereto. There exists no breach or default of any Significant Contract on the part of any Transferred Entity which (with or without notice or lapse of time or both) would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.
(c) As of the date hereof, no Transferred Entity has entered into and is bound by or subject to any of the following:
in full force and effect in accordance with its terms, except for (i) other than investment management and distribution Contracts entered into terminations or expirations at the end of the stated term in the ordinary course of business consistent with past practicepractice or (ii) such failures to be legal, any Contract providing for the indemnification of any Person with respect valid and binding or to liabilities, whether absolute, accrued, contingent or otherwise that be in full force and effect as would not reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000;
(ii) other than Contracts entered into have, individually or in the ordinary course of businessaggregate, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a whole; or
(iii) other than Contracts entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment productFountain Business MAE, in each case in an amount in excess subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting the enforcement of $5,000,000 individuallycreditors’ rights generally and rules of Law governing specific performance, injunctive relief and other equitable remedies.
(d) Notwithstanding anything Trident and each of its Subsidiaries which is a party to any Fountain Material Contract is, and, as of the Fountain Distribution Date and the Effective Time, Fountain and each Fountain Sub which is a party to any Fountain Material Contract will be, in compliance with all terms and requirements of each Fountain Material Contract, and no event has occurred that, with notice or the passage of time, or both, would constitute a breach or default by Trident or any of its Subsidiaries or Fountain or any of its Subsidiaries (as the case may be) under any such Fountain Material Contract and, to the contrary contained Knowledge of Trident, no other party to any Fountain Material Contract is in this Agreementbreach or default (nor has any event occurred which, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) with notice or the passage of the Seller’s Disclosure Schedules is time, or both, would constitute such a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower breach or default) indemnity Contract and its forms of cash fund capital support Contractsunder any Fountain Material Contract, except in each case provided where such violation, breach, default or event of default would not reasonably be expected to certain funds and clients of have, individually or in the securities lending or short-term cash businesses of the BGI Businessaggregate, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard formsa Fountain Business MAE.
Appears in 2 contracts
Sources: Merger Agreement (Tyco International LTD), Merger Agreement (Pentair Inc)
Contracts. (a) Section 4.13(a) 4.15 of the Seller’s Company Disclosure Schedules contains a complete and correct list of all Letter lists each Contract of the following Contracts, in effect as of the date of this Agreement, to which a Transferred Entity is a party, is bound by or subject to, or pursuant types to which the BGI Business Company or any of its Subsidiaries is conducted (the “Specified Contracts”):a party or by which any of their respective properties or assets is bound:
(i) any Contract for that would be required to be filed by the placement, distribution Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or sale of shares, units or other ownership interests of disclosed by the Company on a Fund that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $5,000,000 in 2009Current Report on Form 8-K;
(ii) any administration agreement Contract that materially limits the ability of the Company or any of its Subsidiaries (or, following the consummation of the Offer, the Merger and the other Contract for transactions contemplated by this Agreement, would limit the provision ability of administrative services that is reasonably expected Parent or any of its Subsidiaries, including the Surviving Corporation) to provide for payments tocompete in any line of business or with any Person or in any geographic area, or provide for payments that restricts the right of the Company and its Subsidiaries (or, following the consummation of the Offer, the Merger and the other transactions contemplated by this Agreement, would limit the ability of Parent or any of its Subsidiaries, including the Surviving Corporation) to sell to or purchase from a Transferred Entity in 2009 in excess any Person or to hire any Person, or that grants the other party or any third Person “most favored nation” status or any type of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or lessspecial discount rights;
(iii) any ContractContract with respect to the formation, other than creation, operation, management or control of a Benefit and Compensation Arrangement, that is reasonably expected to provide for payments to, joint venture or provide for payments from, a Transferred Entity in excess of $10,000,000 in 2009partnership with another Person;
(iv) any Contract prohibiting relating to Indebtedness incurred by the Company or materially restricting the ability any of any Transferred Entity to conduct its business, to engage in any business or operate in any geographical area or to compete with any PersonSubsidiaries;
(v) any Contract involving the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests for any joint venture, strategic alliance, partnership aggregate consideration (in one or similar arrangement involving a sharing series of profits or expenses or payments based on revenues, profits, or assets transactions) under management of any Affiliate of Parent or any Fund that is reasonably expected to account for revenue to the BGI Business in 2009 in excess such Contract of $10,000,000 on an annual 1,000,000 or more (other than acquisitions or annualized) basis or that would reasonably be expected to be material to dispositions of inventory in the Transferred Entities, taken as a wholeordinary course of business consistent with past practice);
(vi) any Contract relating to any Indebtedness that by its terms calls for aggregate payment or receipt by the Company and its Subsidiaries under such Contract of a Transferred Entity in an amount in excess more than $1,000,000 over the remaining term of $5,000,000, other than: (A) any mortgage or similar Indebtedness secured by specific property owned by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closingsuch Contract;
(vii) any Contract (including pursuant to which the Company or any soof its Subsidiaries has continuing guarantee, “earn-called take-or-pay out” or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtednessother contingent payment obligations, liabilities or obligations of any Transferred Entity in respect of the BGI Business that would reasonably be expected to be material to the Transferred Entities, taken as a whole, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person (other than any Transferred Entity) in each case that could result in payments in excess of $10,000,0001,000,000;
(viii) any Contract that provides is a license agreement, covenant not to ▇▇▇ agreement or co-existence agreement or similar agreement that is material to the business of the Company and its Subsidiaries, taken as a whole, to which the Company or any of its Subsidiaries is a party and licenses in Intellectual Property owned by a third party or licenses out Intellectual Property owned by the Company or its Subsidiaries or agrees not to assert or enforce Intellectual Property owned by the Company or such Subsidiary, other than license agreements for earn-outs or other similar contingent obligations software that would reasonably be expected to result in annual payments in 2009 of $5,000,000 or moreis generally commercially available;
(ix) any Contract entered into since January 1, 2007 for that obligates the acquisition Company or disposition any of a Person or a division of a Personits Subsidiaries to make (A) any loan, or for (B) any capital commitment or expenditure, except, in the acquisition or sale case of any assets clause (including Intellectual PropertyB), properties, equity interests or rights, other than any such sale or acquisition in the ordinary course of business or any such sale or acquisition that would consistent with practice and in an aggregate amount not reasonably be expected to be material to the Transferred Entities, taken as a whole; andgreater than $1,000,000;
(x) any BGI Affiliate Arrangement Contract that will requires a consent to or otherwise contains a provision relating to a “change of control” that would or would reasonably be expected to prevent, materially delay or impair the consummation of the transactions contemplated by this Agreement; or
(xi) any Contract with a top ten supplier of the Company based on aggregate amounts paid by the Company and its Subsidiaries during the 12-month period ended June 30, 2015 or a top ten customer of the Company based on revenue earned during the 12-month period ended June 30, 2015. Each contract of the type described in effect after the Closingclauses (i) through (xi) is referred to herein as a “Material Contract.”
(b) Seller has made available to Buyer prior to the date of this Agreement a complete and correct copy of each written Specified Each Material Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effect, and is valid and binding on the Transferred Entity that is a Company and each of its Subsidiaries party thereto, thereto and, to the Knowledge knowledge of Sellerthe Company, on each any other party thereto. There exists no breach or default of any Significant Contract on the part of any Transferred Entity which (with or without notice or lapse of time or both) wouldExcept as would not, individually or in the aggregate, reasonably be expected to be material have a Material Adverse Effect, there is no default under any Material Contract by the Company or any of its Subsidiaries party thereto or, to the Transferred Entitiesknowledge of the Company, taken as any other party thereto, and no event has occurred that with the lapse of time or the giving of notice or both would constitute a whole. No Transferred Entity has received default thereunder by the Company or any written notice of an intention to terminateits Subsidiaries party thereto or, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.
(c) As knowledge of the date hereof, no Transferred Entity has entered into and is bound by or subject to any of the following:
(i) other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practiceCompany, any Contract providing for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000;
(ii) other than Contracts entered into in the ordinary course of business, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a whole; or
(iii) other than Contracts entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individuallyparty thereto.
(d) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard forms.
Appears in 2 contracts
Sources: Merger Agreement (Omron Corp /Fi), Merger Agreement (Adept Technology Inc)
Contracts. (a) Section 4.13(a) 3.15 of the Seller’s Company Disclosure Schedules contains Letter identifies each note, bond, mortgage, indenture, contract, agreement, lease, license, permit or other instrument or obligation (each, a “Contract”) that constitutes a Company Material Contract (as defined below), an accurate and complete and correct list copy of all each of which has been provided or made available to Parent by the Company. For purposes of this Agreement, each of the following Contracts, other than those set forth in effect clause (ix) below, that is unexpired and effective as of the date of this Agreement and under which the Company or any of its Subsidiaries has ongoing rights or obligations will be deemed to constitute a “Company Material Contract” (it being understood that the Contracts set forth in clause (ix) shall not be deemed to be Company Material Contracts solely by virtue of being listed in Section 3.15(a)(ix) of the Company Disclosure Letter):
(i) any Contract that is or would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or disclosed by the Company on a Current Report on Form 8-K;
(ii) any Contract that, by its terms, requires payments by the Company or any of its Subsidiaries in excess of $2,500,000 on an annual basis in the aggregate for the remainder of the stated term of such Contract, other than (A) those that are terminable by the Company or any of its Subsidiaries on no more than ninety (90) days’ notice and without any liability or financial obligation to the Company or any of its Subsidiaries, or (B) purchase orders or quotations that are entered into in the ordinary course of business;
(iii) any mortgages, indentures, guarantees, loans, credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit where the Company or one of its Subsidiaries is the borrower or receipt of credit, in excess of $1,000,000, other than (A) accounts receivables and payables, (B) loans by the Company or any of its direct or indirect Subsidiaries to, or guarantees by any of the foregoing for, direct or indirect wholly-owned Subsidiaries of the Company or (C) letters of credit or bonds or agreements related thereto issued by or for the benefit of the Company or one of its Subsidiaries to Governmental Entities in connection with workers compensation Laws, in each case, in the ordinary course of business;
(iv) any Contract (A) limiting or purporting to limit, in any respect, the freedom of the Company or any of its Subsidiaries to engage or participate, or compete with any other Person, in the business currently conducted by the Company and its Subsidiaries or in any market or geographic area, or to make use of any material Intellectual Property owned by the Company or any of its Subsidiaries; (B) prohibiting the Company or any of its Subsidiaries from engaging in any business with any Person or levying a fine, charge or other payment for doing so; (C) in which the Company or its Subsidiaries provides “most favored nation,” “exclusivity,” preferential pricing, priority or similar provisions; (D) containing a purchase option; or (E) containing any non-solicit or non-hire provision restricting the Company or its Subsidiaries, other than any Contracts entered into in the ordinary course of business by the Company or any of its Subsidiaries with consultants pursuant to which the Company or its Subsidiary has agreed not to solicit or hire any employees of the consultant, provided that such Contract does not bind Affiliates of the Company that are not Subsidiaries of the Company;
(v) any Contract with any of the Company’s or any of its Subsidiaries’ Affiliates, officers, directors, employees, or principal stockholders (and their respective Affiliates), or any immediate family member of, or Person who, to the Knowledge of the Company, is controlled by, any such Persons, other than (A) any written employment, agreement or other benefit plan with the Company, (B) the Company’s or its Subsidiaries’ written employee policies and procedures or (C) any Contracts that were sourced by Insight Portfolio Group, LLC but were entered into directly by the Company or one of its Subsidiaries;
(vi) any Contract pursuant to which any Third Party is licensed (including pursuant to a covenant not to ▇▇▇) to use any Owned Company Intellectual Property, and all Contracts pursuant to which the Company or any of its Subsidiaries is licensed (including pursuant to a covenant not to ▇▇▇) to use any Intellectual Property owned by another Person, other than Contracts for (A) commercially available off-the-shelf Software licensed to the Company or any of its Subsidiaries through a “clickwrap” or “shrinkwrap” license or other similar standard terms and conditions for a one-time payment amount or aggregate yearly fee not in excess of $300,000 in any case and (B) the non-exclusive licensing or cross-licensing of Intellectual Property to customers in the ordinary course of business.
(vii) any Contract obligating the Company to manage any assets on behalf of a Third Party or pursuant to which any Third Party manages any assets or properties of the Company or its Subsidiaries;
(viii) any Contract that, by its terms, is reasonably expected to result in payments by the Company or any of its Subsidiaries in excess of $100,000 in the aggregate for the remainder of the stated term of such Contract and (A) is with a sole source supplier of material products or services which products or services are not available from an alternative supplier on commercially reasonable terms and upon reasonable notice or (B) requires the purchase of all or a material portion of the Company’s or any of its Subsidiaries’ requirements for a given product or service from a given Third Party, in either case, which product or service is material to the Company and its Subsidiaries, taken as a whole;
(ix) any Contract relating to the Company’s railcar backlog, as such backlog exists as of the date of this Agreement, to which a Transferred Entity is a party, is bound by or subject to, or pursuant to which other than Contracts entered into in the BGI Business is conducted (the “Specified Contracts”):
(i) any Contract ordinary course of business for the placement, distribution storage of railcars or sale of shares, units or other ownership interests of a Fund rolling stock that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $5,000,000 in 2009are not material;
(ii) any administration agreement or any other Contract for the provision of administrative services that is reasonably expected to provide for payments to, or provide for payments from a Transferred Entity in 2009 in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or less;
(iii) any Contract, other than a Benefit and Compensation Arrangement, that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $10,000,000 in 2009;
(iv) any Contract prohibiting or materially restricting the ability of any Transferred Entity to conduct its business, to engage in any business or operate in any geographical area or to compete with any Person;
(v) any Contract for any joint venture, strategic alliance, partnership or similar arrangement involving a sharing of profits or expenses or payments based on revenues, profits, or assets under management of any Affiliate of Parent or any Fund that is reasonably expected to account for revenue to the BGI Business in 2009 in excess of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be material to the Transferred Entities, taken as a whole;
(vi) any Contract relating to any Indebtedness of a Transferred Entity in an amount in excess of $5,000,000, other than: (A) any mortgage or similar Indebtedness secured by specific property owned by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closing;
(vii) any Contract (including any so-called take-or-pay or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any Transferred Entity in respect of the BGI Business that would reasonably be expected to be material to the Transferred Entities, taken as a whole, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person (other than any Transferred Entity) in each case in excess of $10,000,000;
(viii) any Contract that provides for earn-outs or other similar contingent obligations that would reasonably be expected to result in annual payments in 2009 of $5,000,000 or more;
(ixx) any Contract entered into since January 1, 2007 for 2017 (A) relating to the disposition or acquisition or disposition of a Person or a division of a Person, or for the acquisition or sale of any assets (including Intellectual Property), properties, equity interests or rightsassets, other than inventory or supplies in the ordinary course of business, the aggregate value of which, in each case, is not in excess of $500,000 by the Company or any such sale of its Subsidiaries; or acquisition (B) pursuant to which the Company or any of its Subsidiaries has or may acquire any ownership interest in any other Person or other business enterprise other than any Subsidiary of the Company;
(xi) any Contract not in the ordinary course of business that is a settlement or similar agreement to resolve a dispute that (A) imposes solely monetary obligations on the Company or any such sale of its Subsidiaries after the date of this Agreement reasonably expected to be in excess of $1,000,000, (B) imposes any non-monetary obligations on the Company or acquisition any of its Subsidiaries after the date of this Agreement, or (C) where a claim was made against the Company, does not include a full and complete release of the Company without admission of any liability;
(xii) any Contract between the Company or its Subsidiaries, on the one hand, and any third Person, on the other hand, that creates a joint venture, limited liability company or partnership;
(xiii) any Contract providing for indemnification or guarantee of the obligations of any other Person that would not reasonably be expected to be material to the Transferred EntitiesCompany and its Subsidiaries, taken as a whole, other than any such Contracts involving railcar purchase, leasing, management, service, storage or warranty agreements or entered into in the ordinary course of business;
(xiv) any Contract entered into with a federal Governmental Entity, but excluding any Contract with a counterparty that may be a subcontractor to a Governmental Entity;
(xv) any financial derivatives master agreement or confirmation, or futures account opening agreements and/or brokerage statements, evidencing financial hedging or similar trading activities;
(xvi) any voting agreement or registration rights agreement relating to any securities of the Company;
(xvii) any mortgage, pledge, security agreement, deed of trust or other Contract granting a Lien, other than a Permitted Lien, on any material property or assets of the Company or any of its Subsidiaries;
(xviii) any customer or client Contract (or series of related Contracts) (other than Lease Agreements) that involved revenues in fiscal year 2017 in excess of US$5,000,000 or that is reasonably likely to involve revenues in fiscal year 2018 in excess of US$5,000,000;
(xix) any supply or vendor Contract (or series of related Contracts) that involved payments by the Company or any of its Subsidiaries in fiscal year 2017 in excess of US$5,000,000 or that is reasonably likely to involve payments by the Company or any of its Subsidiaries in fiscal year 2018 in excess of US$5,000,000;
(xx) any Contract that restricts or otherwise limits the payment of dividends or other distributions on equity securities by the Company or any Subsidiary; and
(xxxi) any BGI Affiliate Arrangement that will be in effect after Contract under which the ClosingCompany or any Subsidiary grants any right of first refusal, right of first offer or similar right with respect to any material assets, rights or properties of the Company or any of its Subsidiaries.
(b) Seller has made available to Buyer prior to the date of this Agreement a complete Each Company Material Contract is valid and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effect, and is valid enforceable against the Company and binding on the Transferred Entity that is a party thereto, and, its Subsidiaries (and to the Knowledge of Seller, on the Company is enforceable against each other party thereto. There exists no breach or default of any Significant Contract on ) in accordance with its terms, except if the part of any Transferred Entity which (with or without notice or lapse of time or both) wouldfailure to be in full force and effect would not, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, Company and its Subsidiaries taken as a whole. No Transferred Entity , subject in all cases to: (i) Laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) Laws governing specific performance, injunctive relief and other equitable remedies.
(i) Neither the Company nor its Subsidiaries has materially violated or materially breached, or committed any material default under, any Company Material Contract; (ii) to the Knowledge of the Company, no other Person has materially violated or materially breached, or committed any material default under, any Company Material Contract; and (iii) neither the Company nor its Subsidiaries has received any written notice of an intention to terminateor, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.
(c) As Knowledge of the date hereofCompany, no Transferred Entity has entered into and is bound by other communication regarding any actual or subject to any of the following:
(i) other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practicepossible material violation or material breach of, or material default under, any Contract providing for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000;
(ii) other than Contracts entered into in the ordinary course of business, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a whole; or
(iii) other than Contracts entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individuallyCompany Material Contract.
(d) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard forms.
Appears in 2 contracts
Sources: Merger Agreement (Icahn Enterprises Holdings L.P.), Merger Agreement (American Railcar Industries, Inc.)
Contracts. (a) Neither the Company nor any of its Subsidiaries is a party to, and none of their respective properties or other assets is subject to, any Contract that is of a nature required to be filed as an exhibit to a report or filing under the Securities Act or the Exchange Act, other than any Contract that is filed as an exhibit to the Filed Company SEC Documents.
(b) Section 4.13(a3.10(b) of the Seller’s Company Disclosure Schedules contains Letter sets forth a correct and complete and correct list of all of the following Contracts, in effect as of the date of this Agreement, and the Company has, prior to which a Transferred Entity is a partythe date hereof, is bound by made available to Parent correct and complete copies (including all amendments, modifications, extensions, renewals or subject to, or pursuant to which the BGI Business is conducted (the “Specified Contracts”):guaranties) of:
(i) all Contracts of the Company or any Contract for of its Subsidiaries (A) involving payments by or to the placement, distribution Company or sale any of shares, units its Subsidiaries of more than $750,000 on an annual basis or other ownership interests (B) involving payments by or to the Company or any of a Fund that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess its Subsidiaries of more than $5,000,000 in 2009100,000 on an annual basis and which may not be terminated by the Company without cause within one year without penalty;
(ii) any administration agreement all Contracts to which the Company or any other Contract for the provision of administrative services that its Subsidiaries is reasonably expected to provide for payments toa party, or provide for payments by which the Company, any of its Subsidiaries or any of its Affiliates is bound, that contain a covenant restricting the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, would restrict the ability of Parent or any of its Subsidiaries, including the Surviving Corporation and its Subsidiaries) to compete in any business or with any person or in any geographic area or which prohibits the Company or any of its Subsidiaries from a Transferred Entity soliciting suppliers anywhere in 2009 in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or lessthe world;
(iii) all Contracts of the Company or any Contract, of its Subsidiaries with any Affiliate of the Company (other than a Benefit and Compensation Arrangement, that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity any of its Subsidiaries) in excess of which the amount involved exceeds $10,000,000 in 200960,000 on an annual basis;
(iv) any (A) Contract prohibiting to which the Company or materially restricting any of its Subsidiaries is a party granting any license to Intellectual Property, and (B) other license (other than real estate) involving payments by the ability Company or any of any Transferred Entity to conduct its business, to engage in any business or operate in any geographical area or to compete with any PersonSubsidiaries of more than $750,000 on an annual basis;
(v) any Contract for any joint ventureall confidentiality agreements (other than in the ordinary course of business), strategic alliance, partnership agreements by the Company not to acquire assets or similar arrangement involving securities of a sharing third party or agreements by a third party not to acquire assets or securities of profits or expenses or payments based on revenues, profits, or assets under management of any Affiliate of Parent or any Fund that is reasonably expected to account for revenue to the BGI Business in 2009 in excess of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be material to the Transferred Entities, taken as a wholeCompany;
(vi) any Contract relating to any Indebtedness of a Transferred Entity in an amount in excess of $5,000,000, other than: (A) any mortgage or similar Indebtedness secured by specific property owned involving payments by or to the Company or any of its Subsidiaries, of more than $750,000 on behalf an annual basis that requires consent of or notice to a Client; (B) third party in the event of or with respect to the Merger, including in order to avoid a breach or termination of or loss of benefit under any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closingsuch Contract;
(vii) all joint venture, partnership or other similar agreements involving co-investment with a third party to which the Company or any Contract (including any so-called take-or-pay or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any Transferred Entity in respect of the BGI Business that would reasonably be expected to be material to the Transferred Entities, taken as its Subsidiaries is a whole, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person (other than any Transferred Entity) in each case in excess of $10,000,000party;
(viii) any Contract that provides for earn-outs or other similar contingent obligations that would reasonably be expected to result in annual payments in 2009 of $5,000,000 or morewith a Governmental Authority;
(ix) all material outsourcing Contracts;
(x) all Contracts with investment bankers, financial advisors, attorneys, accountants or other advisors retained by the Company or any of its Subsidiaries involving payments by or to the Company or any of its Subsidiaries of more than $750,000 on an annual basis;
(xi) all Contracts providing for the indemnification by the Company or any of its Subsidiaries of any person, except for any such Contract that (i) is not material to the Company or any of its Subsidiaries and (ii) was entered into since January 1, 2007 for the acquisition or disposition of a Person or a division of a Person, or for the acquisition or sale of any assets (including Intellectual Property), properties, equity interests or rights, other than any such sale or acquisition in the ordinary course of business business;
(xii) all Contracts pursuant to which any indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of its Subsidiaries of any indebtedness of any other person (other than the Company or any of its Subsidiaries) (except for such sale indebtedness or acquisition that would guarantees the aggregate principal amount of which does not reasonably be expected to be material to exceed $750,000 on an annual basis and excluding trade payables arising in the Transferred Entities, taken as a wholeordinary course of business); and
(xxiii) any BGI Affiliate Arrangement that will be in effect after all Contracts listed on Section 3.21 of the ClosingCompany Disclosure Letter.
(b) Seller has made available to Buyer prior to the date of this Agreement a complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified ContractNone of the Company or any of its Subsidiaries (x) is, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract or has received written notice or has Knowledge that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effect, and is valid and binding on the Transferred Entity that is a party thereto, and, to the Knowledge of Seller, on each any other party thereto. There exists no to any of its Contracts is, in violation or breach of or default of any Significant Contract on the part of any Transferred Entity which (with or without notice or lapse of time or both) wouldunder, or (y) has waived or failed to enforce any rights or benefits under any Contract to which it is a party or any of its properties or other assets is subject, and (ii) to the Knowledge of the Company, there has occurred no event giving to others any right of termination, amendment or cancellation of (with or without notice or lapse of time or both) any such Contract except for violations, breaches, defaults, waivers or failures to enforce rights or benefits covered by clauses (i) or (ii) above that, individually or in the aggregate, have not had and would not reasonably be expected to be material to the Transferred Entities, taken as have a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a wholeCompany Material Adverse Effect.
(c) As of the date hereof, no Transferred Entity has entered into and is bound by or subject to any of the following:
(i) other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practice, any Contract providing for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000;
(ii) other than Contracts entered into in the ordinary course of business, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a whole; or
(iii) other than Contracts entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individually.
(d) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard forms.
Appears in 2 contracts
Sources: Merger Agreement (Brookdale Senior Living Inc.), Merger Agreement (American Retirement Corp)
Contracts. (a) Section 4.13(aSchedule 5.12(a) of the Seller’s Disclosure Schedules contains sets forth a complete and correct list of all of the following Contracts, in effect Contracts to which the Company or any of its Subsidiaries is a party or by which it is bound as of the date of this Agreementhereof (collectively, to which a Transferred Entity is a party, is bound by or subject to, or pursuant to which the BGI Business is conducted (the “Specified Significant Contracts”):
(i) each Contract that relates to employment or severance between the Company or any Contract of its Subsidiaries (other than Contracts relating to employment that are required under applicable local Laws and contain customary terms for the placement, distribution such jurisdiction) and (A) any of their respective officers or sale of shares, units or other ownership interests of a Fund that is reasonably expected to provide for payments todirectors, or provide for payments from, a Transferred Entity (B) other employees of the Company or any of its Subsidiaries who are entitled to an annual base salary in excess of one hundred and fifty thousand dollars ($5,000,000 in 2009150,000) per annum;
(ii) each Contract with any administration agreement labor union or association representing any employee of the Company or any other Contract for the provision of administrative services that is reasonably expected to provide for payments to, or provide for payments from a Transferred Entity in 2009 in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or lessSubsidiaries;
(iii) each Contract relating to the sale of any Contractof the assets of, or the provisions of any services by, the Company or any of its Subsidiaries (other than a Benefit the sale or provision of goods and Compensation Arrangement, that is reasonably expected to provide services in the Ordinary Course of Business) for payments to, or provide for payments from, a Transferred Entity consideration in excess of $10,000,000 100,000 during the twelve-month period ending on the date hereof or the equivalent in 2009other currencies;
(iv) each Contract entered into during the three-year period ending on the date hereof relating to the acquisition or disposition by the Company or any Contract prohibiting or materially restricting the ability of its Subsidiaries of any Transferred Entity to conduct its business, division or product line or the capital stock of any other Person, in each case (A) for consideration in excess of $250,000 or the equivalent in other currencies, (B) pursuant to which any liabilities or obligations of the Company or its Subsidiaries remain outstanding, or (C) providing for “earn-outs,” “performance guarantees” or other similar contingent purchase price payments by the Company or any of its Subsidiaries remain outstanding;
(v) each Contract providing for the incurrence of outstanding Indebtedness as of or after the date hereof or the making of any outstanding loans as of or after the date hereof (other than routine advances for business expenses and relocation expenses in accordance with the Company’s policies in the Ordinary Course of Business in an amount not exceeding $25,000 to any individual employee);
(vi) each Contract creating or governing a partnership, limited liability company, joint venture, teaming arrangement, the sharing of profits or expenses, or other similar arrangement (other than Subsidiary Charter Documents, arrangements between the Company and/or its Subsidiaries and Contracts entered into in the Ordinary Course of Business whereby the Company receives or shares commissions or other compensation);
(vii) each Contract with a Significant Customer (A) containing a covenant expressly limiting the freedom of the Company or any of its Subsidiaries to engage in any business with any Person or operate in any geographical geographic area or to compete with any PersonPerson or (B) obligating the Company or any of its Subsidiaries to purchase or otherwise obtain any product or service exclusively from a single party or sell any product or service exclusively to a single party;
(vviii) each Contract creating a Lien (other than Permitted Exceptions) upon any assets of the Company or any of its Subsidiaries, other than purchase money security interests in connection with the acquisition of equipment in the Ordinary Course of Business;
(ix) each Contract reflecting a settlement of any threatened or pending Legal Proceedings, other than (A) releases immaterial in nature or amount entered into with former employees or independent contractors of the Company and its Subsidiaries in the Ordinary Course of Business in connection with the routine cessation of such employee’s or independent contractor’s employment or service with the Company and its Subsidiaries, (B) settlement agreements for cash only (which has been paid) and does not exceed $250,000 as to such settlement or (C) settlement agreements entered into more than five (5) years prior to the date of this Agreement under which none of the Company or its Subsidiaries have any material continuing obligations, liabilities, or rights (excluding releases);
(x) each Contract with a Significant Customer;
(xi) any distributor, sales, reseller, advertising, agency, original equipment manufacturing, sales representative, data center, web hosting, co-location, joint marketing or joint development Contract for any joint venture, strategic alliance, partnership or similar arrangement involving a sharing of profits or expenses or payments based on revenues, profits, or assets under management of any Affiliate of Parent or any Fund that is reasonably expected to account for revenue to the BGI Business in 2009 involves aggregate costs in excess of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be material to the Transferred Entities, taken as a whole250,000;
(vixii) Contracts with a Significant Customer granting such Significant Customer a first refusal, first offer, “most favored customer” pricing or licensing arrangement or similar right or arrangement to purchase or acquire any right, asset, service or property of the Company.
(xiii) each Contract granting any power of attorney;
(xiv) each Contract relating to the guaranty of any Indebtedness obligation for borrowed money and each letter of a Transferred Entity in credit, performance bond, bankers acceptance or other guaranty of an amount obligation in excess of $5,000,000, other than: (A) any mortgage or similar Indebtedness secured by specific property owned by or on behalf of a Client100,000; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closing;and
(viixv) any each Contract (including any so-called take-or-pay or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any Transferred Entity in respect of providing for the BGI Business that would reasonably be expected to be material to the Transferred Entities, taken as a whole, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities indemnification of any Person (other than any Transferred Entity(x) Customer License Agreements and other Contracts with customers entered into in each case the Ordinary Course of Business, (y) those contracts set forth on Schedule 5.12(a)(iv) and (z) other Contracts entered into in excess the Ordinary Course of $10,000,000;Business with commercially reasonable indemnification terms).
(viiib) any True and correct copies of each Significant Contract that provides for earn-outs have been made available to Parent prior to the date hereof. Each Significant Contract is a valid and binding agreement of the Company or a Subsidiary, as the case may be, and, to the Knowledge of the Company, the other parties thereto, enforceable in accordance with its terms (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar contingent obligations laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity). Except as set forth on Schedule 5.12(b), the Company or applicable Subsidiary and, to the Knowledge of the Company, each of the other parties thereto, are not in breach of, default or violation under, any of such Significant Contracts and no event has occurred that would reasonably be expected to result in annual payments in 2009 with notice or lapse of $5,000,000 or more;
(ix) any Contract entered into since January 1, 2007 for the acquisition or disposition of a Person or a division of a Persontime, or both, would constitute such a breach, default or violation, except for the acquisition or sale of any assets (including Intellectual Property), properties, equity interests or rights, other than any such sale breaches, defaults or acquisition in the ordinary course of business or any such sale or acquisition violations that would not reasonably be expected to be material to the Transferred Entitiesoperations of the Company and its Subsidiaries, taken as a whole; and
. Neither the Company nor any Subsidiary has (xi) received any BGI Affiliate Arrangement written notice of any default or termination under any Significant Contract or (ii) waived or released any of its material rights thereunder. To the Knowledge of the Company, none of the counterparties to the Significant Contracts has notified the Company or any of its Subsidiaries that will be it plans to terminate, cancel or not renew such Significant Contract. To the Knowledge of the Company, no Person (other than a Significant Customer which is covered in effect after Section 5.21) has outstanding the Closingright to receive or require a rebate, chargeback, penalty or change in delivery schedule under any Significant Contract.
(bc) Seller No negative determination of responsibility has made available to Buyer prior been issued or, to the date Knowledge of this Agreement a complete the Company, threatened in writing against and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue provided to the BGI Business on an annualized basis and (iii) Company or any of its Subsidiaries in connection with any Government Contract that is reasonably expected to provide for payments to a Transferred Entity in excess or Government Bid. None of $1,000,000 in 2009 that contains key person provisions pertaining to employees the Company nor any of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effect, and is valid and binding on the Transferred Entity that is a party theretoits Subsidiaries, and, to the Knowledge of Sellerthe Company, on each other party thereto. There exists no breach current employee of the Company or default any of its Subsidiaries, has been debarred or suspended from doing business with any Significant Contract on the part of any Transferred Entity which (with or without notice or lapse of time or both) wouldGovernmental Body, individually or in the aggregateor, reasonably be expected to be material to the Transferred EntitiesKnowledge of the Company, taken as a whole. No Transferred Entity has received threatened with debarment or suspension by any written notice Governmental Body (or by the relevant contracting official of an intention to terminatesuch entity), not to renew or to challenge been informed in writing that any actions by the validity Company or enforceability of any Significant ContractCompany Subsidiary could result in debarment or suspension by any Governmental Body, the terminationand, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.
(c) As Knowledge of the date hereofCompany, no Transferred Entity has entered into and is bound by circumstances exist that would warrant the institution of debarment or subject to suspension proceedings against the Company, any of the following:
(i) other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practice, its Subsidiaries or any Contract providing for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000;
(ii) other than Contracts entered into in the ordinary course of business, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a whole; or
(iii) other than Contracts entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individually.
(d) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) employee of the Seller’s Disclosure Schedules is a description of Company or any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory ArrangementsSubsidiary.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard forms.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Verint Systems Inc)
Contracts. (ai) Except for this Agreement and Contracts filed as exhibits to the Filed SEC Documents, Section 4.13(a3.01(i) of the Seller’s Company Disclosure Schedules contains Letter sets forth a complete and correct list of all list, as of the following Contractsdate of this Agreement, and the Company has made available to Parent complete and correct copies (including by filing with the SEC), of:
(A) each Contract that would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(B) each Contract to which the Company or any of its Subsidiaries is a party that restricts the ability of the Company or any of its Subsidiaries to compete in any business or with any Person in any geographical area (other than any such restriction under any Real Property Lease) in a manner that is material to the Company and its Subsidiaries, taken as a whole;
(C) each loan and credit agreement, note, debenture, bond, indenture and other similar Contract pursuant to which any Indebtedness of the Company or any of its Subsidiaries, in effect as each case in excess of $5,000,000 is outstanding or may be incurred, other than any such Contract between or among any of the Company or any of its Subsidiaries;
(D) each Contract to which the Company or any of its Subsidiaries is a party that by its terms calls for aggregate payments to or by the Company or any of its Subsidiaries of more than $2,000,000, except for (1) Real Property Leases or (2) any such Contract that may be canceled, without any penalty or other liability to the Company or any of its Subsidiaries in excess of $250,000, within one year;
(E) each Contract entered into within five years of the date of this Agreement, to which a Transferred Entity the Company or any of its Subsidiaries is a party, is bound by or subject to, or pursuant to which the BGI Business is conducted (the “Specified Contracts”):
(i) any Contract for the placement, distribution or sale of shares, units or other ownership interests of a Fund that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $5,000,000 in 2009;
(ii) any administration agreement or any other Contract for the provision of administrative services that is reasonably expected to provide for payments to, or provide for payments from a Transferred Entity in 2009 in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or less;
(iii) any Contract, other than a Benefit and Compensation Arrangement, that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $10,000,000 in 2009;
(iv) any Contract prohibiting or materially restricting the ability of any Transferred Entity to conduct its business, to engage in any business or operate in any geographical area or to compete with any Person;
(v) any Contract for any joint venture, strategic alliance, partnership or similar arrangement involving a sharing of profits or expenses or payments based on revenues, profits, or assets under management of any Affiliate of Parent or any Fund that is reasonably expected to account for revenue to the BGI Business in 2009 in excess of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be material to the Transferred Entities, taken as a whole;
(vi) any Contract relating to any Indebtedness of a Transferred Entity in an amount in excess of $5,000,000, other than: (A) any mortgage or similar Indebtedness secured by specific property owned by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closing;
(vii) any Contract (including any so-called take-or-pay or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any Transferred Entity in respect of the BGI Business that would reasonably be expected to be material to the Transferred Entities, taken as a whole, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person (other than any Transferred Entity) in each case in excess of $10,000,000;
(viii) any Contract that provides for earn-outs or other similar contingent obligations that would reasonably be expected to result in annual payments in 2009 of $5,000,000 or more;
(ix) any Contract entered into since January 1, 2007 party for the acquisition or disposition by the Company or any of a Person its Subsidiaries of properties or a division assets for, in each case, aggregate consideration of a Person, or more than $5,000,000 except for the acquisition or sale acquisitions and dispositions of any properties and assets (including Intellectual Property), properties, equity interests or rights, other than any such sale or acquisition in the ordinary course of business (including acquisitions and dispositions of inventory);
(F) each Contract to which the Company or any such sale of its Subsidiaries is a party constituting a joint venture, partnership, limited liability or acquisition other similar agreement (excluding licensing Contracts) relating to the formation, creation, operation, management or control of any partnership or joint venture that would not reasonably be expected to be is material to the Transferred Entitiesbusiness of the Company and its Subsidiaries, taken as a whole; and
(xG) any BGI Affiliate Arrangement that will be Contract with respect to the employment of any director or executive officer of the Company; Each such Contract described in effect after the Closingclauses (A) through (G) is referred to herein as a “Material Contract”.
(bii) Seller has made available to Buyer prior Each of the Material Contracts is valid and binding on the Company or the Subsidiary of the Company party thereto and, to the date Knowledge of this Agreement a complete the Company, each other party thereto, and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effect, and is except for such failures to be valid and binding on the Transferred Entity that is a party thereto, and, or to the Knowledge of Seller, on each other party thereto. There exists no breach or default of any Significant Contract on the part of any Transferred Entity which (with or without notice or lapse of time or both) wouldbe in full force and effect that, individually or in the aggregate, reasonably be expected to be material to would not have a Material Adverse Effect. None of the Transferred Entities, taken as a whole. No Transferred Entity Company or any Subsidiary of the Company has received any written notice of an intention default under any Material Contract by the Company or any of its Subsidiaries and, to terminatethe Knowledge of the Company, not there is no default by any other party thereto, and no event has occurred that with the lapse of time or the giving of notice or both would constitute a default thereunder by the Company or any of its Subsidiaries or, to renew or to challenge the validity or enforceability Knowledge of the Company, by any Significant Contractother party thereto, the termination, failure to renew or challenge of which wouldin each case except as, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as would not have a wholeMaterial Adverse Effect.
(c) As of the date hereof, no Transferred Entity has entered into and is bound by or subject to any of the following:
(i) other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practice, any Contract providing for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000;
(ii) other than Contracts entered into in the ordinary course of business, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a whole; or
(iii) other than Contracts entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individually.
(d) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard forms.
Appears in 2 contracts
Sources: Merger Agreement (Teleflex Inc), Merger Agreement (Arrow International Inc)
Contracts. (a) Section 4.13(a) of the Seller’s Disclosure Schedules contains a complete and correct list of all of the following Contracts, in effect as As of the date of this Agreement, to which a Transferred Entity neither the Company nor any Company Subsidiary is a party, is party to or bound by or subject to, or pursuant to which the BGI Business is conducted (the “Specified Contracts”):any Contract that:
(i) is required to be filed by the Company pursuant to Item 601(b) of Regulation S-K under the Securities Act (other than any Contract for the placement, distribution or sale of shares, units or other ownership interests of a Fund that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $5,000,000 in 2009Company Benefit Plan);
(ii) relates to any administration partnership, joint venture, co-investment, limited liability, strategic alliance or similar agreement involving the Company or any of the Company Subsidiaries (other Contract for than any such agreement solely between or among the provision of administrative services that is reasonably expected to provide for payments to, or provide for payments from a Transferred Entity in 2009 in excess of $10,000,000 Company and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or lessthe Company Subsidiaries);
(iii) contains any Contractnon-compete, exclusivity, “most favored nations” or other similar provision that limits or purports to limit, in any material respect, either the type of business in which the Company or any of the Company Subsidiaries (or, after giving effect to the Merger, Parent or its Subsidiaries) may engage, the terms or conditions the Company or any of the Company Subsidiaries (or, after giving effect to the Merger, Parent or its Subsidiaries) can offer to any other Person, or the geographic area in which the Company or any of the Company Subsidiaries (or, after giving effect to the Mergers, Parent or its Subsidiaries) may so engage;
(iv) provides for the acquisition or disposition by the Company or any Company Subsidiary of any properties or assets (except for acquisitions and dispositions of properties, assets and inventory in the ordinary course of business consistent with past practice), in each case with a fair market value in excess of $15,000,000;
(v) involves any pending or contemplated merger, consolidation or similar business combination transaction;
(vi) by its terms obligates the Company or any of the Company Subsidiaries to make expenditures (other than a Benefit and Compensation Arrangement, that is reasonably expected principal and/or interest payments or the deposit of other reserves with respect to provide for debt obligations) or entitles the Company or any of the Company Subsidiaries to payments to, or provide for payments from, a Transferred Entity (A) in excess of $10,000,000 in 2009;
any 12 month period or (ivB) any Contract prohibiting or materially restricting the ability of any Transferred Entity to conduct its business, to engage in any business or operate in any geographical area or to compete with any Person;
(v) any Contract for any joint venture, strategic alliance, partnership or similar arrangement involving a sharing of profits or expenses or payments based on revenues, profits, or assets under management of any Affiliate of Parent or any Fund that is reasonably expected to account for revenue to the BGI Business in 2009 in excess of $10,000,000 on an annual (or annualized) basis or 50,000,000, in the aggregate over the term of such Contract; provided that would reasonably be expected to be material to the Transferred Entities, taken as a whole;
(vi) any Contract relating to any Indebtedness of a Transferred Entity in an amount in excess of $5,000,000, other than: (A) any mortgage or similar Indebtedness secured by specific property owned by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity expenditures and payments under hardware reseller arrangements will be liable following the Closing;
(vii) any Contract (including any so-called take-or-pay or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any Transferred Entity in respect of the BGI Business measured on a net basis; provided further that would reasonably be expected to be material to the Transferred Entities, taken as a whole, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person (other than any Transferred Entity) in each case in excess of $10,000,000;
(viii) any Contract that provides for earn-outs or other similar contingent obligations that would reasonably be expected to result in annual payments in 2009 of $5,000,000 or more;
(ix) any Contract customer Contracts entered into since January 1, 2007 for the acquisition or disposition of a Person or a division of a Person, or for the acquisition or sale of any assets (including Intellectual Property), properties, equity interests or rights, other than any such sale or acquisition in the ordinary course of business or any such sale or acquisition that would are not reasonably be expected required to be material to the Transferred Entities, taken as a whole; and
(x) any BGI Affiliate Arrangement that will be in effect scheduled until 45 calendar days after the Closing.
(b) Seller has made available to Buyer prior to the date of this Agreement a complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each ;
(ivii) Specified Contractrelates to the settlement or proposed settlement of any dispute or Action in which the amount to be paid in settlement involves (A) the issuance of any securities by the Company or any of the Company Subsidiaries or (B) the payment of any cash or other consideration having a value, (ii) Investment Advisory Arrangement which accounts for in each case, of more than $1,000,000 1,000,000;
(viii) contains a standstill or similar Contract pursuant to which the Company or any of revenue the Company Subsidiaries has agreed not to acquire assets or securities of any other Person;
(ix) was entered into with any of the Company Subsidiaries or any other Person in which the Company holds, directly or indirectly, any equity interest, which relates to the BGI Business on an annualized basis and rights of the Company with respect to voting, rights of first offer, rights of first refusal or other similar rights regarding such equity interests in such Person;
(iiix) Contract that is reasonably expected to provide for payments to evidences a Transferred Entity capitalized lease obligation in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i)10,000,000, (ii) and (iii) being the “Significant Contracts”) is in full force and effect, and is valid and binding on the Transferred Entity or that is a party theretoan indenture, andcredit agreement, to the Knowledge of Sellerloan agreement, on each security agreement, guarantee, note, mortgage, suretyship, “keep well” or other party thereto. There exists no breach agreement providing for or default guaranteeing indebtedness of any Significant Contract on the part Person in excess of any Transferred Entity which $10,000,000 (with or without notice or lapse of time or both) would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.
(c) As of the date hereof, no Transferred Entity has entered into and is bound by or subject to any of the following:
(i) other than investment management and distribution Contracts surety or performance bonds, letters of credit or similar agreements entered into in the ordinary course of business consistent with past practicepractice in each case to the extent not drawn upon), except for any Contract solely among or between the Company and any of the Company Subsidiaries;
(xi) contains restrictions on the ability of the Company or any of the Company Subsidiaries to pay dividends or other distributions (other than pursuant to the Company Articles and the Company Regulations);
(xii) contains a put, call or similar right pursuant to which the Company or any of the Company Subsidiaries could be required to purchase or sell, as applicable, any Contract providing for the indemnification equity interests of any Person with respect or assets that have a fair market value or purchase price of more than $5,000,000, or constitutes an interest rate cap, interest rate collar, interest rate swap or other Contract relating to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000hedging transaction;
(iixiii) other than Contracts entered into in is (A) material license (by or to the ordinary course of businessCompany or any Company Subsidiary), any type of Contract covenant not to cap fees▇▇▇, share fees escrow, or other payments, share expenses, waive fees Contract that grants rights in or to reimburse any material Intellectual Property rights and (B) an exclusive license or assume other Contract affecting the Company’s or any of the Company Subsidiaries’ ability to disclose, own, enforce, use, or all fees or expenses thereunder license any material Intellectual Property (provided, however, that in any such case would the following are not required to be material scheduled but shall constitute Material Contracts solely for purposes of Section 4.14(b) and the last sentence of Section 4.14(c) if they otherwise qualify: (w) non-exclusive licenses granted to the Transferred Entities, taken as a whole; or
(iii) other than Contracts entered into customers in the ordinary course of business consistent with past practice; (x) non-exclusive licenses implied by the sale of a product and (y) licenses of commercially available, any Contract requiring any Transferred Entity (A) unmodified, off-the-shelf Software licensed pursuant to coclick-invest with any other Personthrough, (B) to provide seed capital click-wrap, or similar investment or (C) to invest in any investment product, in each case in an amount in excess of standard terms and conditions for less than $5,000,000 individually.10,000,000 annually); or
(dxiv) Notwithstanding anything to would prohibit or materially delay the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) consummation of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision Merger or the Transactions. Each such Contract described in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of clauses (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and through (iixiv) $5,000,000 in 2008 for all other Investment Advisory Arrangementsabove is referred to herein as a “Material Contract”.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard forms.
Appears in 2 contracts
Sources: Merger Agreement (Cincinnati Bell Inc), Merger Agreement (Cincinnati Bell Inc)
Contracts. (a) Section 4.13(a2.13(a) of the Seller’s Disclosure Schedules contains a complete and correct list of all of the following ContractsSchedule lists, in effect as of the date of this Agreement, other than Company Employee Plans (except those Contracts required to which a Transferred Entity is a partybe listed pursuant to Section 2.13(a)(xiii)), is bound by or subject to, or pursuant each Contract to which the BGI Business Company or any of its Subsidiaries is conducted (a party or by which they are legally bound that falls into any of the “Specified Contracts”):following categories:
(i) any Contract leases, lease guaranties, subleases or similar agreements for the placement, distribution or sale leasing (the “Leases”) of shares, units or other ownership interests of a Fund that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $5,000,000 in 2009the Leased Real Property;
(ii) any administration agreement Contract that involved aggregate payments by the Company or any other Contract for the provision of administrative services that is reasonably expected to provide for payments to, or provide for payments from a Transferred Entity in 2009 its Subsidiaries in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice 175,000 in fiscal year 2014 or, to the Knowledge of 180 days or lessthe Company as of the date hereof, fiscal year 2015;
(iii) any Contract, other than a Benefit and Compensation Arrangement, Contract that is reasonably expected involved aggregate payments to provide for payments to, the Company or provide for payments from, a Transferred Entity any of its Subsidiaries in excess of $10,000,000 350,000 in 2009fiscal year 2014 or, to the Knowledge of the Company as of the date hereof, fiscal year 2015;
(iv) any Contract prohibiting or materially restricting relating to the ability acquisition of (i) any Transferred Entity to conduct its business, to engage ownership interest in any Person or other business enterprise or operate division thereof (whether by merger, consolidation, sale of stock, sale of assets or otherwise) and containing executory obligations to the Company or any of its Subsidiaries or (ii) assets whose value is in any geographical area or to compete with any Personexcess of $500,000 since the Look-back Date;
(v) any Contract for any joint venture, strategic alliance, partnership or similar arrangement involving a sharing of profits or expenses or payments based on revenues, profits, or assets under management of any Affiliate of Parent or any Fund that is reasonably expected to account for revenue relating to the BGI Business in 2009 in excess consummated sale, lease, conveyance or other disposition of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be material to assets of the Transferred Entities, taken as a wholeCompany and its Subsidiaries since the Look-back Date;
(vi) any Contract relating that relates to the formation, creation, operation, management or control of any Indebtedness of a Transferred Entity in an amount in excess of $5,000,000material legal partnership, joint venture entity, joint marketing strategic alliance, or other than: (A) any mortgage similar Person or similar Indebtedness secured by specific property owned by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closingbusiness combination;
(vii) any Contract relating to any outstanding Indebtedness of the Company or any of its Subsidiaries (including any so-called take-or-pay mortgages, indentures, guarantees, loans or keep well credit agreements) under which (A) any Person has directly , security agreement or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any Transferred Entity in respect of the BGI Business that would reasonably be expected to be material other Contracts relating to the Transferred Entities, taken as borrowing of money or extension of credit) with a whole, principal or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person (other than any Transferred Entity) in each case notional amount in excess of $10,000,000100,000;
(viii) any Contract that provides under which the Company or any of its Subsidiaries is granted a license to any third party’s Intellectual Property Rights (“Licensed Intellectual Property Rights”) included in the Company Products, other than (A) licenses and related services Contracts for earncommercially-outs available Technology or other similar contingent obligations that would reasonably be expected to result Intellectual Property Rights involving less than $50,000 of payments from the Company or any of its Subsidiaries per year or $250,000 over the current term of such license or Contract; (B) confidentiality or nondisclosure Contracts (“NDAs”); (C) Open Source Licenses; and (D) Contracts with employees or individual independent contractors for the assignment of, or license to, Intellectual Property Rights, in annual payments each case entered into in 2009 the ordinary course of $5,000,000 or morebusiness;
(ix) any Contract entered into since January 1, 2007 for under which the acquisition Company or disposition any of its Subsidiaries has licensed any material Company Intellectual Property to a Person or a division of a third Person, or for the acquisition or sale of any assets (including Intellectual Property), properties, equity interests or rights, other than (A) Contracts that do not contain any such sale or acquisition in the ordinary course of business or any such sale or acquisition that would not reasonably be expected to be material to the Transferred Entities, taken as a whole; and
(x) any BGI Affiliate Arrangement that will be in effect after the Closing.
(b) Seller has made available to Buyer prior to the date of this Agreement a complete restrictive covenants and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effect, and is valid and binding on the Transferred Entity that is a party thereto, and, to the Knowledge of Seller, on each other party thereto. There exists no breach or default of any Significant Contract on the part of any Transferred Entity which (with or without notice or lapse of time or both) would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.
(c) As of the date hereof, no Transferred Entity has entered into and is bound by or subject to any of the following:
(i) other than investment management and distribution Contracts are entered into in the ordinary course of business; (B) Contracts formed pursuant to one of the Company’s standard Contracts (or in a form similar in substance to, or with provisions with substantially similar legal effect as the provisions of, one of such forms); and (C) NDAs entered into in the ordinary course of business;
(x) any Contract (A) that materially limits the ability of the Company or any of its Subsidiaries to (1) engage in or compete in any line of business consistent or with past practiceany Person or in any geographic area, (2) acquire any product or other asset or service from any other Person or (3) develop, sell, supply, distribute, offer support or service any product, technology or other asset to or for any other Person; or (B) that contains most favored customer pricing provisions with any third party or grants any exclusive rights, rights of first refusal, or rights of first negotiation to any Person;
(xi) any Contract providing for the indemnification of the obligations of any other Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected material to result in aggregate indemnification payments by the Company and its Subsidiaries, taken as a Transferred Entity in excess of $10,000,000;
(ii) whole, other than any such Contracts entered into in the ordinary course of business;
(xii) any Contract with any Governmental Authority or Related Party (other than employment-related Contracts or Contracts related to the acquisition of equity in the Company or any of its Subsidiaries);
(xiii) any employment Contract that (a) provides current annual base compensation in excess of $175,000; (b) includes terms which vary materially from terms in the Company’s customary offer letter or includes severance terms that vary from the Company’s standard severance policy; (c) limits the Company’s ability to terminate an employment relationship at will; (d) provides the employee with a right to terminate his employment relationship for “Good Reason” and receive payments or benefits; (e) provides for an offer of any equity grant which grant is not reflected in Section 2.2 of the Disclosure Schedule; or (f) provides for additional paid time off, any type of Contract to cap feesguaranteed bonus, share fees car allowance or other paymentsnon-standard employee benefits in the aggregate exceeding $15,000 for any employee, share expensesand provided that the foregoing sub-clauses (b), waive fees or to reimburse or assume (c) and (f) shall not include provisions as a matter of any or all fees or expenses thereunder that in any such case would be material Law applicable to the Transferred Entitiesemployment relationship if such provision is not set forth in an employment Contract;
(xiv) any Contract, or group of Contracts with a Person (or group of affiliated Persons), the termination or breach of which would reasonably be expected to have a material adverse effect on the Company and its Subsidiaries, taken as a whole, and is not disclosed pursuant to Section 2.13(a)(i) through Section 2.13(a)(xiii); orand
(iiixv) other than Contracts entered any commitment or agreement to enter into in any of the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individuallyforegoing.
(db) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller The Company has made available to Buyer a true and complete copy copies of each Contract disclosed pursuant to Section 2.13(a) (such Contracts, the “Company Material Contracts”). Each Company Material Contract is, to the Knowledge of the Company, valid and binding on the Company (and/or each such Subsidiary of the Company party thereto) and, to the Knowledge of the Company, each other party thereto, and is in full force and effect, enforceable against the Company or each such Subsidiary of the Company party thereto, as the case may be, in accordance with its terms, except as such enforceability may be subject to (a) the Laws of general application relating to bankruptcy, insolvency, reorganization, moratorium and other similar Laws affecting or relating to creditors’ rights generally and (b) general principles of equity. Neither the Company nor any of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support ContractsSubsidiaries that is a party thereto, in each case provided or, to certain funds and clients the Knowledge of the securities lending Company, any other party thereto, is in breach in any material respect of, or short-term cash businesses default in any material respect under, any Company Material Contract, and no event has occurred that with notice or lapse of time or both would constitute such a breach or default thereunder by the Company or any of its Subsidiaries, or, to the Knowledge of the BGI BusinessCompany, and none any other party thereto. Neither the Company nor any of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard formsits Subsidiaries has received any written notice of termination or cancellation under any Company Material Contract, received any written notice of breach or default in any material respect under any Company Material Contract which breach has not been cured, or granted to any third Person any rights, adverse or otherwise, that would constitute a breach in any material respect of any Company Material Contract.
Appears in 2 contracts
Contracts. (ai) Section 4.13(a4.1(j) of the Seller’s Company Disclosure Schedules contains Letter sets forth a correct and complete and correct list of all of, as of the following Contractsdate hereof (and the Company has made available to Parent correct and complete copies of each such Contract), any Contracts (or group of related Contracts with the same party or an Affiliate of such party), which the Company or any of its Subsidiaries is a party to or bound by (other than any Company Benefit Plan (except in the case of clause (I) below) or Company Real Property Lease), in effect each case, that:
(A) would be required to be filed by the Company as a “Material Contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(B) (1) restricts the ability of the Company or any of its Subsidiaries (or, after the Acceptance Time, Parent or its Subsidiaries, or, after the Effective Time, the Surviving Company or its Subsidiaries) to compete in any business or with any Person or in any geographical area or (2) would require the disposition of any material assets or line of business of the Company or any Company Subsidiary (or, after the Acceptance Time, Parent or its Subsidiaries, or, after the Effective Time, the Surviving Company or its Subsidiaries);
(C) by its terms calls for aggregate payments or receipt by or to the Company or any of its Subsidiaries of more than $1,000,000 over the remaining term of such Contract;
(D) constitutes a joint venture or partnership or similar arrangement that is material to the business of the Company and its Subsidiaries, taken as a whole or in which the Company owns more than a ten percent (10%) voting or economic interest and which interest has a value of more than $1,000,000;
(E) relates to any loan and credit agreement, note, debenture, bond, indenture, security agreement, letter of credit, capital lease, or other Contract relating to indebtedness , pursuant to which any indebtedness of the Company or any of its Subsidiaries, in each case in excess of $1,000,000, is outstanding, or may be incurred, assumed, guaranteed or secured by any asset, other than any such Contract solely between or among any of the Company or any of its wholly-owned Subsidiaries;
(F) prohibits the payment of dividends or distributions in respect of any Equity Interest of the Company or any of its Subsidiaries, prohibits the pledging of any Equity Interest of the Company or any of its Subsidiaries or prohibits the issuance of guarantees by any Subsidiary of the Company;
(G) was entered into within two (2) years of the date of this AgreementAgreement and relates to the acquisition or disposition by the Company or any of its Subsidiaries of properties or assets for, to which a Transferred Entity is a partyin each case, is bound by or subject to, or aggregate consideration of more than $1,000,000 and/or pursuant to which the BGI Business is conducted (the Company or any of its Subsidiaries has continuing indemnification, “Specified Contracts”):
(i) any Contract for the placement, distribution or sale of shares, units earn-out” or other ownership interests of a Fund contingent payment or guarantee obligations, in each case, that is reasonably expected to provide for could result in payments to, or provide for payments from, a Transferred Entity in excess of $5,000,000 in 20091,000,000;
(iiH) is entered into with any administration agreement directors, executive officers (as such term is defined in the Exchange Act) or five percent (5%) stockholders of the Company or any of their Affiliates (other Contract for than the provision of administrative services that is reasonably expected to provide for payments toCompany or any Company Subsidiary) or immediate family members (in each case, or provide for payments from a Transferred Entity in 2009 in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or lessother than any Company Benefit Plan);
(iiiI) any Contract, other than a Benefit and Compensation Arrangement, that is reasonably expected to provide for payments to, entered into with employees or provide for payments from, a Transferred Entity in excess consultants of $10,000,000 in 2009;
(iv) any Contract prohibiting or materially restricting the ability of any Transferred Entity to conduct its business, to engage in any business or operate in any geographical area or to compete with any Person;
(v) any Contract for any joint venture, strategic alliance, partnership or similar arrangement involving a sharing of profits or expenses or payments based on revenues, profits, or assets under management of any Affiliate of Parent Company or any Fund that is reasonably expected to account Company Subsidiary and creates severance or any similar obligations for revenue to the BGI Business in 2009 in excess of $10,000,000 on an annual (Company or annualized) basis or that would reasonably be expected to be material to the Transferred Entities, taken as a whole;
(vi) any Contract relating to any Indebtedness of a Transferred Entity Company Subsidiary in an amount in excess of $5,000,000, other than: (A) any mortgage or similar Indebtedness secured by specific property owned by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closing;
(vii) any Contract (including any so-called take-or-pay or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any Transferred Entity in respect of the BGI Business that would reasonably be expected to be material to the Transferred Entities, taken as a whole500,000, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities requires payment of any Person (other than any Transferred Entity) in each case total annual compensation in excess of $10,000,000500,000;
(viiiJ) after the Effective Time would restrict Parent or any Contract that provides for earn-outs or other similar contingent obligations that would reasonably be expected of its Subsidiaries in any material respect with respect to result in annual payments in 2009 of $5,000,000 or morethe Covered Products;
(ixK) any Contract entered into since January 1, 2007 is for the acquisition research, development, manufacturing, supply, testing, distribution, marketing, promotion, license, offer to sell, sale or disposition other research, development or commercial activities by the Company or any of a Person its Subsidiaries or a division of a Person, by any Company Partner that is (i) material to any Covered Products or for the acquisition or sale of (ii) material to any assets (including material Intellectual Property), properties, equity interests or rightsProperty Rights related to any Covered Products, other than any such sale or acquisition non-disclosure agreements, employee invention assignments, purchase orders, materials transfer agreements, software agreements and similar agreements entered into in the ordinary course of business business;
(L) is a material settlement, conciliation or similar agreement with any Governmental Authority or which would require the Company or any such sale or acquisition that would not reasonably be expected of its Subsidiaries to be material to the Transferred Entities, taken as a whole; and
(x) any BGI Affiliate Arrangement that will be in effect pay consideration of more than $1,000,000 after the Closing.
(b) Seller has made available to Buyer prior to the date of this Agreement a complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement;
(M) constitutes a collaboration, joint development or strategic alliance that is material to any Covered Product or the exercise of any Covered Product Rights; or
(N) pursuant to which the Company or any of its Subsidiaries obtains or grants the right to use, or a covenant not to be sued under, any Intellectual Property Rights material to the Company and its Subsidiaries taken as a whole (other than licenses with respect to commercially available software). Each such Contract described in clauses (iA) Specified through (N) is referred to herein as a “Material Contract”. Any Contract disclosed under one subsection of Section 4.1(j) of the Company Disclosure Letter shall be deemed to be disclosed for all other subsections of Section 4.1(j) of the Company Disclosure Letter, to the extent applicable.
(ii) Investment Advisory Arrangement which accounts for more than $1,000,000 Each of revenue the Material Contracts is (A) a legal, valid and binding obligation of the Company or any Subsidiary of the Company party thereto and, to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess knowledge of $1,000,000 in 2009 that contains key person provisions pertaining to employees the executive officers of a Transferred Entity ((i)the Company, the other party thereto, (iiB) and (iii) being the “Significant Contracts”) is in full force and effecteffect and enforceable against the Company or the Subsidiary of the Company party thereto, and is as applicable, in accordance with its terms, and, (C) to the knowledge of the executive officers of the Company, enforceable against each other party thereto in accordance with its terms, except for such failures to be valid and binding on or to be in full force and effect and enforceable that, individually or in the Transferred Entity aggregate, would not have a Company Material Adverse Effect.
(1) None of the Company or any Subsidiary of the Company (x) is, or has received notice that the Company or any of its Subsidiaries is, in default under or in breach or violation of any Material Contract or (y) received any written notice from any counterparty to any Material Contract that such counterparty intends to terminate or not renew any Material Contract or is a party theretoseeking the renegotiation of such Material Contract or substitute performance thereunder, and, (2) to the Knowledge knowledge of Sellerthe executive officers of the Company, on each other party thereto. There exists no counterparty to any Material Contract is, or is alleged to be, in default under or in breach or default violation of any Significant Material Contract, and (3) to the knowledge of the executive officers of the Company, no event has occurred that with the lapse of time or the giving of notice or both would constitute a default under, or result in a breach or violation of, any Material Contract on by the part Company or any of any Transferred Entity which its Subsidiaries (with or without notice or lapse of time or both) would), except, in each case, as would not individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as aggregate have a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a wholeCompany Material Adverse Effect.
(c) As of the date hereof, no Transferred Entity has entered into and is bound by or subject to any of the following:
(i) other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practice, any Contract providing for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000;
(ii) other than Contracts entered into in the ordinary course of business, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a whole; or
(iii) other than Contracts entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individually.
(d) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard forms.
Appears in 2 contracts
Sources: Merger Agreement (Amylin Pharmaceuticals Inc), Merger Agreement (Bristol Myers Squibb Co)
Contracts. (a) Section 4.13(a) SECTION 5.22 of the Seller’s Disclosure Schedules Letter contains a complete and correct accurate list of all contracts (written or oral), undertakings, commitments or agreements (other than contracts, undertakings, commitments or agreements for employee benefit matters set forth in SECTION 5.12 of the Disclosure Letter and real property leases set forth in SECTION 5.26 of the Disclosure Letter) of the following Contracts, in effect as of the date of this Agreement, to which a Transferred Entity is a party, is bound by or subject to, or pursuant categories to which the BGI Business Company or any of its Subsidiaries is conducted a party or by which any of them is bound (collectively, and together with the “Specified Contracts”contracts, undertakings, commitments or agreements for employee benefit matters set forth in SECTION 5.12 of the Disclosure Letter and the real property leases set forth in SECTION 5.26 of the Disclosure Letter, the "CONTRACTS"):
(i) any Contract for Contracts requiring annual expenditures by or liabilities of the placement, distribution or sale of shares, units or other ownership interests of a Fund that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity Company and its Subsidiaries in excess of One Hundred Thousand Dollars ($5,000,000 100,000) which have a remaining term in 2009excess of one hundred eighty (180) days or are not cancelable (without material penalty, cost or other liability) within one hundred eighty (180) days;
(ii) any administration agreement promissory notes, loans, agreements, indentures, evidences of indebtedness or any other Contract for instruments relating to the provision lending of administrative services that is reasonably expected to provide for payments tomoney, whether as borrower, lender or provide for payments from a Transferred Entity in 2009 guarantor, in excess of One Hundred Thousand Dollars ($10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or less;100,000).
(iii) Contracts containing covenants limiting the freedom of the Company or any Contract, of its Subsidiaries to engage in any line of business (other than a Benefit and Compensation Arrangementprohibitions against engaging in business relating to specific product lines) or compete with any person, that is reasonably expected to provide for payments toin any product line or line of business, or provide for payments from, a Transferred Entity in excess of $10,000,000 in 2009operate at any location;
(iv) joint venture or partnership agreements or joint development or similar agreements pursuant to which any Contract prohibiting third party has been entitled or materially restricting is reasonably expected to be entitled to share in profits or losses of the ability of any Transferred Entity to conduct Company or its business, to engage in any business or operate in any geographical area or to compete with any PersonSubsidiaries;
(v) Contracts with any Contract for any joint venturefederal, strategic alliance, partnership state or similar arrangement involving local government which have a sharing of profits or expenses or payments based on revenues, profits, or assets under management of any Affiliate of Parent or any Fund that is reasonably expected to account for revenue to the BGI Business in 2009 remaining term in excess of $10,000,000 on an annual one year or are not cancelable (without material penalty, cost or annualizedother liability) basis or that would reasonably be expected to be material to the Transferred Entities, taken as a wholewithin one year;
(vi) other Contracts or commitments in which the Company or any Contract of its Subsidiaries has granted manufacturing rights or exclusive marketing rights relating to any Indebtedness product or service, any group of a Transferred Entity in an amount in excess of $5,000,000, other than: (A) products or services or any mortgage or similar Indebtedness secured by specific property owned by or on behalf of a Clientterritory; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closing;and
(vii) any Contract (including any so-called take-or-pay or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any Transferred Entity in respect to the knowledge of the BGI Business that would Company, as of the date hereof any other Contract the performance of which could be reasonably be expected to be material to require expenditures by the Transferred Entities, taken as a whole, Company or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities any of any Person (other than any Transferred Entity) in each case its Subsidiaries in excess of One Hundred Thousand Dollars ($10,000,000;
(viii) any Contract that provides for earn-outs or other similar contingent obligations that would reasonably be expected to result in annual payments in 2009 of $5,000,000 or more;
(ix) any Contract entered into since January 1, 2007 for the acquisition or disposition of a Person or a division of a Person, or for the acquisition or sale of any assets (including Intellectual Property100,000), properties, equity interests or rights, other than any such sale or acquisition in the ordinary course of business or any such sale or acquisition that would not reasonably be expected to be material to the Transferred Entities, taken as a whole; and
(x) any BGI Affiliate Arrangement that will be in effect after the Closing.
(b) Seller has Except as set forth in SECTION 5.22 of the Disclosure Letter, true and complete copies of the written Contracts and descriptions of verbal Contracts, if any, have been delivered or made available to Buyer prior to the date of this Agreement a complete UMI and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this AgreementMergerSub. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract that Contracts is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effect, and is valid and binding on obligation of the Transferred Entity that is a party thereto, Company and, to the Knowledge Company's knowledge, the other parties thereto, enforceable against the Company in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, moratorium, reorganization, arrangement or similar laws affecting creditors' rights generally and by general principles of Sellerequity. To the knowledge of the Company, except for the execution of this Agreement and the consummation of the transactions contemplated hereby and thereby, no event has occurred which would, on each other party thereto. There exists no breach or default of any Significant Contract on the part of any Transferred Entity which (with or without notice or lapse of time or both, entitle the holder of any indebtedness issued pursuant to a Contract identified in SECTION 5.22 of the Disclosure Letter in response to paragraph (ii) wouldabove to accelerate, or which does accelerate, the maturity of any such indebtedness.
(c) None of the Company or its Subsidiaries is in breach, default or violation (and no event has occurred or not occurred through the Company's action or inaction or, to the knowledge of the Company, through the action or inaction of any third parties, which with notice or the lapse of time or both would constitute a breach, default or violation) of any term, condition or provision of any Contract to which the Company or any of its Subsidiaries is now a party or by which any of them or any of their respective properties or assets may be bound, except for violations, breaches or defaults that, individually or in the aggregate, reasonably be expected to be material to would not have a Material Adverse Effect on the Transferred Entities, taken as a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a wholeCompany.
(c) As of the date hereof, no Transferred Entity has entered into and is bound by or subject to any of the following:
(i) other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practice, any Contract providing for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000;
(ii) other than Contracts entered into in the ordinary course of business, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a whole; or
(iii) other than Contracts entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individually.
(d) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard forms.
Appears in 2 contracts
Sources: Merger Agreement (Union Miniere S a /Fi), Merger Agreement (Laser Power Corp/Fa)
Contracts. (a) Section 4.13(a) of the Seller’s Disclosure Schedules contains a complete and correct list of all of the following Contracts, in effect as of the date of this Agreement, to which a Transferred Entity Each Contract is a partyvalid and binding agreement, is bound by or subject to, or pursuant to which the BGI Business is conducted (the “Specified Contracts”):
(i) any Contract for the placement, distribution or sale of shares, units or other ownership interests of a Fund that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $5,000,000 in 2009;
(ii) any administration agreement or any other Contract for the provision of administrative services that is reasonably expected to provide for payments to, or provide for payments from a Transferred Entity in 2009 in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or less;
(iii) any Contract, other than a Benefit and Compensation Arrangement, that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $10,000,000 in 2009;
(iv) any Contract prohibiting or materially restricting the ability of any Transferred Entity to conduct its business, to engage in any business or operate in any geographical area or to compete with any Person;
(v) any Contract for any joint venture, strategic alliance, partnership or similar arrangement involving a sharing of profits or expenses or payments based on revenues, profits, or assets under management of any Affiliate of Parent or any Fund that is reasonably expected to account for revenue to the BGI Business in 2009 in excess of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be material to the Transferred Entities, taken as a whole;
(vi) any Contract relating to any Indebtedness of a Transferred Entity in an amount in excess of $5,000,000, other than: (A) any mortgage or similar Indebtedness secured by specific property owned by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closing;
(vii) any Contract (including any so-called take-or-pay or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any Transferred Entity in respect of the BGI Business that would reasonably be expected to be material to the Transferred Entities, taken as a whole, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person (other than any Transferred Entity) in each case in excess of $10,000,000;
(viii) any Contract that provides for earn-outs or other similar contingent obligations that would reasonably be expected to result in annual payments in 2009 of $5,000,000 or more;
(ix) any Contract entered into since January 1, 2007 for the acquisition or disposition of a Person or a division of a Person, or for the acquisition or sale of any assets (including Intellectual Property), properties, equity interests or rights, other than any such sale or acquisition in the ordinary course of business or any such sale or acquisition that would not reasonably be expected to be material to the Transferred Entities, taken as a whole; and
(x) any BGI Affiliate Arrangement that will be in effect after the Closing.
(b) Seller has made available to Buyer prior to the date of this Agreement a complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effect, and neither the Company nor any of its Subsidiaries is valid and binding on party thereto nor, to the Transferred Entity that is a Company’s best knowledge, any other party thereto, and, to the Knowledge of Seller, on each other party thereto. There exists no is in breach or default of any Significant Contract on the part of any Transferred Entity which (whether with or without notice or lapse the passage of time or the giving of notice or both) would, individually or in under the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability terms of any Significant such Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.
(c) As . None of the date hereofCompany or any of its Subsidiaries has assigned, no Transferred Entity has entered into and is bound by delegated, or subject otherwise transferred any of its rights or obligations with respect to any Contracts, or granted any power of attorney with respect thereto or to any of the followingCompany or its Subsidiaries’ assets. No Contract (i) requires the Company or an of its Subsidiaries to post a bond or deliver any other form of security or payment to secure its obligations thereunder or (ii) imposes any non-competition covenants that may be binding on, or restrict the Business or require any payments by or with respect to Buyer or any of its Affiliates. The Company has given to Buyer true and correct (A) fully executed copies of each written Contract and (B) written summaries of each oral Contract.
(b) The Contracts constitute all the material agreements, statements of work, purchase orders, arrangements, understandings and other instruments in effect to which the Company or any of its Subsidiaries is a party or to which any Shares or any of the Company or its Subsidiaries’ assets are bound. Schedule 3.17 lists all material Contracts, oral or written, separately referencing the applicable subsection below in each case, including:
(i) other than investment management all client Contracts which have generated revenues to the Company and distribution Contracts entered into in the ordinary course of business consistent with past practice, any Contract providing for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent its Subsidiaries or otherwise that would reasonably be are expected to result in aggregate indemnification payments by a Transferred Entity generate revenues to the Company and its Subsidiaries in excess of $10,000,00010,000 in any of the current or next two (2) fiscal years or any of the two (2) preceding fiscal years of the Company;
(ii) other than Contracts entered into in the ordinary course of business, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a whole; or
(iii) other than Contracts entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other PersonContract pursuant to which the Company or any of its Subsidiaries is required to pay, (B) has paid or is entitled to provide seed capital receive or similar investment or (C) to invest in any investment product, in each case in has received an amount in excess of $5,000,000 individually10,000 during the current fiscal year or any one of the two preceding fiscal years;
(iii) all employment Contracts, employee leasing Contracts, and consultant and sales representatives Contracts;
(iv) all material sales, agency, factoring, commission and distribution contracts to which the Company or any of its Subsidiaries is a party;
(v) all ongoing agreements for purchases or receipt by the Company or any of its Subsidiaries of media, supplies, equipment, goods or services (other than under Section 3.17(b)(ii) or (iii));
(vi) all joint venture, strategic alliance, limited liability company and partnership agreements to which the Company or any of its Subsidiaries is a party;
(vii) all significant documents relating to any acquisitions or dispositions of assets by the Company or any of its Subsidiaries;
(viii) all material licensing agreements, including agreements licensing Intellectual Property Rights, other than “shrink wrap” licenses;
(ix) all secrecy, confidentiality and nondisclosure agreements restricting the conduct of the Company or any of its Subsidiaries;
(x) all contracts relating to patents, trademarks, service marks, trade names, brands, copyrights, trade secrets and other Intellectual Property Rights of the Company or any of its Subsidiaries;
(xi) all guarantees, indemnification arrangements and other hold harmless arrangements made or provided by the Company or any of its Subsidiaries, including all ongoing agreements for repair, warranty, maintenance, service, indemnification or similar obligations;
(xii) all contracts or agreements with or pertaining to the Company or any of its Subsidiaries to which or any Beneficial Holder or any Affiliate of any Beneficial Holder is a party;
(xiii) all agreements relating to real and tangible personal property, including any Real Property lease, sublease or space sharing, license or occupancy agreement, whether the Company or any of its Subsidiaries is granted or granting rights thereunder to occupy or use any premises;
(xiv) any agreement to manufacture any goods to which the Company or any of its Subsidiaries is a party;
(xv) all material agreements relating to Tangible Assets; and
(xvi) all agreements relating to outstanding Indebtedness.
(c) None of the Company or any of its Subsidiaries is subject to any Contract which prohibits, limits or restricts any use by it of any information regarding its customers, including limiting the solicitation of or other communication by it with its customers or providing any information regarding its customers to any third party. Each of the Company and its Subsidiaries has acted in compliance in all material respects with all terms and conditions and privacy policies published on each website, including with respect to its use of information regarding customers. Except as set forth in Schedule 3.17(c), the disclosure to Buyer, and the use by it, of customer identities and information regarding them and communications with them by Buyer, will not violate any Contract.
(d) Notwithstanding anything to Each of the contrary contained Company and its Subsidiaries is in this Agreementcompliance with all covenants, including all financial covenants, in no event shall Specified Contracts include all notes, indentures, bonds and other instruments or agreements evidencing any Investment Advisory ArrangementIndebtedness.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard forms.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Union Bridge Holdings Ltd.), Stock Purchase Agreement (Iao Kun Group Holding Co LTD)
Contracts. (aA) Section 4.13(aSubsections (i) through (vi) of the Seller’s Disclosure Schedules contains PART A OF SCHEDULE 3.1(O) each contain a complete and correct list of all accurate listing of the following Contractscontracts, in effect as of the date of this Agreementagreements, commitments, leases, licenses, arrangements, instruments and obligations, whether written or oral (and, if oral, a complete and accurate summary thereof), to which a Transferred Entity the Company or any Subsidiary of the Company is a party, is bound by or subject to, or pursuant to which the BGI Business is conducted (the “Specified Contracts”)::
(i) any Contract for the placementeach contract, distribution or sale of sharesagreement, units or other ownership interests of a Fund that commitment, lease, license, arrangement, instrument and/or obligation which is reasonably expected likely to provide for involve aggregate annual payments to, by or provide for payments from, a Transferred Entity in excess to the Company or any Subsidiary of the Company of more than $5,000,000 in 200950,000;
(ii) any administration agreement all collective bargaining agreements and Plans of the Company maintained for or providing benefits to employees of, or independent contractors or other agents for, the Company or any other Contract for Subsidiary of the provision of administrative services that is reasonably expected to provide for payments to, or provide for payments from a Transferred Entity in 2009 in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or lessCompany;
(iii) all contracts and agreements relating to (A) any Contractindebtedness, notes payable (including notes payable in connection with acquisitions), accrued interest payable or other obligations for borrowed money, whether current, short-term, or long-term, secured or unsecured, of the Company or any of its Subsidiaries, (B) any purchase money indebtedness or earn-out or similar obligation in respect of purchases of property or assets by the Company or any of its Subsidiaries, (C) any lease obligations of the Company or any of its Subsidiaries under leases which are capital leases in accordance with GAAP, (D) any financing of the Company or any of its Subsidiaries effected through "special purpose entities" or synthetic leases or project financing, (E) any obligations of the Company or any of its Subsidiaries in respect of banker's acceptances or letters of credit (other than a Benefit stand-by letters of credit in support of ordinary course trade payables), (F) any obligation or liability of the Company or any of its Subsidiaries with respect to interest rate swaps, collars, caps, currency derivatives and Compensation Arrangementsimilar hedging obligations or (G) any guaranty of any of the foregoing (the liabilities and obligations referred to in (A) through (G) above, that is reasonably expected to provide "COMPANY INDEBTEDNESS") or any Liens upon any properties or assets of the Company or any Subsidiary of the Company as security for payments to, or provide for payments from, a Transferred Entity in excess of $10,000,000 in 2009Company Indebtedness;
(iv) any Contract prohibiting all leases or materially restricting the ability of any Transferred Entity subleases relating to conduct its business, to engage in any business or operate in any geographical area or to compete with any Personreal property;
(v) all contracts and agreements that restrict the ability of the Company and/or any Contract for any joint venture, strategic alliance, partnership Subsidiary or similar arrangement involving a sharing of profits or expenses or payments based on revenues, profitsaffiliate of, or assets under management successor to, the Company, or, to the knowledge of the Company, any Affiliate executive officer of Parent the Company or any Fund that is reasonably expected Subsidiary thereof, to account for revenue compete in any line of business or with any Person or in any geographic area or during any period of time, or grant any exclusive license to the BGI Business in 2009 in excess of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be material to the Transferred Entities, taken as a whole;Company Owned IP; and
(vi) any Contract relating to any Indebtedness of a Transferred Entity in an amount in excess of $5,000,000all other contracts, other than: (A) any mortgage or similar Indebtedness secured by specific property owned by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closing;
(vii) any Contract (including any so-called take-or-pay or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any Transferred Entity in respect of the BGI Business that would reasonably be expected to be material to the Transferred Entitiescommitments, taken as a wholeleases, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person (other than any Transferred Entity) in each case in excess of $10,000,000;
(viii) any Contract that provides for earn-outs or other similar contingent obligations that would reasonably be expected to result in annual payments in 2009 of $5,000,000 or more;
(ix) any Contract entered into since January 1licenses, 2007 for the acquisition or disposition of a Person or a division of a Personarrangements, or for the acquisition or sale of any assets (including Intellectual Property), properties, equity interests or rights, other than any such sale or acquisition in the ordinary course of business or any such sale or acquisition that would not reasonably be expected to be material to the Transferred Entities, taken as a whole; and
(x) any BGI Affiliate Arrangement that will be in effect after the Closing.
(b) Seller has made available to Buyer prior to the date of this Agreement a complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effect, and is valid and binding on the Transferred Entity that is a party thereto, and, to the Knowledge of Seller, on each other party thereto. There exists no breach or default of any Significant Contract on the part of any Transferred Entity which (with or without notice or lapse of time or both) would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.
(c) As of the date hereof, no Transferred Entity has entered into and is bound by or subject to any of the following:
(i) other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practice, any Contract providing for the indemnification of any Person with respect to liabilitiesinstruments and/or obligations, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000;
(ii) other than Contracts entered into not made in the ordinary course of business, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be which are material to the Transferred Entities, taken as a whole; or
(iii) other than Contracts entered into Company or any Subsidiary of the Company in the ordinary course conduct of business consistent with past practicetheir respective businesses, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment the termination or (C) to invest in any investment product, in each case in an amount in excess cancellation of $5,000,000 individually.
(d) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is would have or would reasonably be expected to provide for payments to have a Transferred Entity in excess of $10,000,000 in 2009Company Material Adverse Effect.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard forms.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Advanced Technology Industries Inc), Merger Agreement (Advanced Technology Industries Inc)
Contracts. (a) Except (x) as set forth on Section 4.13(a) 3.19 of the Seller’s Disclosure Schedules contains Letter, (y) for Contracts filed as exhibits to Company SEC Reports (“Filed Contracts”) or (z) for the Employee Benefit Plans, neither the Company nor any of its Subsidiaries is a complete and correct list of all party to or bound by any of the following Contracts, in effect Contracts as of the date hereof:
(i) Any Contract which is a “material contract” (as such term is defined in Item 601(b)(10) of this AgreementRegulation S-K promulgated under the Securities Act);
(ii) Any Contract which materially limits the ability of the Company or any of its Subsidiaries to conduct its business for the benefit of a third party, or which, following the consummation of the Merger, would materially limit the ability of the Surviving Company to conduct its business, or that purports to restrict in any material respect the right of the Company or any of its Subsidiaries to compete with any Person or operate in any geographic area or location in which any Company or any Subsidiary of the Company may conduct business (other than (x) confidentiality agreements entered into by the Company or any of its Subsidiaries in the ordinary course of business and (y) Investment Advisory Arrangements containing any such provisions in the ordinary course of business that address the allocation of investment opportunities or the formation of successor funds);
(iii) Any Contract that contains an exclusivity provision, “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 Company or any of its material Subsidiaries of more than $5,000,000 in the fiscal year ended December 31, 2015;
(iv) Any Contract that contains a put, call, right of first refusal or similar right pursuant to which the Company or any of its Subsidiaries would be required to purchase or sell, as applicable, any equity interests of any Subsidiary of the Company or Fund, or which grant a Transferred Entity is right to sell to the Company or purchase from the Company any material asset (other than in the ordinary course of business);
(v) Any Contract which contains a party“clawback” or similar undertaking requiring the reimbursement or refund of any fees (whether performance based or otherwise) paid to the Company or any of its Subsidiaries;
(vi) Any Contract relating to “soft-dollar” arrangements (i.e., is bound providing for benefits relating to commissions generated from financial transactions executed by broker-dealers on behalf of any Funds);
(vii) Any Contract for borrowed money (whether current, short-term or subject tolong-term and whether secured or unsecured, or any financial guarantee) incurred by the Company or any of its Subsidiaries or pursuant to which the BGI Business is conducted (the “Specified Contracts”):
(i) Company or any Contract for the placementof its Subsidiaries has any obligations as guarantor, distribution surety, co-signer, endorser or sale co-maker in respect of shares, units or other ownership interests any obligation of a Fund that is reasonably expected to provide for payments toany Person, or provide for payments fromany capital maintenance, a Transferred Entity 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 involving amounts in excess of $5,000,000 in 2009500,000;
(iiviii) any administration agreement Any Contract which is a mortgage, security agreement, capital lease or any other Contract for the provision of administrative services that is reasonably expected to provide for payments tosimilar agreement, or provide for payments from a Transferred Entity in 2009 in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or less;
(iii) any Contract, other than a Benefit and Compensation Arrangementeach case, that is reasonably expected to provide for payments to, creates or provide for payments from, grants a Transferred Entity in excess of $10,000,000 in 2009;
(iv) Lien on any Contract prohibiting or materially restricting the ability of any Transferred Entity to conduct its business, to engage in any business or operate in any geographical area or to compete with any Person;
(v) any Contract for any joint venture, strategic alliance, partnership or similar arrangement involving a sharing of profits or expenses or payments based on revenues, profits, property or assets under management of any Affiliate of Parent or any Fund that is reasonably expected to account for revenue to the BGI Business in 2009 in excess of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be are material to the Transferred EntitiesCompany and its Subsidiaries, taken as a whole;
(viix) any Any Contract relating to any Indebtedness 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 Company or any of a Transferred Entity its Subsidiaries of more than $5,000,000 in an amount in excess of $5,000,000the fiscal year ended December 31, other than: (A) any mortgage or similar Indebtedness secured by specific property owned by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closing2015;
(viix) Any Contract that restricts payment of dividends or any Contract (including any so-called take-or-pay or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any Transferred Entity distributions in respect of the BGI Business that would reasonably be expected to be material to equity interests of the Transferred Entities, taken as a whole, Company or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities any of any Person (other than any Transferred Entity) in each case in excess of $10,000,000its Subsidiaries;
(viiixi) Any Contract pursuant to which the Company or any Contract that provides for earn-outs of its Subsidiaries has continuing material indemnification obligations or other similar contingent obligations payments to any Person that would reasonably be expected to result in annual payments in 2009 excess of $5,000,000 or more;
(ix) any Contract entered into since January 11,000,000, 2007 except for the acquisition or disposition of a Person or a division of a Person, or for the acquisition or sale of any assets (including Intellectual Property), properties, equity interests or rights, other than any such sale or acquisition in the ordinary course of business or any such sale or acquisition that would not reasonably be expected to be material to the Transferred Entities, taken as a whole; and
(x) any BGI Affiliate Arrangement that will be in effect after the Closing.
(b) Seller has made available to Buyer prior to the date of this Agreement a complete and correct copy of each written Specified vendor or content licensing Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effect, and is valid and binding on the Transferred Entity that is a party thereto, and, to the Knowledge of Seller, on each other party thereto. There exists no breach or default of any Significant Contract on the part of any Transferred Entity which (with or without notice or lapse of time or both) would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.
(c) As of the date hereof, no Transferred Entity has entered into and is bound by or subject to any of the following:
(i) other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practice, any Contract providing for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000(y) non-disclosure agreements;
(iixii) Any Contract, except for this Agreement, relating to the acquisition or disposition of any business by the Company or its Subsidiaries (whether by merger, sale of stock, 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);
(xiii) Any Contract entered into since January 1, 2014 involving any resolution or settlement of any actual or threatened Action (A) with a value of greater than $1,000,000 or (B) which imposes material continuing obligations on the Company or any of its Subsidiaries or that provides for any continuing injunctive or other non-monetary relief, in each case, other than Contracts entered into confidentiality obligations;
(1) Any Contract pursuant to which the Company or any of its Subsidiaries has been granted any option, license or similar right relating to the Intellectual Property of a third party, in each case that is material to the business or assets of the Company and its Subsidiaries, taken as a whole (but excluding any non-exclusive “click-through” or similar end-user license for commercially available software), and (2) any Contract pursuant to which any option, license or similar right relating to Company-Owned IP has been granted to a third party, in each case that is material to the business or assets of the Company and its Subsidiaries, taken as a whole (but excluding any non-exclusive licenses granted in the ordinary course of business);
(xv) Any other Contract (or group of related Contracts), except for Investment Advisory Arrangements, the performance of which requires aggregate payments to or from the Company or any type of Contract to cap feesits Subsidiaries during the 12 month period ending June 30, share fees 2016 in excess of $5,000,000 that is not terminable with less than sixty (60) days’ notice without material penalty by the Company or other payments, share expenses, waive fees any of its Subsidiaries or to reimburse or assume any or all fees or expenses thereunder that in any such case would be is otherwise material to the Transferred EntitiesCompany and its Subsidiaries, taken as a whole;
(xvi) Any Contract between the Company or any of its Subsidiaries on the one hand, and any affiliate of the Company (other than any Subsidiary of the Company) on the other hand;
(xvii) (A) any Investment Advisory Arrangement or any Contract which sets forth, governs or in any way modifies any fee, charge or other amount payable to the Company or any of its Subsidiaries 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 or (B) any Fund Document requiring the Company or any of its Subsidiaries to invest in any Person; or
(iiixviii) other than Contracts entered into Any Fund Document containing change in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital control provisions or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individually.
(d) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining provisions. Each such Contract in clauses (i) through (xviii) above and each Filed Contract is referred to employees of herein as a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009“Material Contract”.
(gb) Seller The Company has made available or provided to Buyer a Parent or its Representatives copies that are true and complete copy correct in all material respects of all Material Contracts.
(c) Each Material Contract is a valid and binding obligation of the Company or one of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support ContractsSubsidiaries, in each case provided as applicable, and, to certain funds and clients the Knowledge of the securities lending Company, is in full force and effect and enforceable against the other party or short-term cash businesses parties thereto in accordance with its terms (except to the extent that any Material Contract has expired in accordance with its terms), except as would not, individually or in the aggregate, have a Company Material Adverse Effect, subject to (a) the effect of bankruptcy, fraudulent conveyance, reorganization, moratorium and other similar Laws relating to or affecting the enforcement of creditors’ rights generally, (b) general equitable principles (whether considered in a proceeding in equity or at law) and (c) an implied covenant of good faith and fair dealing. Neither the Company nor any Subsidiary of the BGI BusinessCompany is in breach of or default under the terms of any Material Contract where such breach or default will have, and none individually or in the aggregate, a Company Material Adverse Effect. To the Knowledge of the Contracts used by Company, no other party to any Material Contract is in material breach of or default under the Transferred Entities for such purposes materially deviates from such standard formsterms of any Material Contract except as would not have, individually or in the aggregate, a Company Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Cifc LLC)
Contracts. (a) Section 4.13(a) 3.18 of the Seller’s Disclosure Schedules Letter contains a complete and correct list of all of the following Contractslist, in effect as of the date hereof, of this Agreement, all Contracts (other than Employee Benefit Plans and other than any Material Contracts that are Excluded Assets) related to the FH Business to which a Transferred Entity Seller or any of its Affiliates is a partyparty or by which any of their respective assets is bound, is bound by or subject to, or pursuant to which and that fall within any of the BGI Business is conducted following categories (the “Specified Material Contracts”):
(a) each Contract with a Key Customer (other than (i) any Contract for the placementsuch contract which is terminable by a Transferred FH Company, distribution or sale of shares, units or other ownership interests a Closing Subsidiary of a Fund that is reasonably expected to provide for payments toTransferred FH Company or an FH Affiliate (in respect of the FH Business), as applicable, without material liability, penalty or provide for payments frompremium on 90 or fewer days’ notice and (ii) purchase orders, a Transferred Entity sales orders, rebate agreements or invoices under such contracts entered into in excess the ordinary course of $5,000,000 in 2009business);
(iib) each Contract with a Key Supplier (other than (i) any administration agreement or any other Contract for the provision of administrative services that such contract which is reasonably expected to provide for payments to, or provide for payments from a Transferred Entity in 2009 in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon FH Company, Closing Subsidiary of a Transferred FH Company or FH Affiliate (in respect of the FH Business), as applicable, without material liability, penalty or premium on 90 or fewer days’ notice and (ii) purchase orders, sales orders, rebate agreements or invoices under such contracts entered into in the ordinary course of 180 days or lessbusiness);
(iiic) each Contract which limits the ability, in any material respect, of (i) a Transferred FH Company or any of its Closing Subsidiaries or an FH Affiliate (in respect of the FH Business) to compete with any Person generally or in any geographic area in which any Transferred FH Company or any Closing Subsidiary thereof or an FH Affiliate (in respect of the FH Business) conducts the FH Business, or (ii) a Transferred FH Company or any of its Closing Subsidiaries or any FH Affiliate (in respect of the FH Business) from entering into any line of business, or from freely providing services or supplying products to any customer or potential customer, or in any part of the world;
(d) each material Transferred IP Contract, other than a Benefit non-disclosure agreements, employee invention assignments, customer end user agreements, “clickwrap”, “shrinkwrap,” open source or similar Contracts for generally commercially available computer software, firmware or data, and Compensation Arrangement, that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity similar agreements entered into in excess the ordinary course of business with annual license fees of less than $10,000,000 in 2009100,000;
(ive) any each Contract prohibiting or materially restricting the ability of any Transferred Entity to conduct its business, to engage in any business or operate in any geographical area or to compete with any Person;
(v) any Contract for any joint venture, strategic alliance, partnership or similar arrangement involving a sharing of profits or expenses or payments based on revenues, profits, or assets under management of any Affiliate of Parent or any Fund that is reasonably expected to account for revenue to the BGI Business in 2009 in excess of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be material to the Transferred Entities, taken as a whole;
(vi) any Contract relating to any Indebtedness of a Transferred Entity in an amount in excess of $5,000,000, other than: (A) any mortgage or similar Indebtedness secured by specific property owned by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closing;
(vii) any Contract (including any so-called take-or-pay or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any Transferred Entity in respect of the BGI Business that would reasonably be expected to be material to the Transferred Entities, taken as a whole, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person (other than any Transferred Entity) in each case in excess of $10,000,000;
(viii) any Contract that provides for earn-outs or other similar contingent obligations that would reasonably be expected to result in annual payments to or from a Transferred FH Company or any of its Closing Subsidiaries or an FH Affiliate (in 2009 respect of the FH Business) in excess of $5,000,000 2,000,000 (or morethe equivalent value in the applicable currency) over any consecutive 12-month period including the date hereof;
(ixf) each (A) consulting agreement (other than those that are terminable on no more than thirty (30) days’ prior notice and that provide for a termination fee of less than $50,000), (B) change of control, retention or severance agreement or arrangement or (C) employment agreement, in the case of each of clauses (A) and (C), which (x) provides for mandatory annual cash compensation in excess of $200,000 or (y) includes any bonus or other amount payable in connection with the transactions contemplated hereby;
(g) each Contract entered into since January 1, 2007 for the acquisition or disposition of a Person or a division FH Assets in excess of a Person, or for $1,000,000 over any consecutive 12-month period including the acquisition or sale of any assets date hereof (including Intellectual Property), properties, equity interests or rights, other than any such sale or acquisition sales of products in the ordinary course of business) or for the acquisition of the assets or business or of any such sale or acquisition that would not reasonably be expected to be material to the Transferred Entities, taken as a whole; and
(x) any BGI Affiliate Arrangement that will be in effect after the Closing.
(b) Seller has made available to Buyer prior to the date of this Agreement a complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity other Person in excess of $1,000,000 over any consecutive 12-month period including the date hereof (other than purchases of inventory or components in 2009 the ordinary course of business);
(h) each contract in which Seller or any of its Affiliates has granted “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to any products or territory or has agreed to purchase a minimum quantity of goods or services in excess of $1,000,000 or has agreed to purchase goods or services exclusively from a specified person (or group of persons);
(i) each Contract concerning the establishment or operation of a partnership, joint venture or similar enterprise;
(j) each Government Contract (other than purchase orders, sales orders, rebate agreements or invoices under such contracts entered into in the ordinary course of business);
(k) any settlement agreement or settlement-related agreement that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effect, and is valid and binding material ongoing restrictions on the operation of the FH Business (including any agreement in connection with which any employment-related claim is settled);
(l) any agency, distributor, sales representative, franchise or similar agreements with an agent, distributor, sales representative, franchisor or similar service provider outside of the United States that cannot be terminated by the applicable Transferred Entity that FH Company, Closing Subsidiary or FH Affiliate on less than 90 days’ notice without material Liability to such Person;
(m) each Contract (other than any Contract included in the Acquired FH Assets) that, following the Closing, would (or would purport to) entitle any third party to receive a license or any other right to Intellectual Property of Buyer or any of Buyer’s Affiliates (other than the Transferred FH Companies and the Closing Subsidiaries) following the Closing or otherwise would bind or purport to bind Buyer or any of Buyer’s Affiliates (other than any Transferred FH Company or any of its Closing Subsidiaries); and
(n) each letter of credit, bank guarantee, performance bond or similar instrument, in each case, in any amount in excess of $100,000 individually, issued for the benefit of any Transferred FH Company or Closing Subsidiary. Each such Material Contract is a party theretolegal, valid, binding and enforceable against Seller or its Affiliate, as applicable, and, to the Knowledge of Seller, on the other parties thereto in accordance with its terms, in each other party thereto. There exists no breach case, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or default of any Significant Contract on the part of any Transferred Entity which (with affecting creditors’ rights and to general equity principles, and is in full force and effect, except where such failure to be so valid, binding, enforceable or without notice or lapse of time or both) wouldin full force and effect would not, individually or in the aggregate, reasonably be expected to be material to the Transferred EntitiesFH Business, taken as a whole. No Transferred Entity has received Neither Seller nor any written notice of an intention to terminate, not to renew its Affiliates is in default under or to challenge the validity or enforceability in breach of any Significant Contract, the termination, failure to renew such Material Contract except for such defaults or challenge of which wouldbreaches as would not have, individually or in the aggregate, reasonably be expected to be material to the Transferred EntitiesFH Business, taken as a whole.
(c) As . To the Knowledge of the date hereofSeller, no Transferred Entity event has entered into and is bound by occurred which, after the giving of notice, with lapse of time, or subject to any of the following:
(i) other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practiceotherwise, any Contract providing for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000;
(ii) other than Contracts entered into in the ordinary course of business, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in constitute any such case would be material to the Transferred Entities, taken as a whole; or
(iii) other than Contracts entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital default or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individuallybreach.
(d) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard forms.
Appears in 2 contracts
Sources: Purchase Agreement (Circor International Inc), Purchase Agreement (Colfax CORP)
Contracts. (a) Except (x) for this Agreement, (y) for a Company Plan or the Company Share Plans and (z) as set forth in Section 4.13(a3.8(a) of the Seller’s Company Disclosure Schedules contains a complete and correct list Letter, neither the Company nor any of all of the following Contractsits subsidiaries is party to or bound by, in effect or has any property or asset bound by, any Contract, as of the date of this Agreement, to which a Transferred Entity is a party, is bound by or subject to, or pursuant to which the BGI Business is conducted (the “Specified Contracts”):that:
(i) any Contract for would be required to be filed by the placementCompany as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K of the Securities Act or disclosed by the Company on a Current Report on Form 8-K, distribution Annual Report on Form 10-K or sale of shares, units Quarterly Report on Form 10-Q that has not been filed or other ownership interests of a Fund that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity incorporated by reference in excess of $5,000,000 in 2009the SEC Reports;
(ii) contains any administration agreement or any other Contract for the provision of administrative services covenant that is reasonably expected to provide for payments to, or provide for payments from a Transferred Entity in 2009 in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or less;
(iii) any Contract, other than a Benefit and Compensation Arrangement, that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $10,000,000 in 2009;
(iv) any Contract prohibiting or materially restricting restricts the ability of any Transferred Entity to conduct its business, to engage in any business or operate in any geographical area or to compete with any Person;
(v) any Contract for any joint venture, strategic alliance, partnership or similar arrangement involving a sharing of profits or expenses or payments based on revenues, profits, or assets under management of any Affiliate of Parent the Company or any Fund that is reasonably expected to account for revenue to the BGI Business in 2009 in excess of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be material to the Transferred Entities, taken as a whole;
(vi) any Contract relating to any Indebtedness of a Transferred Entity in an amount in excess of $5,000,000, other than: (A) any mortgage or similar Indebtedness secured by specific property owned by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closing;
(vii) any Contract (including any so-called take-or-pay or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any Transferred Entity in respect of the BGI Business that would reasonably be expected to be material to the Transferred Entitiesits subsidiaries, taken as a whole, or to (A) engage in any business, (B) compete in any business or with any Person, (C) operate in any geographic area or (D) solicit or hire any employee or consultant other than pursuant to non-disclosure agreements entered into in the ordinary course of business;
(iii) is a Transferred Entity has joint venture, partnership, limited liability or other similar agreement or arrangement or Contract relating to the formation, creation, operation, management or control of any partnership, joint venture, limited liability company or other similar agreements or arrangements or Contracts;
(iv) is an indenture, credit agreement, loan agreement, security agreement, guarantee, bond, mortgage or other Contract (including any swap or hedge agreements) relating to indebtedness of the Company or any of its subsidiaries (for the avoidance of doubt, other than Contracts related to vault cash arrangements), in each case, in excess of $1,000,000;
(v) is a Contract related to vault cash arrangements with any financial institution;
(vi) is a settlement, conciliation or similar Contract with any Governmental Entity;
(vii) requires the Company or any of its subsidiaries, directly or indirectly guaranteed indirectly, to make any advance, loan, extension of credit or otherwise agreed to be responsible for Indebtedness capital contribution to, or liabilities of other investment in, any Person (other than the Company or any Transferred Entityof its wholly owned subsidiaries) in each any such case which is in excess of $10,000,000500,000;
(viii) prohibits the payment of dividends or distributions in respect of the share capital of the Company or any Contract that provides of its subsidiaries, prohibits the pledging of the share capital of the Company or any subsidiary of the Company or prohibits the issuance of guarantees by the Company or by any subsidiary of the Company;
(ix) (A) contains “most favored nation” pricing provisions which impose obligations on the Company or any of its subsidiaries with any third party, or (B) grants exclusive rights, rights of first refusal, rights of first negotiation or offer or similar rights to any Person other than the Company or any of its subsidiaries;
(x) has resulted in payments by the Company and its subsidiaries to vendors of more than $2,000,000 in the aggregate for the 12 month period ending June 30, 2020 (other than this Agreement, Contracts subject to clause (iv) above, purchase orders for the purchase of inventory and/or equipment in the ordinary course of business or Leases);
(xi) has given rise to aggregate revenue (including termination fees) by the Company and its subsidiaries under such Contract(s) of more than $2,000,000 during fiscal year 2019;
(xii) with respect to any acquisition and divestiture pursuant to which the Company or any of its subsidiaries has continuing indemnification, guarantee, “earn-outs out” or other similar contingent obligations payment obligations, in each case, that would reasonably be expected to result in annual payments in 2009 of $5,000,000 or more;
(ix) any Contract entered into since January 1, 2007 for the acquisition or disposition of a Person or a division of a Person, or for the acquisition or sale of any assets (including Intellectual Property), properties, equity interests or rights, other than any such sale or acquisition in the ordinary course of business or any such sale or acquisition that would not reasonably be expected to be material to the Transferred Entities, taken as a whole; and
(x) any BGI Affiliate Arrangement that will be in effect after the Closing.
(b) Seller has made available to Buyer prior to the date of this Agreement a complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity 2,000,000;
(xiii) involving the acquisition or disposition, directly or indirectly (iby merger or otherwise), (ii) and (iii) being the “Significant Contracts”) is in full force and effectof assets or share capital or other equity interests for aggregate consideration under such Contract of at least $1,000,000 individually, and is valid and binding on the Transferred Entity that is a party thereto, and, to the Knowledge of Seller, on each other party thereto. There exists no breach or default of any Significant Contract on the part of any Transferred Entity which (with or without notice or lapse of time or both) would, individually or $2,000,000 in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.;
(cxiv) As is between the Company or any of its subsidiaries, on the one hand, and any director or officer of the date hereof, no Transferred Entity has entered into and is bound by Company or subject to any Person beneficially owning five percent (5%) or more of the following:
(i) outstanding Company Shares, on the other than investment management hand, except for any Company Plan and distribution any Contracts entered into in the ordinary course of business consistent with past practice, any Contract providing for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000;
(ii) other than Contracts entered into on arm’s-length terms in the ordinary course of business;
(xv) requires a consent to or otherwise contains a provision relating to a “change of control” or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the Acquisition;
(xvi) involves the payment of royalties to, or receipt of royalties from, any type Person (other than the Company or any of Contract its subsidiaries) of more than $1,000,000 in the aggregate pursuant to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder a license that in any such case would be is material to the Transferred Entities, Company and its subsidiaries taken as a whole; or
(iiixvii) is a Contract pursuant to which any third party grants to the Company or any of its subsidiaries a license, right or covenant not to ▇▇▇ with respect to any Licensed Intellectual Property that is material to the Company and its subsidiaries taken as a whole (other than Contracts entered into in (1) intercompany licenses between the ordinary course Company and any of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Personits subsidiaries, (B2) to provide seed capital or similar investment licenses for Open Source Software or (C3) to invest in any investment product, in each case in an amount in excess of $5,000,000 individually.
(d) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 licenses for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract Software that is reasonably expected to provide generally commercially available on standard terms for payments to a Transferred Entity in excess less than $300,000 (based on the dollar value of $10,000,000 in 2009expenditures from fiscal year 2019)).
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard forms.
Appears in 2 contracts
Sources: Acquisition Agreement (NCR Corp), Acquisition Agreement (Cardtronics PLC)
Contracts. (a) Set forth in Section 4.13(a3.13(a) of to the Seller’s Company Disclosure Schedules contains Letter or filed as exhibits to the Company SEC Documents (filed since January 1, 2004), is a true and complete and correct list schedule listing of all of the following Contracts, in effect types of Contracts to which any of the Acquired Companies is a party or by which any of the Acquired Companies is bound as of the date of this AgreementAgreement (collectively, to which a Transferred Entity is a partythe "SPECIFIED CONTRACTS"), is bound by grouped into the following categories:
(i) Contracts with customers or subject to, or clients pursuant to which the BGI Business is conducted (customer or client pays the “Specified Contracts”):
(i) any Contract for the placement, distribution or sale of shares, units or other ownership interests of a Fund that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of Company an annual amount exceeding $5,000,000 in 2009250,000;
(ii) any administration agreement or any other Contract Contracts for the provision purchase, license, lease and/or maintenance of administrative services that is reasonably expected to provide for payments to, or provide for payments from a Transferred Entity in 2009 in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or lessany Software other than Commercially Available Software;
(iii) Contracts for the lease or sublease of Real Property owned or used by any Contract, other than a Benefit and Compensation Arrangement, that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $10,000,000 in 2009the Acquired Companies;
(iv) any Contract prohibiting or materially restricting the ability of any Transferred Entity to conduct its businessloan agreements, to engage in any business or operate in any geographical area or to compete with any Personmortgages, notes, and guarantees;
(v) any Contract for any joint venture, strategic alliance, partnership or similar arrangement involving a sharing of profits or expenses or Contracts that obligate the Company to make payments based on revenues, profits, or assets under management of any Affiliate of Parent or any Fund that is reasonably expected to account for revenue to the BGI Business in 2009 in excess of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be material to the Transferred Entities, taken as a wholeresult of the transactions contemplated herein that are contingent on a "change in ownership or control," within the meaning of Section 280G of the Code;
(vi) any Contract relating and any amendment thereto required to be filed , or filed, as an exhibit to any Indebtedness report of a Transferred Entity the Company (whether annual, quarterly or interim) filed pursuant to the Exchange Act of the type described in an amount in excess Item 601(b)(10) of $5,000,000Regulation S-K of the Securities Act entered into by the Company or any of its Subsidiaries since and including January 1, other than: (A) any mortgage or similar Indebtedness secured by specific property owned by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closing2003;
(vii) any Contract (including any so-called take-or-pay or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtednessjoint venture, liabilities or obligations of any Transferred Entity in respect of the BGI Business that would reasonably be expected to be material to the Transferred Entities, taken as a whole, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person (other than any Transferred Entity) in each case in excess of $10,000,000partnership and similar agreement;
(viii) any Contract Contracts that provides for earn-outs or other similar contingent obligations that would reasonably be expected to result in annual payments in 2009 of $5,000,000 or more;
(ix) any Contract entered into since January 1, 2007 for the acquisition or disposition are not cancelable within 60 days without payment of a Person material (with respect to such contract) amount of money that, after the Effective Time, would have the effect of limiting the freedom of the Company or a division any of a Person, its Subsidiaries to compete in any line of business in any geographic area or for the acquisition to hire any individual or sale group of any assets (including Intellectual Property), properties, equity interests or rightsindividuals, other than any such sale or acquisition in the ordinary course of business or any such sale or acquisition that would not reasonably be expected to be material covenants relating to the Transferred Entities, taken as a whole; and
(x) any BGI Affiliate Arrangement that will be non-solicitation or non-hiring of client personnel contained in effect after the Closing.
(b) Seller has made available to Buyer prior to the date of this Agreement a complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effect, and is valid and binding on the Transferred Entity that is a party thereto, and, to the Knowledge of Seller, on each other party thereto. There exists no breach or default of any Significant Contract on the part of any Transferred Entity which (with or without notice or lapse of time or both) would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.
(c) As of the date hereof, no Transferred Entity has entered into and is bound by or subject to any of the following:
(i) other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practice, any Contract providing for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000;
(ii) other than client Contracts entered into in the ordinary course of business, any type of Contract to cap fees, share fees ; EXECUTION VERSION
(ix) Contracts providing for "earn-outs," "savings guarantees," "performance guarantees," or other paymentscontingent payments by the Company or any of its Subsidiaries involving more than $250,000 over the term of such Contract;
(x) Contracts with or for the benefit of any of any Related Party of any Acquired Company other than those disclosed in the "Management Compensation" or "Certain Relationships and Related Transactions" sections of the Company's definitive proxy statement filed with the SEC on April 28, share expenses, waive fees 2004;
(xi) Contracts that provide for the indemnification of any officer or to reimburse or assume director of any or all fees or expenses thereunder that in any such case would be material Acquired Company;
(xii) Contracts relating to the Transferred Entitiesacquisition, taken as a wholetransfer, development, sharing or licensing of any Intellectual Property by any Acquired Company; orand
(iiixiii) other than Contracts entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount that requires payments in excess of $5,000,000 individually100,000 per year.
(db) Notwithstanding anything The Company has provided Parent true, correct and complete copies of all Specified Contracts. With respect to each of the Contracts to which any of the Acquired Companies is a party or is bound, none of the Acquired Companies is in default thereunder, nor would be in default thereunder with the passage of time, the giving of notice, or both, and, to the contrary contained in this AgreementCompany's knowledge, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) none of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue other parties to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess default thereunder or would be in default thereunder with the passage of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy time, the giving of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contractsnotice or both, except in each case provided for those defaults which, individually or in the aggregate, would not reasonably be expected to certain funds and clients have a Material Adverse Effect. Each Contract to which any of the securities lending Acquired Companies is a party or short-term cash businesses is bound, is in full force and effect in accordance with its terms, except where the failure of any or all of such Contracts to be in full force and effect, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect. No party to any Specified Contract to which any of the BGI BusinessAcquired Companies is a party or is bound has made or threatened any claims or demands in writing against any Acquired Company for cancellation, and none termination or modification of the Contracts used by subcontracts or for other remedies or relief. Neither the Transferred Entities for such purposes materially deviates from such standard formsCompany nor any of its Subsidiaries have assigned or otherwise conveyed or transferred, or agreed to assign, convey or transfer to any Person, any right, title or interest in or to any of the Specified Contracts, or any account receivable relating thereto, whether as a security interest or otherwise.
Appears in 2 contracts
Sources: Merger Agreement (Superior Consultant Holdings Corp), Merger Agreement (Affiliated Computer Services Inc)
Contracts. (a) Except for Contracts previously filed with the SEC and Parent Plans, Section 4.13(a) 4.18 of the Seller’s Parent Disclosure Schedules contains Letter identifies each Contract that constitutes a Parent Material Contract (as defined below) (other than Parent Material Contracts described in (a)(ii) below), an accurate and complete and correct list copy of all which (other than Parent Material Contracts described in (a)(ii) below) has been provided or made available to the Company by Parent on the Datasite. For purposes of this Agreement, each of the following Contracts, in effect Contracts that is unexpired and effective as of the date of this Agreement, Agreement and under which Parent or any of its Subsidiaries has ongoing rights or obligations will be deemed to which constitute a Transferred Entity is a party, is bound by or subject to, or pursuant to which the BGI Business is conducted (the “Specified ContractsParent Material Contract”)::
(i) any Contract for the placement, distribution or sale of shares, units or other ownership interests of a Fund that is reasonably expected or would be required to provide for payments to, be filed by the Company as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act or provide for payments from, disclosed by the Company on a Transferred Entity in excess of $5,000,000 in 2009Current Report on Form 8-K;
(ii) any administration agreement Contract that, by its terms, requires payments by Parent or any other Contract for the provision of administrative services that is reasonably expected to provide for payments to, or provide for payments from a Transferred Entity in 2009 its Subsidiaries in excess of $10,000,000 300,000 in the aggregate for the remainder of the stated term of such Contract, other than those that are terminable by Parent or any of its Subsidiaries on no more than ninety (90) days’ notice and by without liability or financial obligation to Parent or any of its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or lessSubsidiaries;
(iii) any Contractmortgages, indentures, guarantees, loans, credit agreements, security agreements or other than a Benefit and Compensation ArrangementContracts relating to the borrowing of money or extension of credit, that is reasonably expected to provide for payments toin each case, or provide for payments from, a Transferred Entity in excess of $10,000,000 300,000, other than (A) accounts receivables and payables, and (B) loans to, or guarantees for, direct or indirect wholly-owned Subsidiaries of Parent, in 2009each case, in the ordinary course of business consistent with past practice;
(iv) any Contract prohibiting limiting, in any respect, the freedom of Parent or materially restricting the ability any of any Transferred Entity to conduct its business, Subsidiaries to engage in any business or operate in any geographical area participate, or to compete with any other Person, in the business conducted by Parent and its Subsidiaries as of the date of this Agreement in any market or geographic area, or to make use of any material Intellectual Property owned by Parent or any of its Subsidiaries;
(v) (A) any Contract for any joint venture, strategic alliance, partnership or similar arrangement involving a sharing of profits or expenses or payments based on revenues, profits, or assets under management of any Affiliate of pursuant to which Parent or any Fund of its Subsidiaries is the lessee or lessor of, or holds, uses, or makes available for use to any Person (other than Parent or a Subsidiary thereof) any real property that is reasonably expected to account for revenue to by the BGI Business in 2009 Contract’s terms requires payment or receipt of payment, as the case may be, in excess of $10,000,000 on an annual 300,000, and (B) any executory Contract for the sale or annualized) basis or that would reasonably be expected to be material to the Transferred Entities, taken as a wholepurchase of any real property;
(vi) any Contract relating with any of Parent’s or any of its Subsidiaries’ officers, directors, employees, principal stockholders or Persons who, to the knowledge of Parent, are controlled thereby, or, to the knowledge of Parent, any Indebtedness member of a Transferred Entity in an amount in excess of $5,000,000such Persons’ immediate families, other than: than (A) any mortgage written employment, consulting or similar Indebtedness secured by specific property owned by management services agreement or on behalf of a Client; other compensation or benefit plan with Parent, or (B) any Indebtedness solely between Transferred Entities; Parent’s or (C) any Indebtedness for which no Transferred Entity will be liable following the Closingits Subsidiaries’ written employee policies and procedures;
(vii) any Contract (including pursuant to which any so-called take-or-pay third Person is licensed to use any Intellectual Property owned by Parent or keep well agreements) under any of its Subsidiaries, and all Contracts pursuant to which (A) Parent or any Person has directly or indirectly guaranteed or assumed Indebtednessof its Subsidiaries is licensed to use any Intellectual Property, liabilities or obligations of any Transferred Entity in respect of the BGI Business that would reasonably be expected to be material to the Transferred Entities, taken as a whole, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person (other than Contracts for commercially available off-the-shelf Software licensed to Parent or any Transferred Entity) in each case of its Subsidiaries for an amount not in excess of $10,000,000300,000 in any case over the term of the applicable Contract;
(viii) any Contract that provides for earn-outs or other similar contingent obligations that would reasonably be expected to result in annual payments in 2009 of $5,000,000 or more;with any labor union; or
(ix) any Contract entered into since January 1, 2007 for the acquisition or disposition obligating Parent to manage any gaming assets on behalf of a Person or a division of a Person, or for the acquisition or sale of any assets (including Intellectual Property), properties, equity interests or rights, other than any such sale or acquisition in the ordinary course of business or any such sale or acquisition that would not reasonably be expected to be material to the Transferred Entities, taken as a whole; and
(x) any BGI Affiliate Arrangement that will be in effect after the Closingan unrelated third party.
(b) Seller has made available to Buyer prior to the date of this Agreement a complete Each Parent Material Contract is valid and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effect, and is valid enforceable against Parent and binding on the Transferred Entity that is a party thereto, its Subsidiaries (and, to the Knowledge knowledge of SellerParent, on is enforceable against each other party thereto. There exists no breach ) in accordance with its terms, except to the extent that such Parent Material Contract has previously expired in accordance with their terms, or default of any Significant Contract on if the part of any Transferred Entity which (with or without notice or lapse of time or both) wouldfailure to be in full force and effect would not, individually or in the aggregate, reasonably be expected to be material to have a Material Adverse Effect on the Transferred Entitiesoperations or business of Parent and its Subsidiaries, taken as a whole. No Transferred Entity , and subject in all cases to: (i) Laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) Laws governing specific performance, injunctive relief and other equitable remedies.
(i) Neither Parent nor its Subsidiaries has materially violated or materially breached, or committed any default under, any Parent Material Contract; (ii) to the knowledge of Parent, no other Person has materially violated or materially breached, or committed any default under, any Parent Material Contract; and (iii) neither Parent nor its Subsidiaries has received any written notice of an intention to terminateor, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entitiesknowledge of Parent, taken as a whole.
(c) As of the date hereofother communication regarding any actual or possible material violation or material breach of, no Transferred Entity has entered into and is bound by or subject to any of the following:
(i) other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practicedefault under, any Contract providing for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000;
(ii) other than Contracts entered into in the ordinary course of business, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a whole; or
(iii) other than Contracts entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individuallyParent Material Contract.
(d) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard forms.
Appears in 2 contracts
Sources: Merger Agreement (Isle of Capri Casinos Inc), Merger Agreement (Eldorado Resorts, Inc.)
Contracts. (a) Section 4.13(aSet forth in EXHIBIT 3.12(A) of the Seller’s Disclosure Schedules contains is a complete and correct list of all of the following Contracts(collectively, "MATERIAL CONTRACTS", which term when used elsewhere in effect as of this Agreement applies to clause (i) below with respect to leases and other contracts entered into prior to the date of this Agreement, hereof without regard to which a Transferred Entity is a party, is bound by or subject to, or pursuant to which the BGI Business is conducted (the “Specified Contracts”date limitation set forth therein):
(i) any Contract for the placement, distribution or sale of shares, units leases or other ownership interests contracts entered into prior to July 30, 1999, involving obligations on the part of any Group Company to pay to any party other than a Fund that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity Group Company in excess of US$500,000 (or $5,000,000 1,000,000, in 2009the case of leases or contracts entered into after July 8, 1999) in the aggregate (it being understood that individual purchase orders placed in the ordinary course of business shall not be considered "contracts" for this purpose, although master agreements covering multiple purchase orders shall be considered "contracts");
(ii) contracts under which the Group Companies are forecast to receive revenues in any administration agreement or any years (other Contract than prepaid revenues) that represent more than one percent (1%) of the forecast consolidated revenues of the Group Companies for 1999, in each case as set forth in the provision of administrative services that is reasonably expected to provide for payments to, or provide for payments from a Transferred Entity in 2009 in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or lessCompany's most recent business plan;
(iii) credit or finance lease agreements, guarantees or security agreements to which any Contract, other than of the Group Companies is a Benefit and Compensation Arrangement, that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $10,000,000 in 2009party;
(iv) contracts or other agreements between any Contract prohibiting of the Group Companies and any of its officers (which term shall, in this Agreement, refer in particular to PRESIDENT-DIRECTEUR GENERAL, PRESIDENT DU DIRECTOIRE, GERANT, DIRECTEUR GENERAL, DIRECTEUR GENERAL ADJOINT, SECRETAIRE GENERAL, DIRECTEUR FINANCIER, DIRECTEUR COMMERCIAL, DIRECTEUR TECHNIQUE and other individuals having the same level of responsibility) or materially restricting the ability directors (which term shall, in this Agreement, refer in particular to any ADMINISTRATEUR, or MEMBRE DU CONSEIL DE SURVEILLANCE or MEMBRE DU DIRECTOIRE), or members of their respective families, or any shareholder of any Transferred Entity to conduct of the Group Companies (other than the constitutive documents of the entities listed in EXHIBIT 3.4(B)) or its businessor their officers or directors, to engage in any business or operate in any geographical area or to compete with any Personmembers of their respective families;
(v) any Contract for any joint venture, strategic alliance, partnership venture or similar arrangement joint bidding agreements or other contracts involving a the sharing of profits or expenses or payments based on revenues, profits, losses, costs or assets under management liabilities (other than the constitutive documents of any Affiliate of Parent or any Fund that is reasonably expected to account for revenue to the BGI Business entities listed in 2009 in excess of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be material to the Transferred Entities, taken as a wholeEXHIBIT 3.4);
(vi) contracts with any Contract relating agents or representatives entitling any third party to remuneration with respect to any Indebtedness of a Transferred Entity in an amount in excess the present and/or future business activities of $5,000,000, other than: (A) any mortgage or similar Indebtedness secured by specific property owned by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the ClosingGroup Company;
(vii) any Contract (including collective bargaining or similar agreement to or with any so-called take-or-pay labor union or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations other employee representative of a group of employees of any Transferred Entity in respect of the BGI Business that would reasonably be expected Group Companies entered into prior to be material to the Transferred EntitiesJuly 8, taken as a whole1999, or (B) implementing French legal requirements imposing a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person (other than any Transferred Entity) in each case in excess of $10,000,000;35-hour work week; and
(viii) any power of attorney currently effective (other than powers of attorney held by employees of the Group Companies) granted prior to July 8, 1999.
(b) Except as set forth in EXHIBIT 3.12(B), none of the Group Companies is in default under any of the Material Contracts as a result of which another party thereto has the right to terminate any such Material Contract that provides for earn-outs before the stated expiration of its term or other similar contingent obligations that would which could reasonably be expected to result in annual payments material damages; no Group Company has notified the other party to any Material Contract in 2009 writing of $5,000,000 a material breach of such other party's obligations thereunder; and the Seller has not received written notice of existing circumstances likely to give rise to a default by any Group Company or more;
(ix) by the other parties under any such Material Contract entered into since January 1, 2007 such as to constitute grounds for the acquisition invalidity, avoidance or disposition repudiation of a Person or a division of a Person, or for the acquisition or sale of any assets (including Intellectual Property), properties, equity interests or rights, other than any such sale or acquisition in the ordinary course of business or any such sale or acquisition that would not reasonably be expected to be material to the Transferred Entities, taken as a whole; and
(x) any BGI Affiliate Arrangement that will be in effect after the Closing.
(b) Seller has made available to Buyer prior to the date of this Agreement a complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Material Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Material Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effecteffect and true and correct copies thereof have been made available to the Purchaser. Except as set forth in EXHIBIT 3.12(B), and is valid and binding on the Transferred Entity that no Group Company is a party theretoto or subject to any agreement, and, to obligation or liability which is a guarantee or an indemnity by any such Group Company in respect of the Knowledge obligations of Seller, on each other a third party thereto. There exists no breach which is not a Group Company under which any liability or default of any Significant Contract on the part of any Transferred Entity which (with or without notice or lapse of time or both) would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a wholecontingent liability is outstanding.
(c) As No Group Company is a party to any agreement which can be terminated or which would be breached by the consummation of the date hereof, no Transferred Entity has entered into and is bound by or subject to any of the following:
(i) other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practice, any Contract providing for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000;
(ii) other than Contracts entered into in the ordinary course of business, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a whole; or
(iii) other than Contracts entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individuallytransactions contemplated herein.
(d) Notwithstanding anything Except as expressly set forth above, the Seller makes no representation and gives no warranty with respect to the contrary contained Material Contracts. Without limiting the generality of the foregoing and without limiting in this Agreementany way the provisions of Section 3.7, the Seller makes no representation and gives no warranty as to the profitability (present or future) of any of the contracts of the Group Companies, including without limitation those described in no event shall Specified Contracts include any Investment Advisory Arrangementsubsection (a)(ii).
(e) Attached as Section 4.13(eSet forth in EXHIBIT 3.12(E) is a list of all contracts to which any of the Seller’s Disclosure Schedules Group Companies is a description of any “most favored nation” provision in any Investment Advisory Arrangement party which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 contain provisions providing for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangementsnon-compete and/or exclusivity arrangements.
(f) Attached Except as Section 4.13(f) contemplated with the Purchaser under the terms of this Agreement, neither the Seller nor any of the Seller’s Disclosure Schedules is 's affiliates are bound under or a description party to any contract or other agreement (i) regarding the consolidation or merger of any “key person” provision pertaining to employees of the Group Companies with or into any such person or persons (ii) regarding the sale, conveyance or disposition of all or substantially all or a Transferred Entity large portion of the assets of any of the Group Companies or a transaction or series of related transactions in which any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess voting securities of $10,000,000 in 2009any the Group Companies would be issued, transferred or disposed of, or (iii) regarding any other form of acquisition, liquidation, dissolution or winding up of any of the Group Companies.
(g) The Share Purchase Agreement dated August 2, 1999 between the Seller has made available and Global Industries Ltd. is the only agreement with continuing obligations relating to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard formssubject matter thereof.
Appears in 2 contracts
Sources: Share Purchase Agreement (Stolt Nielsen S A), Share Purchase Agreement (Stolt Offshore S A)
Contracts. (a) Section 4.13(a) 3.16 of the Seller’s Burro Disclosure Schedules contains a complete and correct list Letter lists, as of all the Execution Date, each Contract of the following Contracts, in effect as of the date of this Agreement, types (excluding any Burro Plan) to which a Transferred any Burro Group Entity is a party, party or by which any of their respective properties or assets is bound by or subject to, or pursuant to which the BGI Business is conducted (the “Specified Contracts”):bound;
(i) any Contract for that would be required to be filed by the placement, distribution Partnership as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or sale of shares, units or other ownership interests of disclosed by the Partnership on a Fund that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $5,000,000 in 2009Current Report on Form 8-K;
(ii) any administration agreement Contract that limits the ability of any Burro Group Entity (or, following the consummation of the Mergers and the other transactions contemplated by this Agreement, would limit the ability of Kick or any other Contract for the provision of administrative services that is reasonably expected its Subsidiaries, including any Surviving Entity) to provide for payments tocompete in any line of business or with any Person or in any geographic area, or provide for payments that restricts the right of any Burro Group Entity (or, following the consummation of the Mergers and the other transactions contemplated by this Agreement, would restrict the right of Kick or any of its Subsidiaries, including any Surviving Entity) to sell to or purchase from a Transferred Entity in 2009 in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days any Person, to solicit any business from any Person, or lessto hire any Person;
(iii) any ContractContract that contains any “most favored nation” or most favored customer provision, call or put option, preferential right or rights of first or last offer, negotiation or refusal, in each case other than a Benefit and Compensation Arrangement, that those contained in any Contract in which such provision is reasonably expected to provide solely for payments to, or provide for payments from, a Transferred Entity in excess the benefit of $10,000,000 in 2009any Burro Group Entity;
(iv) any Contract prohibiting that provides for the formation, creation, operation, management or materially restricting the ability control of any Transferred Entity to conduct its businessmaterial joint venture, to engage in any business partnership, strategic alliance, collaboration or operate in any geographical area other similar arrangement with a third party partnership, joint venture or to compete with any Personlimited liability company agreement;
(v) any Contract for any joint venture, strategic alliance, partnership or similar arrangement involving a sharing of profits or expenses or payments based on revenues, profits, or assets under management of any Affiliate of Parent or any Fund that is reasonably expected relating to account for revenue to the BGI Business in 2009 Indebtedness and having an outstanding principal amount in excess of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be material to the Transferred Entities, taken as a whole150,000;
(vi) any Contract relating involving the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests for aggregate consideration (in one or a series of transactions) under such Contract of $150,000 or more;
(vii) any Contract that contains a put, call or similar right pursuant to which any Indebtedness Burro Group Entity could be required to sell, as applicable, any equity interests of a Transferred any Person or material amount of assets;
(viii) any Contract for the lease of personal property or Burro Leased Real Property involving aggregate payments in excess of $400,000 in any calendar year that is not terminable by the applicable Burro Group Entity party thereto without penalty within 60 days;
(ix) any Contract that requires any Burro Group Entity to make annual expenditures in excess of $3,000,000 or aggregate payments in excess of $5,000,000 during the 12-month period following the Execution Date;
(x) any Contract that by its terms calls for aggregate payment or receipt by any Burro Group Entity under such Contract of more than $5,000,000 over the remaining term of such Contract;
(xi) any Contract pursuant to which any Burro Group Entity has continuing indemnification, guarantee, “earn-out” or other contingent payment obligations, in each case that could result in payments in excess of $150,000;
(xii) any Contract that provides for any standstill or similar obligations;
(xiii) any Contract that obligates any Burro Group Entity to make any capital commitment, loan or expenditure in an amount in excess of $5,000,000, other than: (A) any mortgage or similar Indebtedness secured by specific property owned by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closing;
(viixiv) any Contract (including that requires a consent to or otherwise contains a provision relating to a “change of control,” that is binding upon the any so-called take-or-pay Burro Group Entity party thereto or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any Transferred Entity in respect of the BGI Business that would reasonably be expected to be material to prevent, materially delay or materially impede the Transferred Entitiesconsummation of the transactions contemplated by this Agreement;
(xv) any Contract that provides any current employees, taken as a wholeofficers or directors of any Burro Group Entity with annual base compensation in excess of $175,000, other than (A) Contracts that are terminable without penalty, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person (other than any Transferred Entity) in each case in excess of $10,000,000employment Contracts;
(viiixvi) any Contract that provides for earn-outs to which any Burro Group Entity is a party, or is otherwise bound, relating to any material currency or other similar contingent obligations that would reasonably be expected to result in annual payments in 2009 of $5,000,000 or more;hedging arrangement; or
(ixxvii) any Contract entered into since January 1, 2007 for the acquisition or disposition outside of a Person or a division of a Person, or for the acquisition or sale of any assets (including Intellectual Property), properties, equity interests or rights, other than any such sale or acquisition in the ordinary course of business business, pursuant to which any Burro Group Entity is a party, or any such sale or acquisition that would not reasonably be expected to be material to is otherwise bound, and the Transferred Entities, taken as contracting counterparty of which is a whole; and
(x) any BGI Affiliate Arrangement that will be in effect after Governmental Entity. Each contract of the Closing.
(b) Seller has made available to Buyer prior to the date of this Agreement a complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as type described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each clauses (i) Specified through (xvii) is referred to herein as a “Burro Material Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity (.”
(i), (ii) and (iii) being the “Significant Contracts”) is in full force and effect, and Each Burro Material Contract is valid and binding on the Transferred Burro Group Entity that is a party thereto, thereto and, to the Knowledge knowledge of Sellerthe Partnership, on each other party thereto. There exists , and is in full force and effect and enforceable in accordance with its terms, except as such enforcement may be limited by the Enforceability Exceptions; (ii) such Burro Group Entity and, to the knowledge of the Partnership, each other party thereto has performed all obligations required to be performed by it under each Burro Material Contract; and (iii) there is no breach default under any Burro Material Contract by such Burro Group Entity or, to the knowledge of the Partnership, any other party thereto, and no event or default of any Significant Contract on the part of any Transferred Entity which (with or without condition has occurred that constitutes, or, after notice or lapse of time or both) would, would constitute, a default on the part of such Burro Group Entity or, to the knowledge of the Partnership, any other party thereto under any such Burro Material Contract, nor has such Burro Group Entity received any notice of any such default, event or condition, in each case, except as would not reasonably be expected to have, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a wholeBurro Material Adverse Effect. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.
(c) As of the date hereof, no Transferred Entity has entered into and is bound by or subject to any of the following:
(i) other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practice, any Contract providing for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000;
(ii) other than Contracts entered into in the ordinary course of business, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a whole; or
(iii) other than Contracts entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individually.
(d) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller The Partnership has made available to Buyer a Kick true and complete copy copies of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support all Burro Material Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard formsincluding all amendments thereto.
Appears in 2 contracts
Sources: Merger Agreement (CSI Compressco LP), Merger Agreement (CSI Compressco LP)
Contracts. (a) Section 4.13(a) of Neither the Seller’s Disclosure Schedules contains a complete and correct list of all of the following Contracts, in effect as of the date of this Agreement, to which a Transferred Entity Company nor any Company Subsidiary is a party, is party to or bound by or subject to, or pursuant to which the BGI Business is conducted (the “Specified Contracts”):any:
(i) any Contract for the placement, distribution employment agreement or sale of shares, units or other ownership interests of a Fund that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $5,000,000 in 2009employment contract;
(ii) any administration agreement covenant not to compete or other covenant restricting the business or operations of the Company or any other Contract for the provision of administrative services that is reasonably expected to provide for payments to, or provide for payments from a Transferred Entity in 2009 in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or lessCompany Subsidiary;
(iii) Contract with any Contract, officer or director of the Company (other than a Benefit and Compensation Arrangement, that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $10,000,000 in 2009employment agreements covered by clause (i) above);
(iv) Contract under which the Company or a Company Subsidiary has borrowed or agreed to borrow any Contract prohibiting money from, or materially restricting 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 ability of any Transferred Entity to conduct its business, to engage Company or a Company Subsidiary in any business or operate such case which, individually, is in any geographical area or to compete with any Personexcess of $1,000,000;
(v) any Contract for any joint venture, strategic alliance, partnership or similar arrangement involving a sharing of profits or expenses or payments based on revenues, profits, or assets under management of any Affiliate of Parent or any Fund that is reasonably expected to account for revenue to the BGI Business in 2009 in excess of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be material to the Transferred Entities, taken as a whole;
(vi) any Contract relating to any Indebtedness of a Transferred Entity in an amount in excess of $5,000,000, other than: (A) any mortgage or similar Indebtedness secured by specific property owned by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closing;
(vii) any Contract (including any so-called take-or-pay or keep well keepwell agreements) under which (A) any Person person including the Company or a Company Subsidiary, has directly or indirectly guaranteed indebtedness, liabilities or assumed Indebtednessobligations of the Company or a Company Subsidiary in excess of $1,000,000 or (B) the Company or a Company Subsidiary has directly or indirectly guaranteed indebtedness, liabilities or obligations of any Transferred Entity person, including the Company or another Company Subsidiary, in respect excess of $1,000,000 (in each case other than endorsements for the BGI Business that would reasonably be expected to be material to purpose of collection in the Transferred Entitiesordinary course of business);
(vi) Contract under which the Company or a Company Subsidiary has, taken as a wholedirectly or indirectly, made any advance, loan, extension of credit or capital contribution to, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities other investment in, any person in excess of any Person $1,000,000 (other than the Company or a Company Subsidiary and other than extensions of trade credit in the ordinary course of business);
(vii) Contract granting a Lien upon any Transferred Entity) Company Property or any other asset of the Company or any Company Subsidiary securing indebtedness or other obligations, in each case in excess of $10,000,0001,000,000;
(viii) Contract providing for indemnification of any Contract that provides for earn-outs or other similar contingent obligations that would reasonably be expected to result person in annual payments in 2009 excess of $5,000,000 1,000,000 with respect to material liabilities relating to any current or moreformer business of the Company, a Company Subsidiary or any predecessor person;
(ix) any a Contract entered into since January 1, 2007 for the acquisition or disposition of a Person or a division of a Person, or for the acquisition or sale of any assets (including Intellectual Property), properties, equity interests or rights, other than any such sale or acquisition not made in the ordinary course of business in which the amount involved exceeds $1,000,000;
(A) a Contract with a Governmental Entity in which the amount involved exceeds $1,000,000 and (B) a material license or permit by or from any Governmental Entity;
(xi) currency exchange, interest rate exchange, commodity exchange or similar Contract;
(xii) a Contract for any joint venture, partnership or similar arrangement;
(xiii) a lease, sublease or similar agreement with respect to Company Property in which the amount involved exceeds $1,000,000;
(xiv) a Contract under which the Company or a Company Subsidiary has agreed to purchase or lease any real property or any such sale interest in real property for a purchase price in excess of $1,000,000 or acquisition an annual rental in excess of $1,000,000 or to construct any improvements on real property or a leasehold interest in real property for a contract sum in excess of $1,000,000; or
(xv) a Contract other than as set forth above to which the Company or a Company Subsidiary is a party or by which it or any of its assets or businesses is bound or subject that would not reasonably be expected to be is material to the Transferred Entities, taken as a whole; and
(x) any BGI Affiliate Arrangement that will be business of the Company and the Company Subsidiaries or the use or operation of their assets and in effect after which the Closingamount involved exceeds $10,000,000.
(b) Seller has made available All Contracts required to Buyer prior be listed in the Company Disclosure Letter (the "Company Contracts") are valid, binding and enforceable against the Company or the applicable Company Subsidiary in accordance with their respective terms and, to the date knowledge of this Agreement a complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contractthe Company, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is are in full force and effecteffect in all material respects. The Company or the applicable Company Subsidiary has performed all material obligations required to be performed by it to date under the Company Contracts, and it is valid and binding on not (with or without the Transferred Entity that is a party theretolapse of time or the giving of notice, or both) in breach or default in any material respect thereunder and, to the Knowledge knowledge of Sellerthe Company, on each no other party thereto. There exists no breach or default of to any Significant Company Contract on the part of any Transferred Entity which is (with or without notice or the lapse of time or the giving of notice, or both) would, individually in breach or default in any material respect thereunder. None of the aggregate, reasonably be expected to be material to Company and the Transferred Entities, taken as a whole. No Transferred Entity Company Subsidiaries has received any written notice of an the intention to terminate, not to renew or to challenge the validity or enforceability of any Significant party to terminate any Company Contract, the terminationand no party has, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.
(c) As knowledge of the date hereof, no Transferred Entity has entered into and is bound by or subject to any of the following:
(i) other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practiceCompany, any Contract providing for the indemnification such intention. Complete and correct copies of any Person all Company Contracts, together with respect to liabilitiesall modifications and amendments thereto, whether absolute, accrued, contingent have been previously delivered or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000;
(ii) other than Contracts entered into in the ordinary course of business, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a whole; or
(iii) other than Contracts entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individually.
(d) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard formsParent.
Appears in 2 contracts
Sources: Stockholders Agreement (Boyd Gaming Corp), Stockholders Agreement (Boyd Gaming Corp)
Contracts. (a) Except for Contracts previously filed with the SEC and Company Plans, Section 4.13(a) 3.18 of the Seller’s Company Disclosure Schedules contains Letter identifies each note, bond, mortgage, indenture, contract, agreement, lease, license, permit or other instrument or obligation (each, a “Contract”) that constitutes a Company Material Contract (as defined below) (other than Company Material Contracts described in (a)(ii) below), an accurate and complete and correct list copy of all each of which (other than Company Material Contracts described in (a)(ii) below) has been provided or made available to Parent by the Company on the Datasite. For purposes of this Agreement, each of the following Contracts, in effect Contracts that is unexpired and effective as of the date of this Agreement, to which a Transferred Entity is a party, is bound by or subject to, or pursuant to Agreement and under which the BGI Business is conducted (the Company or any of its Subsidiaries has ongoing rights or obligations will be deemed to constitute a “Specified ContractsCompany Material Contract”)::
(i) any Contract for the placement, distribution or sale of shares, units or other ownership interests of a Fund that is reasonably expected or would be required to provide for payments to, be filed by the Company as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act or provide for payments from, disclosed by the Company on a Transferred Entity in excess of $5,000,000 in 2009Current Report on Form 8-K;
(ii) any administration agreement Contract that, by its terms, requires payments by the Company or any other Contract for the provision of administrative services that is reasonably expected to provide for payments to, or provide for payments from a Transferred Entity in 2009 its Subsidiaries in excess of $10,000,000 300,000 in the aggregate for the remainder of the stated term of such Contract, other than those that are terminable by the Company or any of its Subsidiaries on no more than ninety (90) days’ notice and by without liability or financial obligation to the Company or any of its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or lessSubsidiaries;
(iii) any Contractmortgages, indentures, guarantees, loans, credit agreements, security agreements or other than a Benefit and Compensation ArrangementContracts relating to the borrowing of money or extension of credit, that is reasonably expected to provide for payments toin each case, or provide for payments from, a Transferred Entity in excess of $10,000,000 300,000, other than (A) accounts receivables and payables, and (B) loans to or guarantees for direct or indirect wholly owned Subsidiaries of the Company, in 2009each case, in the ordinary course of business consistent with past practice;
(iv) any Contract prohibiting limiting, in any respect, the freedom of the Company or materially restricting the ability any of any Transferred Entity to conduct its business, Subsidiaries to engage in any business or operate in any geographical area participate, or to compete with any other Person, in the Business in any market or geographic area, or to make use of any material Intellectual Property owned by the Company or any of its Subsidiaries;
(v) (A) any Contract for pursuant to which the Company or any joint venture, strategic alliance, partnership of its Subsidiaries is the lessee or similar arrangement involving a sharing of profits or expenses or payments based on revenues, profitslessor of, or assets under management holds, uses, or makes available for use to any Person (other than the Company or a Subsidiary thereof) any real property that by the Contract’s terms requires payment or receipt of any Affiliate of Parent or any Fund that is reasonably expected to account for revenue to payment, as the BGI Business in 2009 case may be, in excess of $10,000,000 on an annual 300,000, and (B) any executory Contract for the sale or annualized) basis or that would reasonably be expected to be material to the Transferred Entities, taken as a wholepurchase of any real property;
(vi) any Contract relating with any of the Company’s or any of its Subsidiaries’ officers, directors, employees, principal stockholders or Persons who, to the knowledge of the Company, are controlled thereby, or, to the knowledge of the Company, any Indebtedness member of a Transferred Entity in an amount in excess of $5,000,000such Persons’ immediate families, other than: than (A) any mortgage written employment, consulting or similar Indebtedness secured by specific property owned by management services agreement or on behalf of a Client; other compensation or benefit plan with the Company, or (B) any Indebtedness solely between Transferred Entities; the Company’s or (C) any Indebtedness for which no Transferred Entity will be liable following the Closingits Subsidiaries’ written employee policies and procedures;
(vii) any Contract (including pursuant to which any sothird Person is licensed to use any Intellectual Property owned by the Company or any of its Subsidiaries, and all Contracts pursuant to which the Company or any of its Subsidiaries is licensed to use any Intellectual Property, other than Contracts for commercially available off-called takethe-or-pay or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any Transferred Entity in respect of the BGI Business that would reasonably be expected to be material shelf Software licensed to the Transferred Entities, taken as a whole, Company or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible any of its Subsidiaries for Indebtedness or liabilities of any Person (other than any Transferred Entity) in each case an amount not in excess of $10,000,000300,000 in any case over the term of the applicable Contract;
(viii) any Contract that provides for earn-outs or other similar contingent obligations that would reasonably be expected to result in annual payments in 2009 of $5,000,000 or more;with any labor union; or
(ix) any Contract entered into since January 1, 2007 for obligating the acquisition or disposition Company to manage any gaming assets on behalf of a Person or a division of a Person, or for the acquisition or sale of any assets (including Intellectual Property), properties, equity interests or rights, other than any such sale or acquisition in the ordinary course of business or any such sale or acquisition that would not reasonably be expected to be material to the Transferred Entities, taken as a whole; and
(x) any BGI Affiliate Arrangement that will be in effect after the Closingan unrelated third party.
(b) Seller has made available to Buyer prior to the date of this Agreement a complete Each Company Material Contract is valid and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effect, and is valid enforceable against the Company and binding on the Transferred Entity that is a party thereto, and, its Subsidiaries (and to the Knowledge knowledge of Seller, on the Company is enforceable against each other party thereto. There exists no breach ) in accordance with its terms, except to the extent that they have previously expired in accordance with their terms, or default of any Significant Contract on if the part of any Transferred Entity which (with or without notice or lapse of time or both) wouldfailure to be in full force and effect would not, individually or in the aggregate, reasonably be expected to be material to have a Material Adverse Effect on the Transferred Entitiesoperations or business of the Company and its Subsidiaries, taken as a whole. No Transferred Entity , and subject in all cases to: (i) Laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) Laws governing specific performance, injunctive relief and other equitable remedies.
(i) Neither the Company nor its Subsidiaries has materially violated or materially breached, or committed any material default under, any Company Material Contract; (ii) to the knowledge of the Company, no other Person has materially violated or materially breached, or committed any default under, any Company Material Contract; and (iii) neither the Company nor its Subsidiaries has received any written notice of an intention to terminateor, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.
(c) As knowledge of the date hereofCompany, no Transferred Entity has entered into and is bound by other communication regarding any actual or subject to any of the following:
(i) other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practicepossible material violation or material breach of, or default under, any Contract providing for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000;
(ii) other than Contracts entered into in the ordinary course of business, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a whole; or
(iii) other than Contracts entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individuallyCompany Material Contract.
(d) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard forms.
Appears in 2 contracts
Sources: Merger Agreement (Isle of Capri Casinos Inc), Merger Agreement (Eldorado Resorts, Inc.)
Contracts. (a) As of the date of this Agreement, none of the Company or any Company Subsidiary is a party to any Contract 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) Section 4.13(a3.18(b) of the Seller’s Company Disclosure Schedules contains a complete and correct list of all of the following ContractsLetter sets forth, in effect as of the date of this Agreement, an accurate and complete list, and the Company has made available to Parent accurate and complete copies, of: (i) each Contract to which a Transferred Entity the Company or any of the Company Subsidiaries is a partyparty 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 and that is material to the Company and the Company Subsidiaries, is bound by or subject to, or taken as a whole; (ii) each Contract pursuant to which any material amount of Indebtedness of the BGI Business is conducted (the “Specified Contracts”):
(i) any Contract for the placement, distribution or sale of shares, units or other ownership interests of a Fund that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $5,000,000 in 2009;
(ii) any administration agreement Company or any other Contract for of the provision of administrative services that Company Subsidiaries is reasonably expected to provide for payments to, outstanding or provide for payments from a Transferred Entity in 2009 in excess of $10,000,000 and may be incurred by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days terms, other than any such agreement solely between or less;
among the Company and the wholly owned Company Subsidiaries or between or among wholly owned Company Subsidiaries; (iii) each material partnership, joint venture or similar Contract to which the Company or any Contractof 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 of the Company 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 Common Shares outstanding as of the date hereof or (C) to the Knowledge of the Company, any affiliate of any such executive officer, director or owner (other than the Company or any of the Company Subsidiaries), in each case, other than a Benefit and Compensation Arrangement, that is reasonably expected those Contracts filed as exhibits (including exhibits incorporated by reference) to provide for payments to, or provide for payments from, a Transferred Entity in excess of $10,000,000 in 2009;
(iv) any Contract prohibiting or materially restricting the ability of any Transferred Entity to conduct its business, to engage in any business or operate in any geographical area or to compete with any Person;
Filed Company SEC Documents; (v) each Contract relating to the disposition or acquisition by the Company or any Contract for any joint ventureof the Company Subsidiaries, strategic alliancewith material obligations remaining to be performed or material liabilities continuing after the date of this Agreement, partnership or similar arrangement involving a sharing of profits or expenses or payments based on revenues, profits, or assets under management of any Affiliate of Parent material business or any Fund that material amount of assets other than any such Contract entered into in the ordinary course of business; (vi) each Contract to which the Company or any Company Subsidiary is reasonably expected to account for revenue to the BGI Business in 2009 in excess of $10,000,000 on an annual (or annualized) basis or a party that would reasonably be expected to be involve aggregate payments during calendar year 2019 or any subsequent 12-month period of at least $200 million and which is not terminable by either party on less than 60 days’ written notice without material to the Transferred Entitiespenalty, taken as a whole;
(vi) except for any such Contract relating to any Indebtedness of a Transferred Entity in an amount in excess of $5,000,000, other than: (A) any mortgage or similar Indebtedness secured by specific property owned by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closing;
(vii) any Contract (including any so-called take-or-pay or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any Transferred Entity in respect of the BGI Business that would reasonably be expected to be material to the Transferred Entities, taken as a whole, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person (other than any Transferred Entity) in each case in excess of $10,000,000;
(viii) any Contract that provides for earn-outs or other similar contingent obligations that would reasonably be expected to result in annual payments in 2009 of $5,000,000 or more;
(ix) any Contract is entered into since January 1, 2007 for the acquisition or disposition of a Person or a division of a Person, or for the acquisition or sale of any assets (including Intellectual Property), properties, equity interests or rights, other than any such sale or acquisition in the ordinary course of business business; and (vii) other than Contracts for ordinary repair and maintenance, each Contract providing for the development or construction of, or additions or expansions to, any real property, under which the Company or any of the Company Subsidiaries has, or expects to incur, an obligation in excess of $200 million in the aggregate; provided that the following Contracts shall not be required to be listed on Section 3.18(b) of the Company Disclosure Letter, shall not be required to made available to Parent pursuant to this Section 3.18(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 and (3) any Real Estate Lease, which are the subject of Section 3.19 (any such sale Contract in clauses (1) through (4), an “Excluded Contract”). Each Contract described in this Section 3.18(b) and each Filed Company Contract, in each case, other than any Excluded Contract, is referred to herein as a “Material Contract.”
(c) Except for matters which, individually or acquisition that in the aggregate, have not had and would not reasonably be expected to be material to the Transferred Entitieshave a Company Material Adverse Effect, taken as a whole; and
(x) any BGI Affiliate Arrangement that will be in effect after the Closing.
(b) Seller has made available to Buyer prior to the date of this Agreement a complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contracteach Material Contract is a valid, binding and legally enforceable obligation of the Company or one of the Company Subsidiaries, as the case may be, and, to the Knowledge of the Company, of the other parties thereto, except, in each case, as enforcement may be limited by bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or similar Laws affecting creditors’ rights generally and by general principles of equity, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) each such Material Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effect, and (iii) none of the Company or any of the Company Subsidiaries is valid and binding on the Transferred Entity that is a party thereto, and, to the Knowledge of Seller, on each other party thereto. There exists no breach or default of any Significant Contract on the part of any Transferred Entity which (with or without notice or lapse of time time, or both) wouldin breach or default under any such Material Contract and, individually 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, in the aggregatecase of clauses (i) or (ii), reasonably be expected with respect to be material to the Transferred Entities, taken any Material Contract which expires by its terms (as a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken effect as a whole.
(c) As of the date hereof, no Transferred Entity has entered into and ) or which is bound terminated in accordance with the terms thereof by or subject to any of the following:
(i) other than investment management and distribution Contracts entered into Company in the ordinary course of business consistent with past practice, any Contract providing for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000;
(ii) other than Contracts entered into in the ordinary course of business, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a whole; or
(iii) other than Contracts entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individually.
(d) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard forms.
Appears in 2 contracts
Sources: Merger Agreement (Marubeni Corp /Fi), Merger Agreement (Aircastle LTD)
Contracts. (a) Section 4.13(aSchedule 3.11(a) of the Seller’s Parent Disclosure Schedules contains a complete and correct list of all of the following Contractssets forth, in effect as of the date hereof, a list of this Agreement, the following Contracts to which a Transferred Entity any Acquired Company is a party, is party or by which their respective assets are bound by or subject to, or pursuant to which the BGI Business is conducted (the “Specified Material Contracts”):
(i) any Contract for under which the placement, distribution remaining amounts to be paid or sale of shares, units or other ownership interests of a Fund that is received by any Acquired Company would reasonably be expected to provide for payments toexceed $1,500,000 in any twelve-month period, other than any Contract with another Acquired Company to document intercompany loans or provide for payments from, a Transferred Entity in excess of $5,000,000 in 2009arrangements;
(ii) any administration agreement or any other Contract for the provision of administrative services that is reasonably expected to provide for payments to, or provide for payments from a Transferred Entity in 2009 in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or lesscollective bargaining agreements;
(iii) all Contracts which relate to Indebtedness under which any Contract, other than a Benefit and Compensation Arrangement, that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity Acquired Company has outstanding obligations in excess of $10,000,000 in 2009200,000 owed by any Acquired Company or the guarantee thereof;
(iv) all Contracts under which any Contract prohibiting Acquired Company has guaranteed any Liability or materially restricting the ability obligations of any Transferred Entity to conduct its business, to engage other Person (other another Acquired Company) in any business or operate in any geographical area or to compete with any Personexcess of $150,000;
(v) all Contracts containing covenants made by any Contract for any joint venture, strategic alliance, partnership Acquired Company that materially limit or similar arrangement involving a sharing of profits or expenses or payments based on revenues, profits, or assets under management purport to limit the ability of any Affiliate Acquired Company to compete in any line of Parent business or with any Fund that is reasonably expected to account for revenue to the BGI Business Person or in 2009 in excess of $10,000,000 on an annual (any geographic area or annualized) basis or that would reasonably be expected to be material to the Transferred Entities, taken as a wholesales channel;
(vi) any Contract relating with a director, officer or employee of any Acquired Company under which such director, officer or employee is to any Indebtedness of a Transferred Entity in an amount in excess of be paid more than $5,000,000, other than: (A) any mortgage or similar Indebtedness secured by specific property owned by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closing350,000 per annum;
(vii) any Contract (including with an unaffiliated third party with respect to any so-called take-or-pay partnership, limited liability company, joint venture or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any Transferred Entity in respect of the BGI Business that would reasonably be expected to be material to the Transferred Entities, taken as a wholesimilar arrangements, or (B) any shareholders, voting or similar Contract to which any Acquired Company is a Transferred Entity has directly party, by which any Acquired Company is bound or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of which any Person (other than any Transferred Entity) in each case in excess of $10,000,000Acquired Company is subject;
(viii) any Contract that provides for earn-outs the lease, sublease, sale, purchase or other similar contingent obligations occupancy right with respect to real property that would is still in effect and, individually, could reasonably be expected to result in annual payments by any Acquired Company in 2009 excess of $5,000,000 or more250,000 in any twelve-month period;
(ix) any Contract entered into since January 1, 2007 that provides for the acquisition payment, increase or disposition of a Person or a division of a Person, or for the acquisition or sale vesting of any assets (including Intellectual Property), properties, equity interests benefits or rights, other than any such sale or acquisition compensation in connection with the ordinary course of business or any such sale or acquisition that would not reasonably be expected to be material to the Transferred Entities, taken as a wholetransactions contemplated by this Agreement; andor
(x) any BGI Affiliate Arrangement Contract that will be relates to any settlement of material disputes or material litigation, other than (x) releases immaterial in effect after the Closing.
(b) Seller has made available to Buyer prior to the date of this Agreement a complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts nature or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contractamount, (iiy) Investment Advisory Arrangement settlement agreements for cash only (which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iiihas been paid) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effect, and is valid and binding on the Transferred Entity that is a party thereto, and, to the Knowledge of Seller, on each other party thereto. There exists no breach or default of any Significant Contract on the part of any Transferred Entity which (with or without notice or lapse of time or both) would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.
(c) As of the date hereof, no Transferred Entity has entered into and is bound by or subject to any of the following:
(i) other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practice, any Contract providing for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000;
(ii) other than Contracts entered into in the ordinary course of business, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a whole; or
(iii) other than Contracts entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (Cz) to invest in settlement agreements under which the Acquired Companies do not have any investment product, in each case in an amount in excess of $5,000,000 individuallycontinuing material financial obligations or liabilities.
(d) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard forms.
Appears in 2 contracts
Sources: Equity Purchase Agreement (Neutral Tandem Inc), Equity Purchase Agreement (Global Telecom & Technology, Inc.)
Contracts. (a) Section 4.13(a) of the Seller’s Disclosure Schedules contains a complete and correct list of all of the following Contracts, in effect as of the date For purposes of this Agreement, “Material Contract” means all Contracts to which a Transferred Entity AHL or any of its Subsidiaries is a partyparty or by which AHL, any of its Subsidiaries or any of their respective properties or assets is bound by or subject to, or pursuant (other than AHL Plans and Contracts pertaining to which the BGI Business is conducted (the “Specified Contracts”):Investment Assets) that:
(i) any Contract for are or would be required to be filed by AHL as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the placement, distribution or sale of shares, units or other ownership interests of a Fund that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $5,000,000 in 2009Securities Act;
(ii) any administration with respect to a joint venture, partnership or other similar agreement or arrangement, relate to the formation or management of any other Contract for the provision of administrative services that is reasonably expected to provide for payments to, such partnership or provide for payments from a Transferred Entity in 2009 in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or lessjoint venture;
(iii) any Contract, other than a Benefit and Compensation Arrangement, that is reasonably expected to provide for payments to, Indebtedness of AHL or provide for payments from, a Transferred Entity any of its Subsidiaries having an outstanding or committed amount in excess of $10,000,000 in 2009100 million, other than any Indebtedness between or among any of AHL and any of its Subsidiaries and other than any letters of credit;
(iv) any Contract prohibiting have been entered into since January 1, 2018, and involve the acquisition from another Person or materially restricting the ability disposition to another Person of any Transferred Entity to conduct its capital stock or other equity interests of another Person or of a business, to engage or any material assets or business of another Person, in any business or operate each case, for aggregate consideration under such Contract in any geographical area or to compete with any Personexcess of $100 million;
(v) restrict the transfer of equity interests of AHL or any Contract for of its Subsidiaries;
(vi) prohibit the payment of dividends or distributions in respect of the capital of AHL or any joint ventureof its wholly owned Subsidiaries, strategic allianceprohibit the pledging of the capital of AHL or any wholly owned Subsidiary of AHL or prohibit the issuance of any guarantee by AHL or any wholly owned Subsidiary of AHL;
(vii) agency, partnership broker, selling, marketing or similar arrangement involving a sharing agreements between any AHL Insurance Subsidiary and any Producer of profits the AHL Insurance Subsidiary who or expenses which was responsible for placing 1% or payments based on revenuesmore of the aggregate statutory gross written premium of the AHL Insurance Subsidiary for the year ended December 31, profits2020;
(viii) are with any financial advisor of AHL or any of its Subsidiaries relating to the Transactions;
(ix) contain provisions that prohibit AHL or any of its Subsidiaries or any Person that controls, or assets is under management common control with, AHL from competing in any line of business or grant a right of exclusivity to any Person which prevents AHL or any Subsidiary or Affiliate of AHL from entering any territory, market or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by AHL or any of its Subsidiaries on less than ninety (90) days’ notice without payment by AHL or any Subsidiary of AHL of any Affiliate of Parent penalty;
(x) pursuant to which AHL or any Fund of its Subsidiaries (A) is granted or obtains any right to use any material Intellectual Property (other than Contracts granting rights to use common or industry standard commercially available business infrastructure and administrative software (e.g., database, enterprise resource planning, business management planning, desktop and similar software) and commercially available, off-the-shelf software (including “shrink-wrap” or “click-wrap” agreements)) or (B) grants an exclusive license to, or option to acquire, any Intellectual Property owned by AHL or any of its Subsidiaries that is reasonably expected to account for revenue material to the BGI Business conduct of the businesses of AHL and its Subsidiaries as currently conducted (excluding licenses granted to third parties in 2009 in excess the ordinary course of $10,000,000 on an annual business);
(xi) involve or annualized) basis or that would reasonably be expected to be involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10 million in any twelve-month period, other than those terminable on less than ninety (90) days’ notice without payment by AHL or any Subsidiary of AHL of any material to the Transferred Entities, taken as a wholepenalty;
(vixii) include an indemnification obligation of AHL or any Contract relating to of its Subsidiaries with a maximum potential liability in excess of $10 million;
(xiii) all material reinsurance or retrocession treaties and agreements of AHL or any Indebtedness of a Transferred Entity its Subsidiaries (the “AHL Reinsurance Contracts”);
(xiv) all investment asset management agreements of AHL or any of its Subsidiaries; or
(xv) require any capital expenditure (or series of capital expenditures) by AHL or any of its Subsidiaries in an amount in excess of $5,000,000, other than: (A) any mortgage or similar Indebtedness secured by specific property owned by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closing;
(vii) any Contract (including any so-called take-or-pay or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any Transferred Entity in respect of the BGI Business that would reasonably be expected to be material to the Transferred Entities, taken as a whole, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person (other than any Transferred Entity) in each case in excess of $10,000,000;
(viii) any Contract that provides for earn-outs or other similar contingent obligations that would reasonably be expected to result in annual payments in 2009 of $5,000,000 or more;
(ix) any Contract entered into since January 1, 2007 for the acquisition or disposition of a Person or a division of a Person, or for the acquisition or sale of any assets (including Intellectual Property), properties, equity interests or rights, other than any such sale or acquisition 10 in the ordinary course of business or any such sale or acquisition that would not reasonably be expected to be material to the Transferred Entities, taken as a whole; and
(x) any BGI Affiliate Arrangement that will be in effect after the Closingaggregate.
(bi) Seller has made available to Buyer prior Each Material Contract is valid and binding on AHL and/or any of its Subsidiaries to the date of this Agreement extent such Person is a complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld party thereto, as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contractapplicable, including all material amendmentsand, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis Knowledge of AHL, each other party thereto, and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effect, except where the failure to be valid, binding or in full force and is valid effect would not have a Material Adverse Effect, (ii) AHL and binding on the Transferred Entity that is a party theretoeach of its Subsidiaries, and, to the Knowledge of SellerAHL, on each any other party thereto. There exists no breach or default , have performed all obligations required to be performed by them under each Material Contract, except where such noncompliance would not have a Material Adverse Effect, (iii) neither AHL nor any of its Subsidiaries has received notice of the existence of any Significant Contract on the part of any Transferred Entity event or condition which (with or without constitutes, or, after notice or lapse of time or both) would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.
(c) As of the date hereof, no Transferred Entity has entered into and is bound by or subject to any of the following:
(i) other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practice, any Contract providing for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by constitute, a Transferred Entity in excess default on the part of $10,000,000;
AHL or any of its Subsidiaries under any Material Contract, except where such default would not have a Material Adverse Effect and (iiiv) other than Contracts entered into in there are no events or conditions which constitute, or, after notice or lapse of time or both, would reasonably be expected to constitute, a default on the ordinary course of business, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a whole; or
(iii) other than Contracts entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individually.
(d) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description part of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangementscounterparty under such Material Contract, except as would not have a Material Adverse Effect.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard forms.
Appears in 2 contracts
Sources: Merger Agreement (Apollo Global Management, Inc.), Merger Agreement (Athene Holding LTD)
Contracts. (a) Section 4.13(a3.16(a) of the Seller’s Company Disclosure Schedules contains Letter sets forth a complete and correct list of all of the following Contracts, in effect Material Contracts as of the date of this Agreement. For purposes of this Agreement, to which a Transferred Entity is a party, is bound by or subject to, or pursuant “Material Contract” means any Contract to which the BGI Business Company or any of its Subsidiaries is conducted (a party or by which the “Specified Contracts”):Company or any of its Subsidiaries or any of their respective properties or assets is bound that:
(i) any Contract for is or would be required to be filed by the placement, distribution or sale Company as a “material contract” pursuant to Item 601(b)(10) of shares, units or other ownership interests of a Fund that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $5,000,000 in 2009Regulation S-K under the Securities Act;
(ii) any administration agreement or any other Contract for the provision of administrative services that is reasonably expected with respect to provide for payments to, or provide for payments from a Transferred Entity in 2009 in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or less;
(iii) any Contract, other than a Benefit and Compensation Arrangement, that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $10,000,000 in 2009;
(iv) any Contract prohibiting or materially restricting the ability of any Transferred Entity to conduct its business, to engage in any business or operate in any geographical area or to compete with any Person;
(v) any Contract for any joint venture, strategic alliance, partnership or other similar arrangement involving a sharing of profits or expenses or payments based on revenues, profits, or assets under management of any Affiliate of Parent or any Fund that is reasonably expected to account for revenue to the BGI Business in 2009 in excess of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be material to the Transferred Entities, taken as a whole;
(vi) any Contract relating to any Indebtedness of a Transferred Entity in an amount in excess of $5,000,000, other than: (A) any mortgage or similar Indebtedness secured by specific property owned by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closing;
(vii) any Contract (including any so-called take-or-pay or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any Transferred Entity in respect business of the BGI Business that would reasonably be expected to be material to the Transferred EntitiesCompany and its Subsidiaries, taken as a whole, or (B) a Transferred Entity has directly relates to the formation, creation, governance, economics or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities control of any Person such joint venture, partnership or other similar arrangement;
(other than iii) provides for indebtedness for borrowed money of the Company or any Transferred Entity) in each case of its Subsidiaries having an outstanding or committed amount in excess of $10,000,00025 million, other than (A) Indebtedness solely between or among any of the Company and any of its wholly owned Subsidiaries or (B) letters of credit;
(viiiiv) relates to the acquisition or disposition of any business, assets, or properties (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration under such Contract in excess of $50 million (A) that provides for was entered into after January 1, 2014, or (B) pursuant to which any material earn-outs out, indemnification or other similar deferred or contingent payment obligations remain outstanding that would reasonably be expected to result involve payments by or to the Company or any of its Subsidiaries of more than $15 million after the date hereof (in annual payments in 2009 of $5,000,000 or more;
(ix) any Contract entered into since January 1each case, 2007 excluding for the acquisition avoidance of doubt, acquisitions or disposition dispositions of a Person supplies, inventory, merchandise or a division of a Person, or for the acquisition or sale of any assets (including Intellectual Property), properties, equity interests or rights, other than any such sale or acquisition products in the ordinary course of business or of supplies, inventory, merchandise, products, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries);
(v) is a Contract for the purchase of materials, supplies, goods, services, equipment or other assets which provided for aggregate payments by the Company or any such sale Subsidiary of the Company of more than $20 million during the fiscal year ended December 31, 2015;
(vi) is a Contract with a customer of the Company or acquisition any Subsidiary of the Company, including distributors, which provided for aggregate payments to the Company or any Subsidiary of the Company of more than $20 million during the fiscal year ended December 31, 2015;
(vii) is (or contains provisions described in this clause (vii) that are or would not reasonably be expected to be be) material to the Transferred EntitiesCompany and its Subsidiaries, taken as a whole, and contains provisions that prohibit the Company or any of its Affiliates from competing in or conducting any line of business or grants a right of exclusivity or “most favored nation” right to any Person that prevents the Company or any of its Affiliates from entering any territory, market or field or freely engaging in business anywhere in the world, other than (A) Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than 90 days’ notice without payment by the Company or any of its Subsidiaries of any material penalty, (B) distribution or customer Contracts entered into in the ordinary course of business granting exclusive rights to sell or distribute certain of the Company’s products, (C) license agreements for Intellectual Property limiting the Company’s and its Subsidiaries’ use of such Intellectual Property to specified fields of use and (D) Contracts with customers entered into in the ordinary course of business granting a “most favored nation” right to such customer in respect of certain of the Company’s products or services; andor
(xviii) is a license, royalty or similar Contract with respect to Intellectual Property (other than generally commercially available, “off-the-shelf” software programs or non-exclusive licenses granted by the Company or any BGI Affiliate Arrangement that will Subsidiary of the Company in the ordinary course of business which do not contain any material restriction or condition on the use or exploitation of any Intellectual Property by the Company or any Subsidiary of the Company) which would reasonably be in effect after expected to involve payments by or to the ClosingCompany or any of its Subsidiaries of more than $15 million per any twelve-month period.
(b) Seller has made available to Buyer prior Each Material Contract is valid and binding on the Company and/or any of its Subsidiaries to the date of this Agreement extent such Person is a complete party thereto, as applicable, and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis Knowledge of the Company, each other party thereto, and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effect, except where the failure to be valid, binding or in full force and is valid and binding on the Transferred Entity that is a party thereto, and, to the Knowledge of Seller, on each other party thereto. There exists no breach or default of any Significant Contract on the part of any Transferred Entity which (with or without notice or lapse of time or both) wouldeffect would not, individually or in the aggregate, reasonably be expected to be material have a Material Adverse Effect, (ii) the Company and each of its Subsidiaries, and, to the Transferred EntitiesKnowledge of the Company, taken as a whole. No Transferred Entity any other party thereto, has received any written notice of an intention performed all obligations required to terminate, not to renew or to challenge the validity or enforceability of any Significant be performed by it under each Material Contract, the termination, failure to renew or challenge of which wouldexcept where such nonperformance would not, individually or in the aggregate, reasonably be expected to be material to have a Material Adverse Effect, (iii) neither the Transferred Entities, taken as a whole.
(c) As Company nor any of its Subsidiaries has received written notice of the date hereof, no Transferred Entity has entered into and is bound by existence of any breach or subject to default on the part of the Company or any of the following:
(i) other than investment management and distribution Contracts entered into its Subsidiaries under any Material Contract, except where such default would not, individually or in the ordinary course of business consistent with past practiceaggregate, any Contract providing for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by have a Transferred Entity in excess Material Adverse Effect, (iv) there are no events or conditions which constitute, or, after notice or lapse of $10,000,000;
(ii) other than Contracts entered into time or both, will constitute a default on the part of the Company or any of its Subsidiaries, or to the Knowledge of the Company, any counterparty under such Material Contract, except as would not, individually or in the ordinary course of businessaggregate, reasonably be expected to have a Material Adverse Effect, and (v) the Company has not received any notice in writing from any Person that such Person intends to terminate, or not renew, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a whole; or
(iii) other than Contracts entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individuallyMaterial Contract.
(d) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard forms.
Appears in 2 contracts
Sources: Merger Agreement (Abbott Laboratories), Merger Agreement (Alere Inc.)
Contracts. (a) Except (x) for this Agreement, (y) for the Contracts filed no less than one (1) Business Day prior to the date hereof as exhibits to the SEC Reports and (z) pursuant to any Company Plan, Section 4.13(a3.8(a) of the Seller’s Company Disclosure Schedules contains Letter sets forth a true, correct and complete and correct list of all of the following Contractslist, in effect as of the date hereof, of this Agreementany of the following notes, to which bonds, mortgages, indentures, contracts, agreements, leases or other similar instruments (each, a Transferred Entity is a party, is bound by or subject to, or pursuant “Contract”) to which the BGI Business Company or any of its subsidiaries is conducted (the “Specified Contracts”):party to or by which any of them is bound:
(i) any Contract for the placement, distribution Contracts that are (A) Management Agreements or sale of shares, units or other ownership interests of a Fund that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $5,000,000 in 2009(B) Franchise Agreements;
(ii) any administration (A) Any lease, sublease or occupancy agreement of real property (other than Ground Leases) under which the Company or any other Contract of its subsidiaries is the tenant or subtenant or serves in a similar capacity, (x) providing for the provision of administrative services that is reasonably expected to provide for payments to, or provide for payments from a Transferred Entity in 2009 in excess annual rentals of $10,000,000 and by 500,000 or more or (y) demising more than 5,000 square feet of space (each, a “Material Company Lease”); (B) any lease, sublease, license or occupancy agreement of real property (other than Ground Leases) under which the Company or any of its terms subsidiaries is not terminable without penalty by the landlord or sub-landlord or serves in a Transferred Entity upon notice similar capacity, (x) providing for annual rentals of 180 days $500,000 or lessmore or (y) demising more than 5,000 square feet of space (each, a “Material Space Lease”) or (C) any Ground Lease;
(iii) any ContractContracts, other than a Benefit any Management Agreements or Franchise Agreements, with any undelivered balance providing for an expenditure (including any capital expenditure) by the Company and Compensation Arrangement, that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity its subsidiaries in excess of $10,000,000 1,000,000, excluding any payment obligation budgeted for in 2009the Company’s 2021 budget or in the budgets of any joint venture;
(iv) any Contract prohibiting or materially restricting Contracts that relate to (A) the ability sale of any Transferred Entity to conduct of the Company’s or any of its subsidiaries’ assets with a fair market value or purchase price in excess of $1,000,000 individually, other than in the ordinary course of business, or (B) the pending purchase or sale, option to engage in purchase or sell, right of first refusal, right of first offer or other right to purchase, sell, dispose of, or ground lease, by merger, purchase or sale of assets or stock or otherwise, any business real property (including any Owned Real Property or operate in any geographical area or to compete with any Personportion thereof);
(v) Contracts that relate to the acquisition of any Contract for any joint venturebusiness, strategic alliance, partnership or similar arrangement involving a sharing of profits or expenses or payments based on revenues, profits, stock or assets under management of any Affiliate of Parent other Person or any Fund that is reasonably expected to account for revenue to the BGI Business in 2009 in excess real property (whether by merger, sale of stock, sale of assets or otherwise) of more than $10,000,000 on an annual (2,500,000 individually or annualized) basis or that would reasonably be expected to be material to the Transferred Entities, taken as a whole;
(vi) any Contract relating to any Indebtedness of a Transferred Entity in an amount in excess of $5,000,000, other than: (A) any mortgage or similar Indebtedness secured by specific property owned by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closing;
(vii) any Contract (including any so-called take-or-pay or keep well agreements) under which (A) any Person the Company or its subsidiaries has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any Transferred Entity in respect of the BGI Business that would reasonably be expected to be material to the Transferred Entities, taken as a whole, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person continuing indemnification (other than any Transferred Entity) in each case in excess of $10,000,000;
(viii) any Contract that provides for earn-outs or other similar contingent obligations that would reasonably be expected to result in annual payments in 2009 of $5,000,000 or more;
(ix) any Contract entered into since January 1, 2007 for the acquisition or disposition of a Person or a division of a Person, or for the acquisition or sale of any assets (including Intellectual Property), properties, equity interests or rights, other than any such sale or acquisition in the ordinary course of business or any such sale or acquisition in an amount that would not reasonably be expected to be material to the Transferred EntitiesCompany and its subsidiaries, taken as a whole; and
(x) any BGI Affiliate Arrangement that will be ), earnout or similar obligations involving more than $2,500,000 in effect the aggregate over the term of the Contract from and after the Closing.
(b) Seller has made available to Buyer prior to the date of this Agreement a complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each ;
(ivi) Specified ContractContracts relating to (A) indebtedness or guarantees, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on in each case having an annualized basis and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity outstanding principal amount in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity 2,500,000 or ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effect, and is valid and binding on the Transferred Entity that is a party thereto, and, to the Knowledge of Seller, on each other party thereto. There exists no breach or default of any Significant Contract on the part of any Transferred Entity which (with or without notice or lapse of time or both) would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.
(c) As of the date hereof, no Transferred Entity has entered into and is bound by or subject to any of the following:
(iB) other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practice, any loan, advance or other extension of credit made by the Company or any of its subsidiaries;
(vii) Contracts relating to any material swap, forward, futures, warrant, option or other derivative transaction, or interest rate or foreign currency protection, other than any such Contract between or among any of the Company and any of its subsidiaries;
(viii) Contracts for joint ventures, strategic alliances, collaboration, co-promotion, co-marketing or partnerships, in each case, that are material to the Company and its subsidiaries taken as a whole;
(ix) Contracts, other than any Management Agreements or Franchise Agreements, that grant to any Person other than the Company or its subsidiaries any (A) “most favored nation” rights, (B) rights of first refusal, rights of first negotiation or similar rights or (C) exclusive rights to purchase, develop or market any of the Company’s or its subsidiaries’ properties, products or services;
(A) Contracts with any Governmental Entity (other than Permits) or (B) any stockholders, investors rights, registration rights or similar agreement or arrangement or other Affiliate Contracts;
(xi) material Contracts, other than any Management Agreements or Franchise Agreements, relating to material Intellectual Property, other than commercially available non-exclusive licenses with annual fees of less than $150,000;
(xii) Contracts, other than any Management Agreements or Franchise Agreements, providing for any minimum or guaranteed payments or purchases by the indemnification Company or any of its subsidiaries to any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,0001,000,000 annually;
(iixiii) Contracts, other than Contracts entered into any Management Agreements or Franchise Agreements, containing covenants that purport to (A) materially restrict or limit the ability of the Company, its subsidiaries or any of the Company’s future subsidiaries or Affiliates to compete in the ordinary course any geographical area, market or line of business, (B) materially restrict or limit the Company, its subsidiaries or any type of the Company’s future subsidiaries or Affiliates from selling products or delivering services to any Person, or (C) otherwise materially restrict the Company, its subsidiaries or any of the Company’s future subsidiaries or Affiliates from engaging in any aspect of its business, except in each case, for any such Contract to cap fees, share fees that may be cancelled without penalty by the Company or other payments, share expenses, waive fees any of its subsidiaries upon notice of 120 days or to reimburse less;
(xiv) Settlement agreement or assume similar agreement with a Governmental Entity involving future performance by the Company or any or all fees or expenses thereunder that of its subsidiaries in any such case would be case, that is material to the Transferred EntitiesCompany and its subsidiaries, taken as a whole; or;
(iiixv) Contracts with any labor organization, union, works council, workers’ association or other employee representative body;
(xvi) Contracts, other than Contracts entered into any Management Agreements or Franchise Agreements, prohibiting the payment of dividends or distributions in respect of the ordinary course capital stock of the Company or any of its subsidiaries or prohibiting the pledging of the capital stock of the Company or any subsidiary of the Company; and
(xvii) Contracts, other than any Management Agreements or Franchise Agreements, involving annual revenues to the business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount of the Company and its subsidiaries in excess of $5,000,000 individuallyfor the prior fiscal year or reasonably expected for the current fiscal year. Each Contract required to be set forth in Section 3.8(a) of the Company Disclosure Letter or filed as an exhibit to the SEC Reports as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act (in each case, excluding any Company Plan) is referred to herein as a “Material Contract”).
(db) Notwithstanding anything Each of the Material Contracts is valid and binding on the Company and each of its subsidiaries party thereto and, to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) knowledge of the Seller’s Disclosure Schedules Company, each other party thereto, and is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue full force and effect, subject to Seller the Bankruptcy and its Affiliates in excess of Equity Exception, except (i) $1,000,000 to the extent that any Material Contract expires or terminates after the date hereof in 2008 for Investment Advisory Arrangement accordance with U.S.-based clients its terms, and (ii) $5,000,000 for such failures to be valid and binding or to be in 2008 for all other Investment Advisory Arrangements.
(f) Attached full force and effect that would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. Except as Section 4.13(f) would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, as of the Seller’s Disclosure Schedules is date hereof (x) neither the Company nor any of its subsidiaries has received written notice from any other party to a description Material Contract that such other party intends to terminate, not renew, modify or renegotiate in any material respects the terms of any “key person” provision pertaining to employees of a Transferred Entity such Material Contract (except in accordance with the terms thereof) and (y) there is no breach or default under any Material Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy by the Company or any of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contractssubsidiaries or, in each case provided to certain funds and clients the knowledge of the securities lending or short-term cash businesses of the BGI BusinessCompany, any other party thereto, and none no event has occurred that with or without the lapse of time or the Contracts used giving of notice or both would constitute a default thereunder by the Transferred Entities for such purposes materially deviates from such standard formsCompany or any of its subsidiaries.
Appears in 2 contracts
Sources: Merger Agreement (CorePoint Lodging Inc.), Merger Agreement (CorePoint Lodging Inc.)
Contracts. (a) Neither the Company nor any of its Subsidiaries is a party to, and none of their respective properties or other assets is subject to, any Contract that is of a nature required to be filed as an exhibit to a report or filing under the Securities Act or the Exchange Act, other than any Contract that is filed as an exhibit to the Filed Company SEC Documents.
(b) Except for Contracts filed in unredacted form as exhibits to the Filed Company SEC Documents, Section 4.13(a3.10(b) of the Seller’s Company Disclosure Schedules contains Schedule sets forth a correct and complete and correct list of all of the following Contracts, in effect as of the date of this Agreement, and the Company has made available to which a Transferred Entity is a partyParent correct and complete copies (including all amendments thereto), is bound by or subject to, or pursuant to which the BGI Business is conducted (the “Specified Contracts”):of:
(i) all Contracts (other than Contracts of the category required to be disclosed in either clause (ix) or clause (x) of this Section 3.10(b), regardless of value) of the Company or any Contract for the placement, distribution or sale of shares, units or other ownership interests of a Fund that is reasonably expected to provide for payments toits Subsidiaries having an aggregate value per Contract, or provide for involving payments fromby or to the Company or any of its Subsidiaries, a Transferred Entity in excess of more than $5,000,000 in 2009500,000 on an annual basis;
(ii) any administration agreement all Contracts to which the Company or any other Contract for the provision of administrative services that its Subsidiaries is reasonably expected to provide for payments toa party, or provide for payments from by which the Company, any of its Subsidiaries or any of its Affiliates is bound, that contain a Transferred covenant restricting the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, would restrict the ability of Parent or any of its Subsidiaries, including the Surviving Entity and its Subsidiaries) to compete in 2009 any business or with any person or in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or lessany geographic area;
(iii) any Contract, all Contracts (other than a Benefit and Compensation ArrangementContracts entered into in the ordinary course of business with all providers of health care, that is reasonably expected to provide for payments including, but not limited to, physicians, facilities and ancillary providers (each a "Provider")) of the Company or provide for payments from, a Transferred Entity in excess any of $10,000,000 in 2009its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(iv) all Contracts to which the Company or any Contract prohibiting of its Subsidiaries is a party granting any license to intellectual property (other than trade and service marks) and any other license (other than real estate) having an aggregate value per license, or materially restricting involving payments to the ability Company or any of any Transferred Entity to conduct its businessSubsidiaries, to engage in any business or operate in any geographical area or to compete with any Personof more than $500,000 on an annual basis;
(v) any Contract for any joint ventureall confidentiality agreements (other than in the ordinary course of business), strategic alliance, partnership agreements by the Company not to acquire assets or similar arrangement involving securities of a sharing third party or agreements by a third party not to acquire assets or securities of profits or expenses or payments based on revenues, profits, or assets under management of any Affiliate of Parent or any Fund that is reasonably expected to account for revenue to the BGI Business in 2009 in excess of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be material to the Transferred Entities, taken as a wholeCompany;
(vi) any Contract relating to any Indebtedness of a Transferred Entity in having an amount in excess of $5,000,000aggregate value per Contract, other than: (A) any mortgage or similar Indebtedness secured by specific property owned involving payments by or to the Company or any of its Subsidiaries, of more than $500,000 on behalf an annual basis that requires consent of or notice to a Client; (B) third party in the event of or with respect to the Merger, including in order to avoid termination of or loss of benefit under any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closingsuch Contract;
(vii) all joint venture, partnership or other similar agreements involving co-investment with a third party to which the Company or any Contract (including any so-called take-or-pay or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any Transferred Entity in respect of the BGI Business that would reasonably be expected to be material to the Transferred Entities, taken as its Subsidiaries is a whole, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person (other than any Transferred Entity) in each case in excess of $10,000,000party;
(viii) except as set forth in Section 3.03, all Contracts pursuant to which any Contract that provides indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of its Subsidiaries of any indebtedness of any other person (other than the Company or any of its Subsidiaries) (except for earn-outs such indebtedness or other similar contingent obligations that would reasonably be expected to result guarantees the aggregate principal amount of which does not exceed $500,000 on an annual basis and excluding trade payables arising in annual payments in 2009 the ordinary course of $5,000,000 or morebusiness);
(ix) any Contract entered into since January 1, 2007 for the acquisition 25 largest Provider and the ten largest customer Contracts measured in terms of payments to or disposition of a Person or a division of a Person, or for receipts from the acquisition or sale of any assets (including Intellectual Property), properties, equity interests or rights, other than any such sale or acquisition Company and its Subsidiaries in the ordinary course of business or any such sale or acquisition that would not reasonably be expected to be material to aggregate during the Transferred Entitiescalendar year ending December 31, taken as a whole; and2002;
(x) any BGI Affiliate Arrangement Contract (other than a Contract with a Provider) that will be in effect involves (1) annual premiums or payments of greater than $500,000 or annual administrative services fees or similar payments of greater than $500,000 and (2) by its terms, does not terminate within one year after the Closingdate of such Contract and is not cancelable during such period without penalty or without payment (other than customer agreements that are not terminable within one year solely as a result of the Health Insurance Portability and Accountability Act and the regulations promulgated thereunder (including 45 C.F.R. parts 160, 162, and 164) or other statutory or regulatory requirements); and
(xi) any Contract, agreement or policy for reinsurance.
(bc) Seller None of the Company or any of its Subsidiaries is, or has made available to Buyer prior to the date of this Agreement a complete and correct copy of each received written Specified Contract (except in certain instances such Specified Contracts notice or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract has Knowledge that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effect, and is valid and binding on the Transferred Entity that is a party thereto, and, to the Knowledge of Seller, on each any other party thereto. There exists no to any of its Contracts is, in violation or breach of or default of any Significant Contract on the part of any Transferred Entity which (with or without notice or lapse of time or both) wouldunder, or has waived or failed to enforce any rights or benefits under, any Contract to which it is a party or any of its properties or other assets is subject, and, to the Knowledge of the Company, there has occurred no event giving to others any right of termination, amendment or cancellation of (with or without notice or lapse of time or both) any such Contract except, in each case for violations, breaches, defaults, waivers or failures to enforce rights or benefits that individually or in the aggregate, aggregate have not had and would not reasonably be expected to be material to the Transferred Entities, taken as have a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a wholeCompany Material Adverse Effect.
(c) As of the date hereof, no Transferred Entity has entered into and is bound by or subject to any of the following:
(i) other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practice, any Contract providing for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000;
(ii) other than Contracts entered into in the ordinary course of business, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a whole; or
(iii) other than Contracts entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individually.
(d) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard forms.
Appears in 2 contracts
Sources: Merger Agreement (Mid Atlantic Medical Services Inc), Merger Agreement (Unitedhealth Group Inc)
Contracts. (a) Except for this Agreement, Section 4.13(a5.10(a) of the Seller’s STFC Disclosure Schedules contains Letter sets forth a complete and correct list of all of the following Contractslist, in effect as of the date of this Agreement, of all Contracts (except for any STFC Insurance Contract, STFC Reinsurance Contract, ▇▇▇ Benefit Plan or STFC Benefit Plan) to which a Transferred Entity STFC or any of its Subsidiaries, as applicable, is a partyparty to or bound that meets the following criteria (each, is bound by or subject to, or pursuant to which the BGI Business is conducted (the a “Specified ContractsSTFC Material Contract”):
(i) any Contract for that would be required to be filed by STFC as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the placement, distribution or sale of shares, units or other ownership interests of a Fund that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $5,000,000 in 2009Securities Act;
(ii) any administration agreement (A) containing covenants that purport to materially restrict the ability of STFC or any of its Subsidiaries or, at or after the Closing, LMHC or any of its Subsidiaries from (1) engaging in any business or competing in any business with any Person or in any geographic area, (2) operating its business in any manner or location, in each case, other Contract than with respect to soliciting or hiring employees or (3) acquiring assets or securities of another Person (whether through a standstill or otherwise), (B) provides for the provision granting of administrative services that is reasonably expected “most favored nation” pricing or exclusive rights to provide for payments toany Person or (C) would require the disposition of any material assets or line of business of STFC or its Subsidiaries or acquisition of any material assets or line of business of any Person or, at or provide for payments from a Transferred Entity in 2009 in excess after the Closing, LMHC or any of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or lessSubsidiaries;
(iii) with respect to any Contractpartnership, joint venture or other than a Benefit similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture material to STFC or any of its Subsidiaries, except for any such Contract solely between STFC and Compensation Arrangement, that is reasonably expected to provide for payments to, its wholly-owned Subsidiaries or provide for payments from, a Transferred Entity in excess of $10,000,000 in 2009solely among STFC’s wholly-owned Subsidiaries;
(iv) that evidences the creation, incurrence, assumption or guarantee of Indebtedness of STFC or any Contract prohibiting of its Subsidiaries in excess of $7,500,000, other than any Indebtedness between or materially restricting the ability among any of STFC and any Transferred Entity to conduct of its business, to engage in any business or operate in any geographical area or to compete with any Personwholly-owned Subsidiaries;
(v) any Contract for any joint venture, strategic alliance, partnership limiting or similar arrangement involving a sharing prohibiting (or purporting to limit or prohibit) the declaration of profits or expenses payment of dividends or payments based on revenues, profits, distributions to STFC Shareholders or assets under management in respect of the capital stock or other equity securities of any Affiliate of Parent STFC or any Fund that is reasonably expected of its Subsidiaries, prohibiting the pledging of any capital stock or other equity securities of STFC or any of its Subsidiaries or prohibiting the issuance of guarantees by STFC or any of its Subsidiaries (other than pursuant to account for revenue to the BGI Business in 2009 in excess of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be material to the Transferred Entities, taken as a wholeapplicable Law);
(vi) pursuant to which STFC or any Contract relating to any Indebtedness of a Transferred Entity in an amount in excess of $5,000,000, other than: its Subsidiaries (A) licenses any mortgage material Intellectual Property from any non-Affiliated Person (other than licenses for open source or similar Indebtedness secured by specific property owned by off-the-shelf software pursuant to “click-wrap” or on behalf of a Client; “shrink-wrap” agreements), (B) licenses any Indebtedness solely between Transferred Entities; material Intellectual Property to any non-Affiliated Person or (C) is limited in its own use or enforcement of any Indebtedness for which no Transferred Entity will be liable following the ClosingIntellectual Property owned by STFC or its Subsidiaries;
(vii) any Contract (including the principal purpose of which is to indemnify any so-called take-or-pay current or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any Transferred Entity former STFC Shareholder in respect of the BGI Business that would reasonably be expected to be material to the Transferred Entities, taken as a whole, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person (other than any Transferred Entity) in each case in excess of $10,000,000potential Tax Liabilities;
(viii) any Contract that provides for earncollective bargaining agreement or any other labor-outs related agreement or arrangement with any labor union, trade union, labor organization or other similar contingent obligations that would reasonably be expected to result in annual payments in 2009 of $5,000,000 or moreemployee representative body;
(ix) relating to an acquisition, disposition or divestiture of any Contract entered into since January 1, 2007 for the acquisition business or disposition of any assets that constitute a Person business or a business unit or division of another Person (whether by merger, sale of stock, sale of assets or otherwise) and which contains representations, covenants, material indemnities or other material obligations (including material indemnification, “earn-out” or other contingent obligations) that are still in effect (other than this Agreement and confidentiality agreements in connection with any potential acquisition, divestiture, merger or similar transaction);
(x) evidencing derivatives, financial or commodity hedging or similar trading activities, including any interest rate or currency swaps or similar Contract to which STFC or any of its Subsidiaries is a Personparty;
(xi) containing a put, call, right of first refusal, right of first offer or similar right or obligation pursuant to which STFC or any of its Subsidiaries would be required to purchase or sell, as applicable, all or any substantial part of any material assets, rights or properties of STFC or any of its Subsidiaries;
(xii) that restricts the ability of STFC or any of its Subsidiaries to declare, set aside or pay any dividends on, or for make any other distributions (whether in cash, stock, property or any combination thereof) in respect of, any of its capital stock, other equity or voting interests;
(xiii) with respect to any voting agreement, voting trust, shareholder agreement or registration rights agreement, other than in connection with STFC Investment Assets;
(xiv) containing a mortgage, pledge, security agreement, deed of trust or similar Lien (other than any Permitted Lien) on any property or assets material to STFC and its Subsidiaries (taken as a whole);
(xv) requiring any capital commitment or capital expenditures (including any series of related expenditures) or pursuant to which STFC or any of its Subsidiaries, individually or collectively, have any obligations (including with respect to the acquisition purchase or sale of any assets (including Intellectual Propertymaterials, supplies, goods, equipment or other assets), propertiesin each case, equity interests in excess of $2,000,000 per year or rightsin the next twelve (12) months;
(xvi) that are STFC Leases;
(xvii) that provides for any guarantee of third-party obligations, other than any such sale guarantees by STFC of its Subsidiaries’ obligations or acquisition in the ordinary course guarantees by STFC’s Subsidiaries of business or any such sale or acquisition that would not reasonably be expected to be material to the Transferred Entities, taken as a whole; and
(x) any BGI Affiliate Arrangement that will be in effect after the Closing.
(b) Seller has made available to Buyer prior to the date of this Agreement a complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in SellerSTFC’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effect, and is valid and binding on the Transferred Entity that is a party thereto, and, to the Knowledge of Seller, on each other party thereto. There exists no breach or default of any Significant Contract on the part of any Transferred Entity which (with or without notice or lapse of time or both) would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.
(c) As of the date hereof, no Transferred Entity has entered into and is bound by or subject to any of the following:
(i) other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practice, any Contract providing for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000obligations;
(iixviii) with any Governmental Authority, other than Contracts any non-disclosure or similar Contract or Policy entered into in the ordinary course of business, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a whole; or;
(iiixix) providing for any settlement of any Action (other than Contracts entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity claims made under ▇▇▇ Insurance Contracts within applicable policy limits) that (A) to co-invest with any other Person, imposes material future limitations on the operation of STFC and its Subsidiaries or (B) to provide seed capital or similar investment or involves (Cx) to invest in any investment productpayments after December 31, in each case in an amount 2020, in excess of $5,000,000 individuallyor (y) monitoring or reporting obligations to any other Person; or
(xx) that provides for the “sale” (as defined in the California Consumer Privacy Act) of Personal Data Processed by STFC or any of its Subsidiaries.
(db) Notwithstanding anything to Assuming the contrary contained in this Agreementdue authorization, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of execution and delivery thereof by the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of other party or parties thereto, (i) $1,000,000 each STFC Material Contract is a valid and binding obligation of STFC and any of its Subsidiaries party thereto and, to the Knowledge of STFC, each other party or parties thereto, in 2008 for Investment Advisory Arrangement accordance with U.S.-based clients its terms and is in full force and effect, subject to the Bankruptcy and Equity Exception, (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules date hereof, each STFC Material Contract is a description in full force and effect, (iii) STFC and any applicable Subsidiary of STFC is not and, to the Knowledge of STFC, as of the date hereof, no other party thereto is in default in the performance, observation or fulfillment of any “key person” provision pertaining obligation, covenant or condition contained in each STFC Material Contract and (iv) no event has occurred that, with or without notice, lapse of time or both, would constitute a default by STFC or any of its Subsidiaries, or to employees the Knowledge of STFC, as of the date hereof, by any other party thereto, under any STFC Material Contract, except, with respect to each of the foregoing clauses (i), (ii), (iii) and (iv) where such failures to be valid and binding and in full force and effect and defaults would not, individually or in the aggregate, have a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller STFC Material Adverse Effect. STFC has made available to Buyer LMHC a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard formsSTFC Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (State Auto Financial CORP), Merger Agreement
Contracts. (a) Section 4.13(aThe Company has made available to Parent true, correct and complete copies of, all contracts, agreements, commitments, arrangements, leases (including with respect to personal property) and other instruments to which the Company or any of the Seller’s Disclosure Schedules contains its Subsidiaries is a complete and correct list of all of the following Contracts, in effect party as of the date hereof or by which the Company, any of this Agreement, to which a Transferred Entity is a party, its Subsidiaries or any of their respective properties or assets is bound by or subject to, or pursuant to which as of the BGI Business is conducted (the “Specified Contracts”):date hereof which:
(i) any Contract for would be required to be filed by the placement, distribution Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or sale of shares, units or other ownership interests of disclosed by the Company on a Fund that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $5,000,000 in 2009Current Report on Form 8-K;
(ii) any administration agreement contains covenants that limit the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, could materially restrict the ability of the Surviving Corporation) to compete in any material line of business of the Company or any of its Subsidiaries, except for any such contract that may be canceled without any penalty or other Contract for liability to the provision Company or any of administrative services that is reasonably expected to provide for payments to, or provide for payments from a Transferred Entity in 2009 in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity Subsidiaries upon notice of 180 60 days or less;
(iii) any Contract, other than with respect to a Benefit and Compensation Arrangement, that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $10,000,000 in 2009;
(iv) any Contract prohibiting or materially restricting the ability of any Transferred Entity to conduct its business, to engage in any business or operate in any geographical area or to compete with any Person;
(v) any Contract for any joint venture, strategic alliancepartnership, limited liability or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or similar arrangement involving a sharing of profits or expenses or payments based on revenues, profits, or assets under management of any Affiliate of Parent or any Fund joint venture that is reasonably expected to account for revenue to the BGI Business in 2009 in excess of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be material to the Transferred Entitiesbusiness of the Company and the Subsidiaries, taken as a whole;
(viiv) involve any Contract relating to any Indebtedness of a Transferred Entity in an amount in excess of $5,000,000exchange-traded or over-the-counter swap, other than: (A) any mortgage forward, future, option, cap, floor or similar Indebtedness secured by specific property owned by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closing;
(vii) any Contract (including any so-called take-or-pay or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any Transferred Entity in respect of the BGI Business that would reasonably be expected to be material to the Transferred Entities, taken as a wholecollar financial contract, or (B) a Transferred Entity has directly any other interest-rate or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person (other than any Transferred Entity) in each case in excess of $10,000,000;
(viii) any Contract that provides for earn-outs or other similar contingent obligations that would reasonably be expected to result in annual payments in 2009 of $5,000,000 or more;
(ix) any Contract entered into since January 1, 2007 for the acquisition or disposition of a Person or a division of a Person, or for the acquisition or sale of any assets (including Intellectual Property), properties, equity interests or rightsforeign currency protection contract, other than any such sale or acquisition in the ordinary course of business or any such sale or acquisition that would not reasonably be expected to be material to the Transferred Entities, taken as a whole; and
(x) any BGI Affiliate Arrangement that will be in effect after the Closing.
(b) Seller has made available to Buyer prior to the date of this Agreement a complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effect, and is valid and binding on the Transferred Entity that is a party thereto, and, to the Knowledge of Seller, on each other party thereto. There exists no breach or default of any Significant Contract on the part of any Transferred Entity which (with or without notice or lapse of time or both) would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.
(c) As of the date hereof, no Transferred Entity has entered into and is bound by or subject to any of the following:
(i) other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practice, any Contract providing for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000;
(ii) other than Contracts contracts entered into in the ordinary course of business;
(v) relate to (A) indebtedness for borrowed money and having an outstanding principal amount in excess of $50,000,000 or (B) conditional sale arrangements, any type the sale, securitization or servicing of Contract to cap feesloans or loan portfolios, share fees in each case in connection with which the aggregate actual or contingent obligations of the Company and its Subsidiaries under such contract are greater than $50,000,000;
(vi) was entered into after December 31, 2005, involving the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other paymentsequity interests of another person for aggregate consideration under such contract in excess of $50,000,000 (other than acquisitions or dispositions of assets in the ordinary course of business, share expenses, waive fees including acquisitions and dispositions of inventory);
(vii) by its terms calls for aggregate payments by the Company and its Subsidiaries or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material aggregate payments to the Transferred Entities, taken as a whole; orCompany and its Subsidiaries under such contract of more than $25,000,000 over the remaining term of such contract;
(iiiviii) with respect to any acquisition by the Company or its Subsidiaries pursuant to which the Company or any of its Subsidiaries has continuing indemnification, “earn-out” or other contingent payment obligations, in each case, that could result in payments in excess of $25,000,000;
(ix) involve any directors, executive officers or 5% stockholders of the Company that cannot be canceled by the Company within 30 days’ notice without liability, penalty or premium;
(x) involve any labor union or other employee organization, including any works council or foreign trade union or trade association;
(xi) obligate the Company or any of its Subsidiaries to provide indemnification or a guarantee, other than Contracts entered into obligations incurred in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount involve amounts in excess of $5,000,000 individually25,000,000; or
(xii) is an IP License. Each contract of the type described in clauses (i) through (xii) is referred to herein as a “Material Contract”.
(db) Notwithstanding anything to the contrary contained in this AgreementExcept as would not have a Material Adverse Effect, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 each Material Contract is valid and binding on the Company and any Subsidiary of the Company which is a party thereto and, to the Knowledge of the Company, each other party thereto, and is in 2008 for Investment Advisory Arrangement with U.S.-based clients full force and effect and (ii) $5,000,000 in 2008 for the Company and its Subsidiaries have performed and complied with all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) obligations required to be performed or complied with by them under each Material Contract. There is no default under any Material Contract by the Company or any of its Subsidiaries or, to the Knowledge of the Seller’s Disclosure Schedules is Company, by any other party, and no event has occurred that with the lapse of time or the giving of notice or both would constitute a description of default thereunder by the Company or any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support ContractsSubsidiaries, in each case provided or to certain funds and clients the Knowledge of the securities lending or short-term cash businesses of the BGI BusinessCompany, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard formsany other party, except which would not have a Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Freescale Semiconductor Inc), Merger Agreement (Freescale Semiconductor Inc)
Contracts. (a) As of the date hereof, neither the Company nor any of its Subsidiaries is a party to, and none of their respective properties or other assets is subject to, any Contract that is of a nature required to be filed as an exhibit to a report or filing under the Securities Act or the Exchange Act, other than any Contract that is filed as an exhibit to the Filed Company SEC Documents.
(b) Except for Contracts filed in unredacted form as exhibits to the Filed Company SEC Documents, Section 4.13(a3.10(b) of the Seller’s Company Disclosure Schedules contains Letter sets forth a correct and complete and correct list of all of the following Contracts, in effect as of the date of this Agreement, and the Company has made available to which a Transferred Entity is a partyParent correct and complete copies (including all amendments, is bound by modifications, extensions, renewals, guaranties or subject toother Contracts with respect thereto, but excluding certain names, terms and conditions that have been redacted in compliance with applicable Laws governing the sharing of information or pursuant to which the BGI Business is conducted (the “Specified Contracts”):otherwise), of:
(i) all Contracts (other than Contracts of the category required to be disclosed in clause (xiv), clause (xv) or clause (xvi) of this Section 3.10(b), regardless of value) of the Company or any Contract for the placement, distribution or sale of shares, units or other ownership interests of a Fund that is reasonably expected to provide for payments toits Subsidiaries having an aggregate value per Contract, or provide for involving payments fromby or to the Company or any of its Subsidiaries, a Transferred Entity in excess of more than $5,000,000 in 2009750,000 on an annual basis;
(ii) any administration agreement all Contracts to which the Company or any other Contract for the provision of administrative services that its Subsidiaries is reasonably expected to provide for payments toa party, or provide for payments from by which the Company, any of its Subsidiaries or any of its Affiliates is bound, that contain a Transferred covenant restricting the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, would restrict the ability of Parent or any of its Subsidiaries, including the Surviving Entity and its Subsidiaries) to compete in 2009 any business or with any person or in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or lessany geographic area;
(iii) all Contracts of the Company or any Contract, of its Subsidiaries with any Affiliate of the Company (other than a Benefit and Compensation Arrangement, that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess any of $10,000,000 in 2009its Subsidiaries);
(iv) any (A) Contract prohibiting to which the Company or materially restricting any of its Subsidiaries is a party granting any license to Intellectual Property, and (B) other license (other than real estate) having an aggregate value per license, or involving payments by the ability Company or any of any Transferred Entity to conduct its businessSubsidiaries, to engage in any business or operate in any geographical area or to compete with any Personof more than $750,000 on an annual basis;
(v) any Contract for any joint ventureall confidentiality agreements (other than in the ordinary course of business), strategic alliance, partnership agreements by the Company not to acquire assets or similar arrangement involving securities of a sharing third party or agreements by a third party not to acquire assets or securities of profits or expenses or payments based on revenues, profits, or assets under management of any Affiliate of Parent or any Fund that is reasonably expected to account for revenue to the BGI Business in 2009 in excess of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be material to the Transferred Entities, taken as a wholeCompany;
(vi) any Contract relating to any Indebtedness of a Transferred Entity in having an amount in excess of $5,000,000aggregate value per Contract, other than: (A) any mortgage or similar Indebtedness secured by specific property owned involving payments by or to the Company or any of its Subsidiaries, of more than $750,000 on behalf an annual basis that requires consent of or notice to a Client; (B) third party in the event of or with respect to the Merger, including in order to avoid a breach or termination of or loss of benefit under any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closingsuch Contract;
(vii) all joint venture, profit sharing, partnership or other similar agreements involving co-investment with a third party to which the Company or any Contract (including any so-called take-or-pay or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any Transferred Entity in respect of the BGI Business that would reasonably be expected to be material to the Transferred Entities, taken as its Subsidiaries is a whole, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person party (other than any Transferred Entity) such profit sharing or similar agreements entered into in each case in excess the ordinary course of $10,000,000business);
(viii) any Contract or order with or from a Governmental Authority (other than ordinary course Contracts with Governmental Authorities as a customer or as a Provider) which imposes any material obligation or restriction on the Company or its Subsidiaries;
(ix) all leases, subleases, licenses or other Contracts pursuant to which the Company or any of its Subsidiaries use or hold any material property involving payments by or to the Company or any of its Subsidiaries of more than $750,000 on an annual basis;
(x) all material outsourcing Contracts;
(xi) all Contracts with investment bankers, financial advisors, attorneys, accountants or other advisors retained by the Company or any of its Subsidiaries involving payments to be made by or to the Company or any of its Subsidiaries after the date of this Agreement of more than $750,000 on an annual basis;
(xii) all Contracts providing for the indemnification by the Company or any of its Subsidiaries of any person, except for any such Contract that is not material to the Company or any of its Subsidiaries;
(xiii) all Contracts pursuant to which any indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of its Subsidiaries of any indebtedness of any other person (other than the Company or any of its Subsidiaries) (except for such indebtedness or guarantees the aggregate principal amount of which does not exceed $750,000 on an annual basis and excluding trade payables arising in the ordinary course of business);
(i) the largest Contracts of the Company and its Subsidiaries with facilities and capitated Providers (including hospitals and medical groups) in the states of California, Texas, Arizona and Colorado (measured in terms of total projected payments by the Company and its Subsidiaries during the year ending December 31, 2005) that, in the aggregate, represent at least 60% of the total projected 2005 payments by the Company and its Subsidiaries to such Providers in each of such states and (ii) the largest Contracts of the Company and its Subsidiaries with such Providers in the states of Oklahoma, Oregon, Nevada and Washington (measured in terms of total projected payments by the Company and its Subsidiaries during the year ending December 31, 2005) that, in the aggregate, represent at least 50% of the total projected 2005 payments by the Company and its Subsidiaries to such Providers in each of such states (collectively, the "Largest Provider Contracts");
(xv) Contracts of the Company and its Subsidiaries with the 20 largest customers in California and the 10 largest customers in the Other Core States in the aggregate (in each case measured in terms of total projected payments to the Company and its Subsidiaries during the year ending December 31, 2005) (the "Largest Customer Contracts");
(xvi) Contracts of the Company and its Subsidiaries with the 20 largest brokers, the 10 largest general agents and the largest broker for American Medical Security Group, Inc. (measured in terms of total projected payments by the Company and its Subsidiaries during the year ending December 31, 2005) (the "Largest Broker Contracts");
(xvii) any Contract with respect to any risk sharing or risk transfer arrangement or that provides for earn-outs a retroactive premium or other similar contingent obligations that would adjustment or withholding arrangement, pursuant to the terms of which an adjustment, premium, payment or arrangement is reasonably be expected to result therefrom in annual payments in 2009 an amount of $5,000,000 750,000 or more;
(ixxviii) any Contract entered into since January 1, 2007 or policy for reinsurance with third parties;
(xix) any demonstration or pilot or other material Contract with the acquisition or disposition of a Person or a division of a Person, or Centers for the acquisition or sale of any assets Medicare and Medicaid Services (including Intellectual Property), properties, equity interests or rights, other than any such sale or acquisition in the ordinary course of business "CMS") or any such sale or acquisition that would not reasonably be expected to be material to the Transferred Entities, taken as a wholesuccessor thereto; and
(xxx) any BGI Affiliate Arrangement that will be in effect after Contract with the ClosingOffice of Personnel Management, or any successor thereto.
(b) Seller has made available to Buyer prior to the date of this Agreement a complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified ContractNone of the Company or any of its Subsidiaries (x) is, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract or has received written notice or has Knowledge that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effect, and is valid and binding on the Transferred Entity that is a party thereto, and, to the Knowledge of Seller, on each any other party thereto. There exists no to any of its Contracts is, in violation or breach of or default of any Significant Contract on the part of any Transferred Entity which (with or without notice or lapse of time or both) wouldunder, or (y) has waived or failed to enforce any rights or benefits under, any Contract to which it is a party or any of its properties or other assets is subject, and (ii) to the Knowledge of the Company, there has occurred no event giving to others any right of termination, amendment or cancellation of (with or without notice or lapse of time or both) any such Contract except for violations, breaches, defaults, waivers or failures to enforce rights or benefits covered by clauses (i) or (ii) above that individually or in the aggregate, aggregate have not had and would not reasonably be expected to be material to the Transferred Entities, taken as have a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a wholeCompany Material Adverse Effect.
(c) As of the date hereof, no Transferred Entity has entered into and is bound by or subject to any of the following:
(i) other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practice, any Contract providing for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000;
(ii) other than Contracts entered into in the ordinary course of business, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a whole; or
(iii) other than Contracts entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individually.
(d) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard forms.
Appears in 2 contracts
Sources: Merger Agreement (Unitedhealth Group Inc), Merger Agreement (Pacificare Health Systems Inc /De/)
Contracts. (a) Section 4.13(a4.15(a) of the Seller’s Company Disclosure Schedules contains a complete and correct list of all of Letter lists the following Contracts, in effect as of the date of this Agreement, Contracts to which a Transferred Entity the Company or any of its Subsidiaries is a party, is bound by or subject to, or pursuant to which the BGI Business is conducted (the “Specified Contracts”)::
(i) each "material contract" (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) to which the Company or any Contract for the placement, distribution of its Subsidiaries is a party to or sale of shares, units or other ownership interests of a Fund that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $5,000,000 in 2009bound;
(ii) any administration agreement each Contract not contemplated by this Agreement that limits the ability of the Company or any other Contract for the provision of administrative services that is reasonably expected its Subsidiaries or Affiliates to provide for payments to, engage in or provide for payments from a Transferred Entity compete with any line of business in 2009 any location or with any Person in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or lessany material manner;
(iii) each Contract that creates a partnership, joint venture or any Contract, other than a Benefit and Compensation Arrangement, that is reasonably expected strategic alliance with respect to provide for payments to, the Company or provide for payments from, a Transferred Entity in excess any of $10,000,000 in 2009its Subsidiaries;
(iv) any each employment, consulting, services or similar Contract prohibiting or materially restricting the ability of any Transferred Entity to conduct its business, to engage in any business or operate in any geographical area or to compete with any Personemployee or independent contractor of the Company or any of its Subsidiaries involving more than $100,000 of annual compensation;
(v) any each indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage or other evidence of Indebtedness or Contract providing for any joint venture, strategic alliance, partnership or similar arrangement involving a sharing of profits or expenses or payments based on revenues, profits, or assets under management of any Affiliate of Parent or any Fund that is reasonably expected to account for revenue to the BGI Business in 2009 Indebtedness individually in excess of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be material to the Transferred Entities, taken as a whole1,000,000;
(vi) each Contract entered into since January 1, 2016 that relates to the acquisition or disposition, directly or indirectly, of any Contract relating to business (whether by merger, sale of stock, sale of assets or otherwise) or any Indebtedness of a Transferred Entity in an amount in excess of $5,000,000material assets, including any vessel (other than: than (A) any mortgage this Agreement or similar Indebtedness secured by specific property owned by or on behalf of a Client; (B) acquisitions or dispositions of supplies, inventory, merchandise or products (other than vessels) in the ordinary course of business or that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries), including also any Indebtedness solely between Transferred Entities; such Contract whenever entered into that includes provisions that remain in effect in respect of"earn-outs" or (C) any Indebtedness for which no Transferred Entity will be liable following the Closingdeferred or contingent consideration;
(vii) any Contract (including any soeach ship-called take-or-pay or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtednesssales, liabilities or obligations memorandum of any Transferred Entity in respect of the BGI Business that would reasonably be expected to be material to the Transferred Entitiesagreement, taken as a wholebareboat charter, or (B) a Transferred Entity has directly other vessel acquisition Contract entered into since January 1, 2016 for Newbuildings and secondhand vessels contracted for by the Company or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities any of any Person its Subsidiaries (other than Company Owned Vessels) and other Contracts entered into since January 1, 2016 with respect to Newbuildings of the Company or any Transferred Entity) in each case in excess of $10,000,000its Subsidiaries and the financing thereof, including performance guarantees, counter guarantees, refund guarantees, supervision agreements and plan verification services agreements;
(viii) each pool agreement, management agreement, crewing agreement or financial lease (including sale/leaseback or similar arrangements) with respect to any Contract that provides for earn-outs or other similar contingent obligations that would reasonably be expected to result in annual payments in 2009 of $5,000,000 or moreCompany Vessel;
(ix) any Contract with a Third Party for the charter of any Company Vessel;
(x) each collective bargaining agreement or other Contract with a labor union to which the Company or any of its Subsidiaries is a party or otherwise bound;
(xi) each Contract that provides for indemnification by the Company or any of its Subsidiaries to any Person other than a Contract entered into since January 1, 2007 for the acquisition or disposition of a Person or a division of a Person, or for the acquisition or sale of any assets (including Intellectual Property), properties, equity interests or rights, other than any such sale or acquisition in the ordinary course of business business;
(xii) each Contract pursuant to which the Company or any such sale of its Subsidiaries spent or acquisition received, in the aggregate, more than $500,000 during the twelve (12) months prior to the date hereof or could reasonably be expected to spend or receive, in the aggregate, more than $500,000 during the twelve (12) months immediately after the date hereof;
(xiii) each Contract to which the Company or any of its Subsidiaries is a party or otherwise bound that contains a so-called"most favored nations" provision or similar provisions requiring the Company or its Affiliates to offer to a Person any terms or conditions that are at least as favorable as those offered to one or more other Persons; and
(xiv) each Contract involving a standstill or similar obligation of the Company or any of its Subsidiaries.
(b) The Company has heretofore made available to Parent true and complete copies of the Material Contracts as in effect as of the date hereof. Except as set forth on Section 4.15(b ) of the Company Disclosure Letter or would not reasonably be expected to be material to the Transferred EntitiesCompany and its Subsidiaries, taken as a whole; and
(x) any BGI Affiliate Arrangement that will be in effect after the Closing.
(b) Seller has made available to Buyer prior to the date of this Agreement a complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contracteach of the Material Contracts is valid, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis binding, enforceable and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effecteffect with respect to the Company and its Subsidiaries, and is valid and binding on the Transferred Entity that is a party thereto, and, to the Knowledge of Sellerthe Company, on each the other party parties thereto. There exists no breach or default of any Significant Contract on the part of any Transferred Entity which (with or without notice or lapse of time or both) would, individually or in the aggregate, reasonably be expected to be material except to the Transferred Entities, taken as a whole. No Transferred Entity has received extent that the enforceability thereof may be limited by the Equitable Exceptions and except for any written notice of an intention to terminate, not to renew Material Contracts that have expired or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.
(c) As of been terminated after the date hereofhereof in accordance with its terms, no Transferred Entity has entered into and is bound by or subject to any of the following:
(i) other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practice, any Contract providing for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000;
(ii) other than Contracts entered into in the ordinary course of business, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a whole; or
(iii) other than Contracts entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individually.
(d) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) neither the Company nor any of its Subsidiaries, nor to the Knowledge of the Seller’s Disclosure Schedules is a description of Company any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments other party to a Transferred Entity in excess Material Contract, has violated any provision of, or taken or failed to take any act which, with or without notice, lapse of $10,000,000 in 2009.
(g) Seller has made available time, or both, would constitute a breach or default under, or give rise to Buyer a true any right of cancellation or termination of or consent under, such Material Contract, and complete copy neither the Company nor any of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support ContractsSubsidiaries has received written notice that it has breached, in each case provided to certain funds and clients of the securities lending violated or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard formsdefaulted under any Material Contract.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Euronav NV), Agreement and Plan of Merger (Euronav NV)
Contracts. (a) Section 4.13(a) of the Seller’s The Disclosure Schedules contains a complete and correct list of Schedule lists all of the following Contracts, in effect as Assigned Contracts and each of the date of this Agreement, following contracts or agreements to which a Transferred Entity any of the Sellers is a party, is bound by party and that relate exclusively or subject to, or pursuant primarily to which the BGI Business is conducted (the “Specified Contracts”):Business:
(i) any Contract each agreement (or group of related agreements with the same party) for the placement, distribution lease of personal property from or sale to third parties providing for lease payments the remaining unpaid balance of shares, units or other ownership interests of a Fund that which is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $5,000,000 in 20095,000;
(ii) any administration each agreement (or any other Contract group of related agreements with the same party) for the provision purchase of administrative products or services that under which the undelivered balance of such products and services is reasonably expected to provide for payments to, or provide for payments from a Transferred Entity in 2009 in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or less5,000;
(iii) each agreement (or group of related agreements with the same party) which involves payments to be made to any Contract, other than a Benefit and Compensation Arrangement, that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity of the Sellers in excess of $10,000,000 in 2009;
(iv) any Contract prohibiting 5,000, either pursuant to a contract with a customer or materially restricting the ability of any Transferred Entity to conduct its business, to engage in any business or operate in any geographical area or to compete with any Person;
(v) any Contract for any joint venture, strategic alliance, partnership or similar arrangement involving a sharing of profits or expenses or payments based on revenues, profits, or assets under management of any Affiliate of Parent or any Fund that is reasonably expected to account for revenue to the BGI Business in 2009 in excess of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be material to the Transferred Entities, taken as a whole;
(vi) any Contract relating pursuant to any Indebtedness of a Transferred Entity in an amount in excess of $5,000,000, other than: (A) any mortgage contract or similar Indebtedness secured by specific property owned by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closing;
(vii) any Contract (including any so-called take-or-pay or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any Transferred Entity in respect of the BGI Business that would reasonably be expected to be material to the Transferred Entities, taken as a whole, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person (other than any Transferred Entity) in each case in excess of $10,000,000;
(viii) any Contract that provides for earn-outs or other similar contingent obligations that would reasonably be expected to result in annual payments in 2009 of $5,000,000 or more;
(ix) any Contract entered into since January 1, 2007 agreement for the acquisition or disposition of a Person or a division of a Person, or for the acquisition or sale of any assets (including Intellectual Property), properties, equity interests or rights, other than any such sale or acquisition in the ordinary course goods and services outside of business or any such sale or acquisition that would not reasonably be expected to be material to the Transferred Entities, taken as a whole; and
(x) any BGI Affiliate Arrangement that will be in effect after the Closing.
(b) Seller has made available to Buyer prior to the date of this Agreement a complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effect, and is valid and binding on the Transferred Entity that is a party thereto, and, to the Knowledge of Seller, on each other party thereto. There exists no breach or default of any Significant Contract on the part of any Transferred Entity which (with or without notice or lapse of time or both) would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.
(c) As of the date hereof, no Transferred Entity has entered into and is bound by or subject to any of the following:
(i) other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practice, any Contract providing for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000;
(ii) other than Contracts entered into in the ordinary course of business, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a whole; or
(iii) other than Contracts entered into in the ordinary course of business consistent with past practice;
(iv) each agreement for the acquisition of any operating business, whether by merger, stock purchase or asset purchase, except for any such business which did not become a part of the Business;
(v) each agreement establishing a partnership or joint venture;
(vi) each agreement (or group of related agreements with the same party) under which it has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness the outstanding balance of which is more than $5,000 or under which it has imposed a Security Interest on any of the Acquired Assets;
(vii) each agreement that restricts where any of the Sellers may conduct the Business, the type or line of business in which the Business may engage or the parties with whom any of the Sellers may engage in the Business;
(viii) each agreement involving the compensation of the Business Employees; and
(ix) each severance, “stay pay” or termination agreement relating to a Business Employee; provided, however, that no agreement referred to in clauses (i) through (ix) above need be disclosed unless any of the Sellers currently has, or may in the future have, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital rights or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individuallyobligations thereunder.
(db) Notwithstanding anything The Sellers have made available to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) Buyer a complete and accurate copy of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any each Designated Contract that is an Assigned Contract or has been requested by the Buyer. Each Designated Contract is a valid and binding obligation of each the Sellers that is a Party thereto and, to the knowledge of the Sellers, of each other party thereto, except for any such failure to be valid and binding that neither is, nor would reasonably be expected to provide for payments be, material to a Transferred Entity in excess of $10,000,000 in 2009the Business.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard forms.
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (I Many Inc)
Contracts. (a) Section Company Disclosure Schedule 4.13(a) of the Seller’s Disclosure Schedules contains a complete and correct list of all of the following Contractslists, in effect as of the date of this Agreement, to which each Contract that is of a Transferred Entity is a party, is bound by or subject to, or pursuant to which the BGI Business is conducted (the “Specified Contracts”):type described below:
(i) any Contract to which the Company or any of the Company Subsidiaries is a party relating to indebtedness for the placementborrowed money (other than intercompany indebtedness) or capital leases (in each case, distribution whether incurred, assumed, guaranteed or sale of shares, units or other ownership interests of a Fund that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity secured by any asset) in excess of $5,000,000 in 2009250,000;
(ii) any administration agreement Contract with, respectively, the thirty (30) largest customers and thirty 30 largest suppliers (measured by dollar volume of purchases or any other Contract for sales, respectively) of the provision of administrative services that is reasonably expected to provide for payments toCompany and the Company Subsidiaries during the fiscal year ended March 31, or provide for payments from a Transferred Entity in 2009 in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or less2013;
(iii) any ContractContract to which the Company or any of the Company Subsidiaries is a party granting a right of first refusal, other than a Benefit and Compensation Arrangement, that is reasonably expected right of first offer or similar preferential right to provide for payments to, purchase or provide for payments from, a Transferred Entity in excess acquire any of $10,000,000 in 2009the Company’s or any of the Company Subsidiaries’ capital stock or assets;
(iv) any Contract prohibiting or materially restricting the ability of any Transferred Entity to conduct its businessthat, to the Company’s Knowledge, (i) purports to limit either the type of business in which the Company or any of the Company Subsidiaries (or, after the Effective Time, Parent or any of its Subsidiaries) may engage or the manner or locations in which any of them may so engage in any business, (ii) requires the disposition of any assets or line of business of the Company or operate any of its Subsidiaries (or, after the Effective Time, Parent or its Subsidiaries), (iii) grants “most favored nation” status that, following the Merger, would apply to Parent and its Subsidiaries, including the Company and any of the Company Subsidiaries or (iv) prohibits or limits the right of the Company or any of the Company Subsidiaries to make, sell or distribute any products or services (other than customary employee non-solicitation provisions entered into in the Ordinary Course), except, in each case in the foregoing clauses (i) through (iv), for any geographical area or such Contract that is not material to compete with any Personthe Company and the Company Subsidiaries taken as a whole;
(v) any Contract for to which the Company or any joint venture, strategic alliance, of the Company Subsidiaries is a party with respect to any partnership or similar arrangement involving a sharing of profits or expenses or payments based on revenues, profits, or assets under management of any Affiliate of Parent other joint venture in which the Company or any Fund that is reasonably expected to account for revenue to Company Subsidiary has an ownership interest (other than a Contract solely between the BGI Business in 2009 in excess of $10,000,000 Company or a Company Subsidiary, on an annual (the one hand, and one or annualized) basis or that would reasonably be expected to be material to more Company Subsidiaries, on the Transferred Entities, taken as a wholeother hand);
(vi) any Contract relating pursuant to which the Company or any Indebtedness of the Company Subsidiaries has an option or right to purchase the assets or securities of another Person (not including purchases of raw materials, equipment and inventory in the Ordinary Course) that would entail a Transferred Entity in an amount payment in excess of $5,000,000, other than: (A) any mortgage or similar Indebtedness secured by specific property owned by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following 2,500,000 in the Closingaggregate;
(vii) any Contract (including that obligates the Company or any so-called take-or-pay or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any Transferred Entity in respect of the BGI Business that would reasonably be expected Company Subsidiaries to be make any earn-out payments of a material to the Transferred Entities, taken as a whole, amount based on future performance of an acquired business or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person (other than any Transferred Entity) in each case in excess of $10,000,000assets;
(viii) any Contract to which the Company or any of the Company Subsidiaries is a party containing a standstill or similar agreement pursuant to which one party has agreed not to acquire the assets or securities of the other party or any of its Affiliates, or a put, call or similar right pursuant to which the Company or any of its Subsidiaries could be required to purchase or sell, as applicable, any equity interests of any Person or assets that provides for earn-outs have a fair market value or other similar contingent obligations that would reasonably be expected to result in annual payments in 2009 purchase price of more than $5,000,000 or more1,000,000;
(ix) any Contract entered into since January 1between the Company and its Subsidiaries, 2007 for on the acquisition one hand, and any director or disposition officer of a Person or a division of a Person, or for the acquisition or sale of any assets (including Intellectual Property), properties, equity interests or rights, other than any such sale or acquisition in the ordinary course of business Company or any such sale Person beneficially owning five percent (5%) or acquisition that would not reasonably be expected to be material to more of the Transferred Entitiesoutstanding Shares, taken as a whole; andon the other hand, excluding Benefit Plans;
(x) any BGI Affiliate Arrangement that will be in effect after Contract providing for indemnification by the Closing.
(b) Seller has made available to Buyer prior to Company or any of the date Company Subsidiaries of this Agreement a complete and correct copy of each written Specified Contract (any Person, except in certain instances for any such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (iix) and (iii) being the “Significant Contracts”) is in full force and effect, and is valid and binding on the Transferred Entity that is a party thereto, and, to the Knowledge of Seller, on each other party thereto. There exists no breach or default of any Significant Contract on the part of any Transferred Entity which (with or without notice or lapse of time or both) would, individually or in the aggregate, reasonably be expected to be not material to the Transferred Entities, taken as a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew Company or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.
(c) As of the date hereof, no Transferred Entity has entered into and is bound by or subject to any of the following:
Company Subsidiaries as a whole or (iy) other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practiceOrdinary Course; and
(xi) any material Contract for the license of, or containing any covenant not to ▇▇▇ or waiver or release under, any Contract providing Intellectual Property granted to or from the Company (excluding commercial off-the-shelf for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent shrink wrap software that has not been materially modified or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000;
(ii) other than Contracts entered into in the ordinary course of business, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a whole; or
(iii) other than Contracts entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individuallycustomized).
(d) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard forms.
Appears in 2 contracts
Sources: Merger Agreement (Consolidated Graphics Inc /Tx/), Merger Agreement (RR Donnelley & Sons Co)
Contracts. (a) Section 4.13(a) 3.11 of the Seller’s Cabot Disclosure Schedules contains a complete and correct list Schedule lists as of all the date of this Agreement each of the following written Contracts to which Cabot or any of its Subsidiaries is a party or any of their respective assets are bound, in each case, with respect to the Cabot Business (it being understood that Section 3.11 of the Cabot Disclosure Schedule does not list any Contract that is a Benefit Plan, any programming Contract or any Contract that constitutes an Excluded Asset):
(i) any Contract relating to the use of any microwave or satellite transmission facilities providing for aggregate payments in excess of $10,000,000 annually;
(ii) any indefeasible right of use or other fiber or cable lease or use agreement providing for aggregate payments in excess of $10,000,000 annually;
(iii) any Contract for the purchase or sale of real property or any option to purchase or sell real property, in either case providing for aggregate payments in an amount exceeding $25,000,000;
(iv) any Contract (A) requiring payments by Cabot or any Subsidiary thereof, individually or in the aggregate with respect to such Contract, in excess of $25,000,000 annually or (B) pursuant to which third parties are required to pay to Cabot or any of its Subsidiaries, individually or in the aggregate with respect to such Contract, in excess of $25,000,000, in each case other than those that are terminable by Cabot or any of its Subsidiaries on ninety (90) days’ notice or less without obligation to make any material payment;
(v) any Contract that (A) contains any (1) “most favored nation” or similar provision in favor of a Person other than Cabot or any of its Subsidiaries or, after the Closing, any of their Affiliates; (2) provision expressly requiring Cabot or any of its Subsidiaries or, after the Closing, any of their Affiliates to purchase goods or services exclusively from another Person; (3) express restriction on the ability of Cabot or any of its Subsidiaries or, after the Closing, any of the Affiliates of Cabot or the Transferred Subsidiaries, to compete in any business or any geographic area; (4) arrangement whereby Cabot or any of its Subsidiaries or, after the Closing, any of their Affiliates grants any right of first refusal or right of first offer or similar right to a third party; or (5) arrangement between Cabot or any of its Subsidiaries and a third party that limits or purports to limit in any respect the ability of Cabot or its Subsidiaries (or after the Closing, any of the Affiliates of Cabot or the Transferred Subsidiaries) to own, operate, sell, license, transfer, pledge or otherwise dispose of any material assets or business, (B) either (1) in the case of clauses (A)(1), (2) and (4) provides for payments in excess of $25,000,000 annually or (2) in the case of clauses (A)(3) and (A)(5), has and will have more than a de minimis impact on the Cabot Business (and after the Closing, the other businesses of Columbus and its Subsidiaries) and (C) is not terminable by Cabot or any of its Subsidiaries on ninety (90) days’ notice or less without the obligation to make any material payment due to such termination;
(vi) any Contract pursuant to which Cabot or any of its Subsidiaries has incurred or become liable for any Indebtedness with a principal or committed amount of more than $25,000,000;
(vii) any Contract pursuant to which Cabot or any of its Subsidiaries has continuing indemnification, guarantee, “earn-out” or other contingent payment obligations, in each case that are reasonably expected to result in payments, individually or in the aggregate, in excess of $25,000,000;
(viii) any Contract pursuant to which Cabot or any of its Subsidiaries is a party and licenses any Intellectual Property Rights material to the conduct of the Cabot Business or licenses out any Cabot Owned Intellectual Property Rights material to the conduct of the Cabot Business, other than Contracts (A) in which grants of Intellectual Property Rights are incidental and not material to such Contracts, in effect and (B) for software that is generally commercially available or that is subject to “shrink-wrap” or “click-through” license agreements, or that is pre-installed as a standard part of hardware purchased by Cabot or any of its Subsidiaries;
(ix) any settlement, conciliation or similar agreement involving future performance by Cabot or any of its Subsidiaries (A) with any Government Entity (other than any Tax settlements, conciliations or similar agreements or any non-material other settlements, conciliations or similar agreements) or (B) which would require Cabot or any of its Subsidiaries to pay consideration of more than $10,000,000 after the date of this Agreement;
(x) any interest rate, currency or other swap or derivative transaction;
(xi) any Contract pursuant to which Cabot or any Subsidiary has agreed, as of the date of this Agreement, to which a Transferred Entity is a party, is bound by acquire or subject to, or pursuant to which the BGI Business is conducted (the “Specified Contracts”):
(i) any Contract for the placement, distribution or sale dispose of shares, units or other ownership interests of a Fund that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $5,000,000 in 2009;
(ii) any administration agreement or any other Contract for the provision of administrative services that is reasonably expected to provide for payments to, or provide for payments from a Transferred Entity in 2009 in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or less;
(iii) any Contract, other than a Benefit and Compensation Arrangement, that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $10,000,000 in 2009;
(iv) any Contract prohibiting or materially restricting the ability of any Transferred Entity to conduct its business, to engage in any business or operate in any geographical area or to compete with any Person;
(v) any Contract for any joint venture, strategic alliance, partnership or similar arrangement involving a sharing of profits or expenses or payments based on revenues, profits, or assets under management of any Affiliate of Parent or any Fund that is reasonably expected to account for revenue to the BGI Business in 2009 in excess of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be material to the Transferred Entities, taken as a whole;
(vi) any Contract relating to any Indebtedness of a Transferred Entity in an amount in excess of $5,000,000, other than: (A) any mortgage Cabot System, headend, subscriber, Person, business or similar Indebtedness secured by specific property owned by all or on behalf substantially all the assets of a Client; any Person or business or (B) any Indebtedness solely between Transferred Entities; or other assets other than, in the case of this clause (CB) any Indebtedness for which no Transferred Entity will be liable following only, in the Closing;
(vii) any Contract (including any so-called take-Ordinary Course or-pay or keep well agreements) under which , in the case of each of clauses (A) any Person has directly or indirectly guaranteed or assumed Indebtednessand (B), liabilities or obligations (x) with respect to acquisitions described in clause (A), for consideration of any Transferred Entity less than $25,000,000 and (y) with respect to acquisitions described in respect of the BGI Business that would reasonably be expected to be material to the Transferred Entities, taken as a whole, or clause (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible and dispositions, for Indebtedness or liabilities consideration of any Person (other less than any Transferred Entity) in each case in excess of $10,000,000;
(viiixii) any partnership, limited liability company, operating, joint venture or substantially similar Contract relating to any Person that provides for earn-outs or other similar contingent obligations that would reasonably be expected to result in annual payments in 2009 of $5,000,000 or more;
(ix) any Contract entered into since January 1, 2007 for the acquisition or disposition of a Person or a division of a Person, or for the acquisition or sale of any assets (including Intellectual Property), properties, equity interests or rights, other than any such sale or acquisition in the ordinary course of business is not wholly owned by Cabot or any such sale of its Subsidiaries that (A) relates to any Minority Interest that is a Cabot Asset or acquisition that would not reasonably be expected to be (B) is material to the Transferred Entities, taken as a wholeoperation of the Cabot Business; and
(xxiii) any BGI Affiliate Arrangement Contract between Cabot or any Subsidiary, on the one hand, and any of their Affiliates, on the other hand, that will is material to the operation of the Cabot Business. The Contracts required to be set forth in effect after the Closingforegoing clauses (i) through (xiii) are referred to herein as the “Cabot Material Contracts.”
(b) Seller has made available to Buyer prior to the date of this Agreement a complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld Except as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effect, and is valid and binding on the Transferred Entity that is a party thereto, and, to the Knowledge of Seller, on each other party thereto. There exists no breach or default of any Significant Contract on the part of any Transferred Entity which (with or without notice or lapse of time or both) wouldwould not, individually or in the aggregate, reasonably be expected to be material to the Transferred Entitieshave a Cabot Material Adverse Effect, taken as a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant each Cabot Material Contract, Cabot Lease, Cabot Demising Lease and Cabot Material Pole Attachment Contract is valid and binding on Cabot or the terminationapplicable Subsidiary, failure as the case may be, and, to renew Cabot’s Knowledge, on the other parties thereto, and is in full force and effect and is enforceable against Cabot Parent or challenge its applicable Subsidiary, as the case may be, except insofar as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Laws now or hereafter in effect affecting creditors’ rights generally, or by principles governing the availability of which wouldequitable remedies. Neither Cabot Parent nor its Subsidiaries is in breach of or default under any Cabot Material Contract, Cabot Lease, Cabot Demising Lease or Cabot Material Pole Attachment Contract, and, to Cabot’s Knowledge, no event or circumstance has occurred which, with notice, lapse of time or both, would constitute a default or breach by Cabot Parent or any of its Subsidiaries under any Cabot Material Contract, Cabot Lease, Cabot Demising Lease or Cabot Material Pole Attachment Contract, except for any such breaches or defaults that, individually or in the aggregate, have not had and would not reasonably be expected to be material have a Cabot Material Adverse Effect. As of the date of this Agreement, neither Cabot Parent nor any of its Subsidiaries has received any written notice of any such default or breach (other than notices of matters that have been resolved prior to the Transferred Entitiesdate hereof without continuing material Liability to Cabot Parent or any of its Subsidiaries) and, taken to Cabot’s Knowledge, there does not exist any default or breach, and no event or circumstance has occurred which, with notice, lapse of time or both, would constitute a default or breach, under any Cabot Material Contract, Cabot Lease, Cabot Demising Lease or Cabot Material Pole Attachment Contract by any party thereto other than Cabot Parent or any of its Subsidiaries, except for any such breaches or defaults that, individually or in the aggregate, have not had and would not reasonably be expected to have a Cabot Material Adverse Effect. True, correct and complete copies of all Cabot Material Contracts as a wholein effect as of the date of this Agreement have been made available to Columbus.
(c) As None of the date hereof, no Transferred Entity has entered into and is bound by material programming agreements applicable solely to the Cabot Systems contains any “forced assignment” provisions requiring Cabot or subject to any of the following:
(i) other than investment management and distribution Contracts entered into in Transferred Subsidiaries to require successors to assume the ordinary course of business consistent with past practice, any Contract providing for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000;
(ii) other than Contracts entered into in the ordinary course of business, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any obligations under such case would be material to the Transferred Entities, taken as a whole; or
(iii) other than Contracts entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individuallyprogramming agreements.
(d) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard forms.
Appears in 2 contracts
Sources: Transaction Agreement (Cco Holdings LLC), Transaction Agreement (Cco Holdings LLC)
Contracts. (a) Neither the Company nor any of its Subsidiaries is a party to or bound by any contract, agreement or other instrument or obligation (written or oral), other than those (x) identified in Section 4.13(a3.13 (a) of the Seller’s Company Disclosure Schedules contains a complete and correct list Schedule or (y) under which neither the Company nor any of all of the following Contracts, in effect as of the date of this Agreement, to which a Transferred Entity is a party, is bound by its Subsidiaries has any remaining liabilities or subject to, obligations (whether actual or pursuant to which the BGI Business is conducted (the “Specified Contracts”contingent):
(i) any Contract for the placement, distribution or sale of shares, units or other ownership interests of a Fund that is reasonably expected or would be required to provide for payments to, or provide for payments from, be filed by the Company as a Transferred Entity in excess “material contract” pursuant to Item 601(b)(10) of $5,000,000 in 2009Regulation S-K under the Securities Act;
(ii) any administration agreement relating to the incurring of Indebtedness by the Company or any other Contract for the provision of administrative services that is reasonably expected to provide for payments to, or provide for payments from a Transferred Entity in 2009 in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or less;
(iii) any Contract, other than a Benefit and Compensation Arrangement, that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $10,000,000 in 2009;
(iv) any Contract prohibiting or materially restricting the ability of any Transferred Entity to conduct its business, to engage in any business or operate in any geographical area or to compete with any Person;
(v) any Contract for any joint venture, strategic alliance, partnership or similar arrangement involving a sharing of profits or expenses or payments based on revenues, profits, or assets under management of any Affiliate of Parent or any Fund that is reasonably expected to account for revenue to the BGI Business in 2009 in excess of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be material to the Transferred Entities, taken as a whole;
(vi) any Contract relating to any Indebtedness of a Transferred Entity Subsidiaries in an amount in excess of $5,000,000500,000 in the aggregate;
(iii) with any Affiliate of the Company (other than any such contract, agreement or other than: instrument or obligation (A) any mortgage entered into with a Subsidiary which is a direct or similar Indebtedness secured by specific property indirect wholly owned by or on behalf Subsidiary of a Client; the Company, (B) any Indebtedness solely between Transferred Entities; or that provides only for standard employee benefit generally made available to all employees of the Company and its Subsidiaries, (C) that provides only for purchase of shares of the Company’s common stock and/or the issuance of options to purchase shares of the Company’s common stock, in each case as approved by the Board of Directors of the Company or its Compensation Committee or (D) the Stockholder Agreement and other similar agreements executed in connection with the Transactions);
(iv) containing any Indebtedness for non-competition, exclusive dealing or other similar agreement, commitment, or obligation that has, or would reasonably be expected to result in, the effect of prohibiting or impairing the conduct of the business of the Company or any of its Subsidiaries as currently conducted and as currently proposed to be conducted;
(v) under which no Transferred Entity will the Company or any Subsidiary is now, or following the Effective Time Parent or any of Parent’s Affiliates (including without limitation the Company or any of its Subsidiaries) would be, restricted from selling, licensing or otherwise distributing any of their respective technology or products, or providing services to, customers or potential customers or any class of customers, in any geographic area, during any period of time or any segment of the market or line of business;
(vi) containing a “most favored nation” clause or other term providing preferential pricing or treatment to a third party other than pricing discounts given to customers in the ordinary course of business consistent with past practice;
(vii) under which a third party would be liable entitled to receive a license or any other right to intellectual property of Parent or any of Parent’s Affiliates following the Closing;
(viiviii) providing for any Contract (including any so-called take-or-pay payments that are conditioned, in whole or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtednessin part, liabilities or obligations on a change of any Transferred Entity in respect control of the BGI Business that would reasonably be expected to be material to the Transferred Entities, taken as a whole, Company or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities any of any Person (other than any Transferred Entity) in each case in excess of $10,000,000;
(viii) any Contract that provides for earn-outs or other similar contingent obligations that would reasonably be expected to result in annual payments in 2009 of $5,000,000 or moreits Subsidiaries;
(ix) providing a license to any Contract entered into since January 1, 2007 third party for the acquisition right to use or disposition reproduce any Company Intellectual Property except agreements with customers or other end-user customers of a Person or a division of a Person, or for the acquisition or sale of any assets (including Intellectual Property), properties, equity interests or rights, other than any such sale or acquisition in the ordinary course of business Company or any such sale or acquisition that would not reasonably be expected to be material to the Transferred Entities, taken as a whole; and
(x) any BGI Affiliate Arrangement that will be in effect after the Closing.
(b) Seller has made available to Buyer prior to the date of this Agreement a complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effect, and is valid and binding on the Transferred Entity that is a party thereto, and, to the Knowledge of Seller, on each other party thereto. There exists no breach or default of any Significant Contract on the part of any Transferred Entity which (with or without notice or lapse of time or both) would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.
(c) As of the date hereof, no Transferred Entity has entered into and is bound by or subject to any of the following:
(i) other than investment management and distribution Contracts its Subsidiaries entered into in the ordinary course of business consistent with past practice, any Contract providing for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000;
(iix) other than Contracts entered into in the ordinary course of businessproviding licenses, any type of Contract to cap fees, share fees sublicenses or other payments, share expenses, waive fees agreements pursuant to which the Company or any of its Subsidiaries is authorized to reimburse or assume use any or all fees or expenses thereunder third party Intellectual Property that in any such case would be is material to the Transferred EntitiesCompany and its Subsidiaries, taken as a whole, excluding any non-exclusive, generally commercially available, off-the-shelf software programs;
(xi) pursuant to which the Company or any of its Subsidiaries leases any real property to or from a third party; or
(iiixii) other than relating to the manufacturing or supply of any material item used by the Company or a Subsidiary that is a single or sole source of manufacturing or supply. (such contracts set forth in Section 3.13(a) of the Company Disclosure Schedule, otherwise described in clauses (i) through (xii), or set forth in the exhibit index of the Company’s Annual Report on Form 10-K for the fiscal year ended June 30, 2007, the “Company Material Contracts”). Complete and accurate copies of all Company Material Contracts have heretofore been furnished to Parent. Neither the Company nor any of its Subsidiaries has entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest transaction with any other Person, (B) Affiliate of the Company or any of its Subsidiaries or any transaction that would be subject to provide seed capital or similar investment or (C) proxy statement disclosure pursuant to invest Item 404 of Regulation S-K that has not been disclosed in any investment product, in each case in an amount in excess of $5,000,000 individuallya Company SEC Document.
(db) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached Except as Section 4.13(e) of the Seller’s Disclosure Schedules is would not have a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of Material Adverse Effect: (i) $1,000,000 neither the Company nor any Subsidiary of the Company is in 2008 for Investment Advisory Arrangement with U.S.-based clients breach of or default under the terms of any Company Material Contract (nor does there exist any condition which, upon the passage of time or the giving of notice or both, would cause such a breach of or default under); and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) to the Knowledge of the Seller’s Disclosure Schedules Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract (nor does there exist any condition which, upon the passage of time or the giving of notice or both, would cause such a breach of or default under). Each Company Material Contract is a description valid and binding obligation of any “key person” provision pertaining the Company or the Subsidiary of the Company which is party thereto and, to employees the Knowledge of a Transferred Entity the Company, of each other party thereto, and is in any Contract that is reasonably expected full force and effect, except that: (A) such enforcement may be subject to provide for payments applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws, now or hereafter in effect, relating to a Transferred Entity in excess creditors’ rights generally; and (B) equitable remedies of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true specific performance and complete copy of its form of counterparty security lending (borrower default) indemnity Contract injunctive and its other forms of cash fund capital support Contracts, in each case provided equitable relief may be subject to certain funds equitable defenses and clients to the discretion of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard formscourt before which any proceeding therefor may be brought.
Appears in 2 contracts
Sources: Merger Agreement (Teradyne, Inc), Merger Agreement (Nextest Systems Corp)
Contracts. (a) Section 4.13(a4.14(a) of the Seller’s Company Disclosure Schedules contains a complete and correct list of all of the following ContractsSchedule lists, in effect as of the date of this Agreement, each Contract that (i) is of a type that would be required to which a Transferred Entity is a partybe filed with the SEC as an exhibit to the SEC Documents pursuant to Paragraph (2), is bound by (4) or subject to(10) of Item 601(b) of Regulation S-K under the Securities Act, or pursuant to which the BGI Business (ii) is conducted (the “Specified Contracts”):of a type described below:
(i) any Contract (x) to which the Company or any of the Company Subsidiaries is a party relating to indebtedness for the placement, distribution or sale of shares, units or other ownership interests of a Fund that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity borrowed money in excess of $5,000,000 50,000 or (y) pursuant to which the Company or any of the Company Subsidiaries is a guarantor of any indebtedness for borrowed money in 2009excess of $50,000;
(ii) any administration agreement Contract, whether by lease or any other Contract for similar agreement, under which the provision Company or any of administrative services that the Company Subsidiaries is reasonably expected to provide for payments tothe lessor of, or provide makes available for payments from a Transferred Entity in 2009 use by any third Person, any tangible personal property owned by the Company or any of the Company Subsidiaries for an annual rent in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or less10,000, in each case;
(iii) any Contract, other than a Benefit and Compensation Arrangement, that is reasonably expected Contract relating to provide for payments any outstanding loan or advance by the Company or any of the Company Subsidiaries to, or provide investment by the Company or any of the Company Subsidiaries in, any Person (excluding trade receivables and advances to employees for payments from, a Transferred Entity normally incurred business expenses each arising in excess the ordinary course of $10,000,000 in 2009business consistent with past practice);
(iv) any Contract prohibiting partnership, joint venture or materially restricting the ability of any Transferred Entity to conduct its business, to engage in any business or operate in any geographical area or to compete profit sharing agreement with any Person;
(v) any Contract for to which the Company or any joint ventureof the Company Subsidiaries is a party granting a right of first refusal, strategic alliance, partnership right of first offer or similar arrangement involving a sharing preferential right to purchase or acquire any of profits or expenses or payments based on revenues, profits, or assets under management of any Affiliate of Parent the Company’s or any Fund that is reasonably expected to account for revenue to of the BGI Business in 2009 in excess of $10,000,000 on an annual (Company Subsidiaries’ capital stock or annualized) basis or that would reasonably be expected to be material to the Transferred Entities, taken as a wholeassets;
(vi) any Contract relating to any Indebtedness for the purchase, sale, exchange, disposition, gathering, treatment, processing, refining, handling, storage or transportation of a Transferred Entity in an amount in excess of $5,000,000, other than: Hydrocarbons that is not terminable without penalty upon sixty (A60) any mortgage calendar days’ notice or similar Indebtedness secured by specific property owned by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closingless;
(vii) any Contract (including any so-called take-or-pay for the use or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations sharing of any Transferred Entity in respect of the BGI Business that would reasonably be expected to be material to the Transferred Entities, taken as a whole, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person (other than any Transferred Entity) in each case in excess of $10,000,000drilling rigs;
(viii) any Contract that provides for earn-outs purchase, farmin or other farmout agreement, exploration agreement, participation agreement, agreement of development or similar contingent obligations that would reasonably be expected to result in annual payments in 2009 agreement providing for the earning of $5,000,000 or morean ownership interest;
(ix) any Contract entered into since January 1, 2007 for to which the acquisition Company or disposition any of the Company Subsidiaries is a Person party with respect to any partnership entity or other joint venture entity in which the Company or any Company Subsidiary has an ownership interest (other than a Contract solely between the Company or a division of a PersonCompany Subsidiary, on the one hand, and one or for more Company Subsidiaries, on the acquisition or sale of any assets (including Intellectual Propertyother hand), properties, equity interests or rights, other than any such sale or acquisition in the ordinary course of business or any such sale or acquisition that would not reasonably be expected to be material to the Transferred Entities, taken as a whole; and;
(x) any BGI Affiliate Arrangement that will be in effect after Contract pursuant to which the Closing.Company or any of the Company Subsidiaries has an option or right to purchase the assets or securities of another Person;
(bxi) Seller has made available any Contract between the Company or any of the Company Subsidiaries and any employee, officer, director or consultant thereof, or between the Company and any Affiliate of the Company;
(xii) any Contract related to Buyer prior areas of mutual interest;
(xiii) any Contract related to the operation, exploration or development of any Oil and Gas Interests of the Company or the Company Subsidiaries;
(xiv) any Contract with any owner of subsurface rights other than Oil and Gas Interests, including owners of rights with respect to coal;
(xv) any Contract between the Company or any of its Affiliates and any third party operator of any ▇▇▇▇▇, production from which is holding any of the Oil and Gas Interests of the Company or any Company Subsidiary;
(xvi) any Contract relating to the disposition or acquisition by the Company or any of the Company Subsidiaries after the date of this Agreement of assets having a complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts book value or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity fair market value in excess of $1,000,000 100,000;
(xvii) any Contract relating to any outstanding commitment for capital expenditures in 2009 excess of $100,000;
(xviii) any Contract containing provisions applicable upon a change of control of the Company or any of the Company Subsidiaries;
(xix) any Contract with former or present directors or officers;
(xx) any confidentiality or standstill agreements with any Person that contains key person provisions pertaining restrict the Company or any of the Company Subsidiaries in the use of any information or the taking of any actions that were entered into in connection with the consideration by the Company or any of the Company Subsidiaries of any acquisition of assets or equity securities;
(xxi) any Contract to employees which the Company or any of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effect, and is valid and binding on the Transferred Entity that Company Subsidiaries is a party theretowhich involve payments by or to a third party of more than $50,000 during the fiscal year ending December 31, and, to the Knowledge of Seller, on each other party thereto. There exists no breach 2016 or default of any Significant Contract on the part of any Transferred Entity which (with or without notice or lapse of time or both) would, individually or in the aggregate, could reasonably be expected to be material involve such payments during the fiscal year ending December 31, 2016;
(xxii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the Transferred Entitiesborrowing of money or extension of credit involving amounts in excess of $100,000;
(xxiii) any non-competition agreement or any Contract that purports to restrict, taken as a whole. No Transferred Entity has received limit or prohibit the manner in which, or the localities in which, the Company or the Company Subsidiaries conduct their business;
(xxiv) any written notice Contract between the Company or any of an intention the Company Subsidiaries on the one hand, and Republic or any of its Affiliates, on the other hand;
(xxv) any Contract expressly limiting or restricting the ability of the Company or any of the Company Subsidiaries (A) to terminatemake distributions or declare or pay dividends in respect of their capital stock or other equity interests, not (B) to renew make loans to the Company or any of the Company Subsidiaries or (C) to challenge grant Liens on the validity assets or enforceability property of the Company or any Significant of the Company Subsidiaries;
(xxvi) any financial risk management Contract, the terminationincluding currency, failure to renew commodity or challenge interest related derivative or hedge Contracts in excess of which would, individually or $100,000 in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.;
(cxxvii) As except for Contracts the subject matter of the date hereof, no Transferred Entity has entered into and is bound by or which are subject to any of the following:
clauses (i) other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practicethrough (xxvi) above, any Contract providing for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification involving payments by a Transferred Entity or to the Company or any of the Company Subsidiaries in excess of $10,000,000;100,000; and
(iixxviii) other than Contracts entered into in the ordinary course of business, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a whole; or
(iii) other than Contracts entered into in the ordinary course of business consistent with past practice, any Contract requiring which commits the Company or any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individually.
(d) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of Company Subsidiaries to enter into any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009foregoing.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard forms.
Appears in 2 contracts
Sources: Merger Agreement (EQT Corp), Agreement and Plan of Merger (Trans Energy Inc)
Contracts. (ai) Section 4.13(a3.1(p) of the Seller’s Disclosure Schedules Letter contains a complete and correct list of all of the following Contractscontracts, correct, current and complete copies of which have been made available to the Purchaser:
(A) any lease of real property by Four Seasons or any of its subsidiaries, as tenant, with third parties providing for annual rentals of $1,000,000 or more;
(B) any Contract under which Four Seasons or any of its subsidiaries is obliged to make payments on an annual basis in effect as excess of $2,500,000 in the date aggregate;
(C) any partnership, limited liability company agreement, joint venture, alliance agreement or other similar agreement or arrangement relating to the formation, creation, operation, management, business or control of this Agreement, any partnership or joint venture which is not a wholly-owned subsidiary of Four Seasons (other than any such agreement or arrangement relating to the operation or business of a property in the ordinary course and which a Transferred Entity is a party, not material with respect to such property) where Four Seasons’ obligations with respect to any such partnership or joint venture exceed $5,000,000 individually where such obligations arise from Management Agreements or exceed $2,500,000 individually where such obligations do not arise from Management Agreements;
(D) any Contract (other than with or among wholly-owned subsidiaries) under which Indebtedness for borrowed money in excess of $2,500,000 is bound by outstanding or subject to, may be incurred or pursuant to which any property or asset of Four Seasons or any of its subsidiaries is mortgaged, pledged or otherwise subject to a Lien (other than a Permitted Lien), or any Contract restricting the BGI Business is conducted incurrence of Indebtedness by Four Seasons or any wholly-owned subsidiary or the incurrence of Liens (other than Permitted Liens) on any Properties or securities of wholly-owned subsidiaries or restricting the “Specified Contracts”):payment of dividends or the transfer of any Owned Real Properties;
(E) except pursuant to any Management Agreement or any agreement relating thereto, any Contract that purports to limit the right of Four Seasons or any of its subsidiaries or affiliates to, in any material respect (i) engage in any Contract for the placement, distribution or sale line of shares, units or other ownership interests of a Fund that is reasonably expected to provide for payments tobusiness, or provide for payments from, a Transferred Entity in excess of $5,000,000 in 2009;
(ii) compete with any administration agreement or any other Contract for the provision of administrative services that is reasonably expected to provide for payments to, or provide for payments from a Transferred Entity in 2009 in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or less;
(iii) any Contract, other than a Benefit and Compensation Arrangement, that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $10,000,000 in 2009;
(iv) any Contract prohibiting or materially restricting the ability of any Transferred Entity to conduct its business, to engage in any business person or operate in any geographical area or to compete with any Personlocation;
(vF) any Contract providing for any joint venture, strategic alliance, partnership the sale or similar arrangement involving a sharing of profits or expenses or payments based on revenues, profitsexchange of, or assets under management of option to sell or exchange, any Affiliate of Parent or any Fund that is reasonably expected to account for revenue to the BGI Business in 2009 in excess of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be material to the Transferred Entities, taken as Property with a whole;
(vi) any Contract relating to any Indebtedness of a Transferred Entity in an amount fair market value in excess of $5,000,000, other than: (A) any mortgage or similar Indebtedness secured by specific property owned by for the purchase or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closing;
(vii) any Contract (including any so-called take-or-pay or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any Transferred Entity in respect of the BGI Business that would reasonably be expected to be material to the Transferred Entities, taken as a wholeexchange of, or (B) option to purchase or exchange, any Property with a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person (other than any Transferred Entity) in each case fair market value in excess of $10,000,0005,000,000 entered into in the past 12 months or in respect of which the applicable transaction has not been consummated;
(viii) any Contract that provides for earn-outs or other similar contingent obligations that would reasonably be expected to result in annual payments in 2009 of $5,000,000 or more;
(ixG) any Contract entered into since January 1, 2007 in the past 12 months or in respect of which the applicable transaction has not yet been consummated for the acquisition or disposition disposition, directly or indirectly (by amalgamation, merger or otherwise), of a Person or a division of a Person, or for the acquisition or sale of any assets (including Intellectual Propertyother than Contracts referenced in clause (F) of this Section 3.1(p)(i), properties, ) or capital stock or other equity interests or rightsof another person for aggregate consideration in excess of $2,500,000, in each case other than any such sale or acquisition in the ordinary course of business and in a manner consistent with past practice;
(H) each Contract pursuant to which Four Seasons or any such sale of its subsidiaries or acquisition that would not reasonably be expected affiliates manages, operates or provides goods or services to be material or for any hotel, resort, fractional interest program, condominium, development, food and beverage operation or other similar business or property of a third party owner (together with any Contract related thereto, the “Management Agreements”), and each franchise or other agreement pursuant to which Four Seasons or any of its subsidiaries grants any rights to a third party (other than Four Seasons or any of its wholly-owned subsidiaries) to operate any hotel, resort, fractional interest program, condominium, development, food and beverage operation or other similar business or property utilizing any of the Intellectual Property Rights, other than agreements incidental to the Transferred Entitiesoperation of a particular hotel property in the ordinary course of business;
(I) except for any radius restrictions contained in any Management Agreement, taken as a wholeany standstill or similar Contract currently restricting the ability of Four Seasons or any of its subsidiaries to offer to purchase or purchase the assets or equity securities of another person; and
(xJ) any BGI Affiliate Arrangement that will be Contract (other than Contracts referenced in effect after clauses (A) through (I) of this Section 3.1(p)(i)) which has been filed by Four Seasons or its affiliates with Securities Authorities as a material contract and forming part of Four Seasons’ Public Disclosure Record (the ClosingContracts described in clauses (A) through (J), together with all exhibits and schedules thereto being, the “Material Contracts”).
(b) Seller has made available to Buyer prior to the date of this Agreement a complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 None of revenue to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess Four Seasons or any of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effect, and is valid and binding on the Transferred Entity that is a party thereto, andits subsidiaries or affiliates or, to the Knowledge knowledge of SellerFour Seasons, on each any of the other party parties thereto. There exists no , is in breach or violation of, or default of any Significant Contract on the part of any Transferred Entity which (in each case, with or without notice or lapse of time or both) wouldwhere such breach or violation of, or default, has resulted in, or is reasonably likely to result in, a right of termination or other material remedy by any party thereto under, any Management Agreement, and none of Four Seasons or any of its subsidiaries or affiliates has received or given any notice of default under any Management Agreement which remains uncured and, to the knowledge of Four Seasons, there exists no state of facts which after notice or lapse of time or both would constitute a default or breach of such Management Agreement. All Management Agreements are in full force and effect without modification thereto (subject to the effects of bankruptcy, insolvency, reorganization, moratorium or laws relating to or affecting creditors’ rights generally).
(iii) Except as has not and would not, individually or in the aggregate, reasonably be expected to be material have a Material Adverse Effect, (a) none of Four Seasons, its subsidiaries or, to the Transferred Entitiesknowledge of Four Seasons, taken as a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.
(c) As of the date hereof, no Transferred Entity has entered into and is bound by or subject to any of the following:
other parties thereto, is in breach or violation of, or default (iin each case, with or without notice or lapse of time or both) other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practiceunder, any Contract providing for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000;
(ii) other than Contracts entered into in the ordinary course of business, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a whole; or
(iiiManagement Agreements) other than Contracts entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individually.
(d) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of Four Seasons or any of its subsidiaries has received or given any notice of default under any such Contract which remains uncured, and (b) to the Contracts used by the Transferred Entities for such purposes materially deviates from such standard formsknowledge of Four Seasons, there exists no state of facts which after notice or lapse of time or both would constitute a default or breach of a Material Contract (other than a Management Agreement).
Appears in 2 contracts
Sources: Acquisition Agreement (Four Seasons Hotels Inc), Acquisition Agreement (Cascade Investment LLC)
Contracts. (a) Unless set forth on the Exhibit List to the Company's Annual Report on Form 10K-SB for the year ended December 31, 2001, Section 4.13(a3.28(a) of the Seller’s Company Disclosure Schedules Schedule (with paragraph references corresponding to those set forth below) contains a true and complete and correct list of all each of the following ContractsContracts or other arrangements (true and complete copies or, in effect as 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 Parent prior to the date execution of this Agreement), to which a Transferred Entity the Company or any Company Subsidiary is a party, party or by which any of their respective Assets and Properties is bound by or subject to, or pursuant to which the BGI Business is conducted (the “Specified Contracts”):bound:
(iA) all Contracts (excluding Benefit Plans) providing for a commitment of employment or consultation services for a specified or unspecified term or otherwise relating to employment or the termination of employment, 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 Contract for 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 the placementCompany or any Company Subsidiary to make payments in any year, distribution other than with respect to salary or sale incentive compensation payments in the ordinary course of sharesbusiness, units to any employee exceeding $5,000 or other ownership interests any group of a Fund that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity employees exceeding $50,000 in excess of $5,000,000 in 2009the aggregate;
(ii2) all Contracts with any administration agreement Person containing any provision or any other Contract for the provision of administrative services that is reasonably expected to provide for payments to, or provide for payments from a Transferred Entity in 2009 in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or less;
(iii) any Contract, other than a Benefit and Compensation Arrangement, that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $10,000,000 in 2009;
(iv) any Contract covenant prohibiting or materially restricting limiting the ability of the Company or any Transferred Entity to conduct its business, Company Subsidiary to engage in any business activity or operate in compete with any geographical area Person or prohibiting or limiting the ability of any Person to compete with the Company or any Company Subsidiary;
(3) all partnership, joint venture, stockholders' or other similar Contracts with any Person;
(v4) any Contract for any joint venture, strategic alliance, partnership or similar arrangement involving a sharing all Contracts relating to Indebtedness of profits or expenses or payments based on revenues, profits, or assets under management of any Affiliate of Parent the Company or any Fund that is reasonably expected to account for revenue to the BGI Business in 2009 Company Subsidiary in excess of $10,000,000 on an annual (25,000 or annualized) basis to preferred stock issued by the Company or that would reasonably be expected to be material to the Transferred Entities, taken as a wholeany Company Subsidiary;
(vi5) any Contract all Contracts with distributors, dealers, manufacturer's representatives, sales agencies, licensees or Governmental Entities;
(6) all Contracts relating to any Indebtedness of a Transferred Entity in an amount in excess of $5,000,000, other than: (A) any mortgage the future disposition or similar Indebtedness secured by specific property owned by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closing;
(vii) any Contract (including any so-called take-or-pay or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations acquisition of any Transferred Entity in respect of the BGI Business that would reasonably be expected to be material to the Transferred Entities, taken as a whole, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person (other than any Transferred Entity) in each case in excess of $10,000,000;
(viii) any Contract that provides for earn-outs or other similar contingent obligations that would reasonably be expected to result in annual payments in 2009 of $5,000,000 or more;
(ix) any Contract entered into since January 1, 2007 for the acquisition or disposition of a Person or a division of a Person, or for the acquisition or sale of any assets (including Intellectual Property), properties, equity interests or rightsAssets and Properties, other than any such sale dispositions or acquisition in the ordinary course of business or any such sale or acquisition that would not reasonably be expected to be material to the Transferred Entities, taken as a whole; and
(x) any BGI Affiliate Arrangement that will be in effect after the Closing.
(b) Seller has made available to Buyer prior to the date of this Agreement a complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effect, and is valid and binding on the Transferred Entity that is a party thereto, and, to the Knowledge of Seller, on each other party thereto. There exists no breach or default of any Significant Contract on the part of any Transferred Entity which (with or without notice or lapse of time or both) would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.
(c) As of the date hereof, no Transferred Entity has entered into and is bound by or subject to any of the following:
(i) other than investment management and distribution Contracts entered into acquisitions in the ordinary course of business consistent with past practice, and (B) any merger or other business combination;
(7) all Contracts between or among the Company or any Company Subsidiary, on the one hand, and any officer, director or Affiliate of the Company or any Company Subsidiary (other than the Company or any Company Subsidiary), on the other hand;
(8) all collective bargaining or similar labor Contracts;
(9) all Contracts that (A) limit or contain restrictions on the ability of the Company or any Company Subsidiary to declare or pay dividends on, to make any other distribution in respect of or to issue or purchase, redeem or otherwise acquire its capital stock, to incur Indebtedness, to incur or suffer to exist any Lien, to purchase 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 Company Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial condition; and
(10) all Contracts for the license of Intellectual Property for sublicense or use by any Governmental Entity.
(11) all other Contracts (other than Benefit Plans, leases disclosed in the Company SEC documents and insurance policies listed in Section 3.30 of the Company Disclosure Schedule) that (A) involve the payment or potential payment, pursuant to the terms of any such Contract, by or to the Company or any Company Subsidiary of more than $25,000 annually and (B) cannot be terminated within thirty (30) days after giving notice of termination without resulting in any material cost or penalty to the Company or any Company Subsidiary.
(b) Each Contract required to be disclosed in Section 3.28(a) of the Company 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 3.28(b) of the Company Disclosure Schedule, neither the Company, any Company Subsidiary nor, to the knowledge of the Company, 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) in any material respect.
(c) Except as disclosed in Section 3.28(c) of the Company Disclosure Schedule, neither the Company nor any Company Subsidiary is a party to or bound by any Contract providing for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent that has been or otherwise that would could reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000;
(ii) other than Contracts entered into have, individually or in the ordinary course of business, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a whole; or
(iii) other than Contracts entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest aggregate with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individually.
(d) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support such Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard formsa Company Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Scientific Games Corp), Merger Agreement (Mdi Entertainment Inc)
Contracts. (a) Section 4.13(a3.11(a) of the Seller’s Company Disclosure Schedules contains Schedule sets forth a complete and correct accurate list of all of the following Contracts, in effect as of the date of this Agreement, to which a Transferred Entity is a party, is bound by or subject to, or pursuant Agreement of the following contracts and agreements to which the BGI Business Company or any of its Subsidiaries is conducted a party and under which the Company or any of its Subsidiaries has any remaining rights or obligations (collectively, the “Specified Company Material Contracts”):
(i) any Contract for the placementIntellectual Property Agreement, distribution or sale excluding generally commercially available, off-the-shelf software programs with annual license, maintenance, support and other fees of shares, units or other ownership interests of a Fund that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of less than $5,000,000 in 20095,000 individually;
(ii) any administration agreement (or any other Contract group of related agreements) for the provision lease of administrative services that is reasonably expected personal property from or to provide third parties providing for remaining unpaid lease payments to, or provide for payments from a Transferred Entity in 2009 as of the date hereof in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or less50,000;
(iii) any Contractagreement (or group of related agreements) for the purchase of raw materials, other than a Benefit and Compensation Arrangement, that is reasonably expected to provide for payments toinventory, or provide finished goods or for payments from, a Transferred Entity in excess the receipt of services under which the Company or any of its Subsidiaries expects to receive or pay more than the sum of $10,000,000 in 200950,000;
(iv) any Contract prohibiting agreement for capital expenditures or materially restricting the ability acquisition or construction of any Transferred Entity to conduct its business, to engage in any business or operate in any geographical area or to compete with any Personfixed assets;
(v) any Contract for any agreement concerning the establishment or operation of a partnership, joint venture, strategic alliance, partnership limited liability company or similar arrangement involving a sharing of profits or expenses or payments based on revenues, profits, or assets under management of any Affiliate of Parent or any Fund that is reasonably expected to account for revenue to the BGI Business in 2009 in excess of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be material to the Transferred Entities, taken as a wholeother business organization;
(vi) any Contract relating agreement to any Indebtedness of which a Transferred Governmental Entity in an amount in excess of $5,000,000, other than: (A) any mortgage or similar Indebtedness secured by specific property owned by or on behalf of is a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closingparty;
(vii) any Contract agreement containing covenants of the Company or any of its Subsidiaries not to (or otherwise restricting or limiting the ability of the Company or any of its Subsidiaries to) compete in any line of business or geographic or therapeutic area, including any so-called take-or-pay covenant not to compete with respect to the manufacture, marketing, distribution or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations sale of any Transferred Entity in respect of the BGI Business that would reasonably be expected to be material to the Transferred Entities, taken as a whole, product or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person (other than any Transferred Entity) in each case in excess of $10,000,000product line;
(viii) any Contract that provides for earn-outs agreement (or other similar contingent obligations that would reasonably be expected to result in annual payments in 2009 group of $5,000,000 related agreements) under which the Company or moreany of its Subsidiaries has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) Indebtedness (including capitalized lease obligations);
(ix) any Contract entered into since January 1, 2007 agreement under which the Company or any of its Subsidiaries has made advances or loans to any other person;
(x) any agreement for the disposition of any significant portion of the assets of the Company or its Subsidiaries;
(xi) any agreement for the acquisition or disposition of a Person or a division of a Person, or for the acquisition or sale of any assets (including Intellectual Property)business or any corporation, propertiespartnership, equity interests joint venture, limited liability company, association or rightsother business organization or division thereof, other than any such sale or acquisition except purchases of inventory, supplies and raw materials in the ordinary course of business business;
(xii) any powers of attorney;
(xiii) any employment, severance, separation or consulting agreement with any executive officer or key employee of the Company or any such sale of its Subsidiaries other than those that are terminable by the Company or acquisition that would not reasonably be expected to be the applicable Subsidiary on no more than 60 days’ notice without material liability or financial obligation to the Transferred EntitiesCompany or any of its Subsidiaries;
(xiv) any agreement between the Company or any of its Subsidiaries, taken as a wholeon one hand, and any of the Company’s stockholders, directors, officers or employees, on the other; and
(xxv) any BGI Affiliate Arrangement that will be in effect after the Closing.
other agreement (bor group of related agreements) Seller has made available to Buyer prior to the date involving unpaid amounts of this Agreement a complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effect, and is valid and binding on the Transferred Entity that is a party thereto, and, to the Knowledge of Seller, on each other party thereto. There exists no breach 50,000 or default of any Significant Contract on the part of any Transferred Entity which (with or without notice or lapse of time or both) would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.
(c) As of the date hereof, no Transferred Entity has entered into and is bound by or subject to any of the following:
(i) other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practice, any Contract providing for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000;
(ii) other than Contracts entered into in the ordinary course of business.
(b) The Company has made available to the Buyer a complete and accurate copy of each Company Material Contract, together with any amendments, exhibits and schedules thereto. Each Company Material Contract is in full force and effect with respect to the Company or the applicable Subsidiary and, to the Company’s Knowledge, with respect to each other party thereto, and is a valid and binding obligation of each party thereto, subject to the Bankruptcy and Equity Exception and except to the extent it has previously expired in accordance with its terms. None of the Company nor any of its Subsidiaries nor, to the Company’s Knowledge, any type other party to any Company Material Contract is in material violation of Contract or in material default under any Company Material Contract, nor does there exist any condition which, upon the passage of time or the giving of notice or both, would reasonably be expected to cap fees, share fees (i) cause such a material violation of or other payments, share expenses, waive fees material default or to reimburse or assume (ii) give any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a whole; or
(iii) other than Contracts entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity third party (A) the right to co-invest with declare a default or exercise any other Personremedy under any Company Material Contract, (B) the right to provide seed capital accelerate the maturity or similar investment performance of any obligation of the Company or a Subsidiary under any Company Material Contract, (C) the right to invest in cancel, terminate or materially modify any investment product, in each case in an amount in excess of $5,000,000 individually.
Company Material Contract or (dD) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments right to a Transferred Entity in excess of $10,000,000 in 2009penalty under any Company Material Contract.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard forms.
Appears in 2 contracts
Sources: Merger Agreement (Centessa Pharmaceuticals LTD), Merger Agreement (Cornerstone Therapeutics Inc)
Contracts. (ai) Section 4.13(a) of the Seller’s Disclosure Schedules contains Except as disclosed on Schedule 4.03(i)(i), ICI is not a complete and correct list of all of the following Contracts, in effect as of the date of this Agreement, to which a Transferred Entity is a party, is bound by or subject party to, or pursuant to which the BGI Business is conducted (the “Specified Contracts”):bound by, any Contract that is:
(iA) a written employment agreement or employment contract;
(B) a collective bargaining agreement or other Contract with any labor organization, union or association;
(C) a covenant not to compete;
(D) a Contract with (1) any shareholder of ICI, (2) any Affiliate of ICI or (3) any director, officer or employee of ICI or any of its Affiliates (other than employment agreements and employment contracts described in clause (A) above);
(E) a lease, sublease or similar Contract with any Person under which ICI is a lessor or sublessor of, or makes available for use to any Person, (1) any Real Estate or (2) any portion of any premises otherwise occupied by ICI;
(F) a lease, sublease or similar Contract with any Person under which ICI is a lessor or sublessor of, or makes available for use to any Person, any Personal Property of ICI;
(1) a continuing Contract for the placementfuture purchase of materials, distribution supplies or sale equipment (other than purchase orders for Inventory in the ordinary course of sharesbusiness consistent with past practice), units (2) a Contract for management, service, consulting or other ownership interests of similar services or (3) a Fund that is reasonably expected to provide Contract for payments to, or provide for payments from, a Transferred Entity in excess of $5,000,000 in 2009advertising services;
(iiH) any administration a license, option, agreement or any other Contract for the provision relating in whole or in part to any Intellectual Property (including any license, option, agreement or other Contract under which ICI is licensee or licensor of administrative services that is reasonably expected to provide for payments to, or provide for payments from a Transferred Entity in 2009 in excess any Intellectual Property) of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or lessICI;
(iii1) a Contract under which ICI has borrowed any money from, or issued any note, bond, debenture or other evidence of indebtedness to, any Person or (2) any Contractother note, bond, debenture or other than a Benefit and Compensation Arrangement, that is reasonably expected evidence of indebtedness issued to provide for payments to, or provide for payments from, a Transferred Entity in excess of $10,000,000 in 2009;
(iv) any Contract prohibiting or materially restricting the ability of any Transferred Entity to conduct its business, to engage in any business or operate in any geographical area or to compete with any Person;
(vJ) any Contract for any joint venture, strategic alliance, partnership or similar arrangement involving a sharing of profits or expenses or payments based on revenues, profits, or assets under management of any Affiliate of Parent or any Fund that is reasonably expected to account for revenue to the BGI Business in 2009 in excess of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be material to the Transferred Entities, taken as a whole;
(vi) any Contract relating to any Indebtedness of a Transferred Entity in an amount in excess of $5,000,000, other than: (A) any mortgage or similar Indebtedness secured by specific property owned by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closing;
(vii) any Contract (including any so-called take-or-pay or keep well agreementskeepwell agreement) under which (A1) any Person has has, directly or indirectly indirectly, guaranteed indebtedness, liabilities or assumed Indebtednessobligations of ICI or (2) ICI has, directly or indirectly, guaranteed indebtedness, liabilities or obligations of any Transferred Entity other Person (in respect each case other than endorsements for the purpose of collection in the BGI Business that would reasonably be expected to be material to the Transferred Entitiesordinary course of business);
(K) a Contract under which ICI has, taken as a wholedirectly or indirectly, made any advance, loan, extension of credit or capital contribution to, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of other investment in, any Person (other than any Transferred Entity) extensions of trade credit in each case in excess the ordinary course of $10,000,000business);
(viiiL) a Contract providing for indemnification of any Contract that provides for earn-outs or other similar contingent obligations that would reasonably be expected Person with respect to result in annual payments in 2009 liabilities relating to the business of $5,000,000 or moreICI;
(ixM) any Contract entered into since January 1, 2007 for the acquisition or disposition a power of a Person or a division of a Person, or for the acquisition or sale of any assets attorney (including Intellectual Property), properties, equity interests or rights, other than any such sale or acquisition a power of attorney given in the ordinary course of business or any such sale or acquisition that would not reasonably be expected with respect to be material to the Transferred Entities, taken as a whole; androutine tax matters);
(xN) any BGI Affiliate Arrangement that will be a Contract not made in effect after the Closing.ordinary course of business;
(bO) Seller has made available to Buyer a confidentiality agreement, other than in the ordinary course of business;
(P) a Contract (including a purchase order) involving payment by ICI of more than $25,000 or extending for a term more than 180 days from the date of this Agreement, other than purchase orders entered into in the ordinary course of business prior to the date of this Agreement and purchase orders entered into in the ordinary course of business after the date of this Agreement and not in violation of this Agreement;
(Q) a complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts including a sales order) involving the obligation of ICI to deliver products or portions thereof have been withheld as described in Seller’s Disclosure Schedules services for payment of more than $25,000 or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on extending for a term more than 180 days from the date of this Agreement. Each , other than sales orders entered into in the ordinary course of business after the date of this Agreement and not in violation of this Agreement;
(iR) Specified Contracta Contract with, or license or Permit granted by or from, any Governmental Entity;
(iiS) Investment Advisory Arrangement which accounts a Contract providing for the services of any dealer, distributor, sales representative, franchisee or similar representative involving the payment by ICI of more than $1,000,000 25,000;
(T) a Contract granting a Lien upon any of revenue the properties or assets of ICI;
(U) a Contract for the sale of any of the properties or assets of ICI (other than sales of Inventory in the ordinary course of business) or the grant of any preferential rights to purchase any properties or assets of ICI or requiring the consent of any party to the BGI Business on an annualized basis and transfer of any of the properties or assets of ICI;
(iiiV) any other Contract that is reasonably expected has an aggregate future liability to provide for payments to a Transferred Entity any Person (other than ICI) in excess of $1,000,000 25,000; or
(W) a Contract other than as described above to which ICI is a party or by which it or any of its properties or assets is bound, in 2009 each case that contains key person provisions pertaining is material to employees its business or the use of a Transferred Entity ((i), any of the properties or assets of ICI.
(ii) and (iii) being the “Significant Contracts”Except as disclosed on Schedule 4.03(i)(ii), each Contract identified on Schedule 4.03(i)(i) is valid, binding and in full force and effect, effect and is valid and binding enforceable by ICI in accordance with its terms. Except as disclosed on Schedule 4.03(i)(ii), ICI has performed all obligations required to be performed by it under the Transferred Entity that Contracts to which it is a party theretoor by which it is bound, andand it has not taken any actions that are in conflict with, to the Knowledge of Selleror that would result in any violation of, on each other party thereto. There exists no breach or default of any Significant Contract on the part of any Transferred Entity which (with or without notice or lapse of time time, or both) wouldunder, individually or in the aggregateany such Contract, reasonably be expected to be material and, to the Transferred Entitiesknowledge of the Founders, no other party to any such Contract has taken any action that is in conflict with, or that would result in any violation of, or default (with or without notice or lapse of time, or both) under, such Contract. ICI has not, except as a whole. No Transferred Entity has disclosed on Schedule 4.03(i)(ii), received any written or oral notice of an the intention to terminate, not to renew or to challenge the validity or enforceability of any Significant party to terminate any Contract to which ICI is a party or by which ICI is bound. Except as disclosed on Schedule 4.03(i)(ii), to the knowledge of the Founders, the execution and delivery of this Agreement, the consummation of the transactions contemplated hereby and the compliance with the terms hereof will not require the consent of any party to any Contract identified on Schedule 4.01(i)(ii) or any material Contract with a customer for the sale of any ICI product or service to avoid the invalidity of the transfer of such Contract, the terminationtermination thereof or a breach, failure to renew violation or challenge default thereunder. Complete and correct copies of which wouldall Contracts listed on Schedule 4.03(i)(i), individually or in the aggregatetogether with all amendments thereto, reasonably be expected to be material to the Transferred Entities, taken as a whole.
(c) As of the date hereof, no Transferred Entity has entered into and is bound by or subject to any of the following:
(i) other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practice, any Contract providing for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000;
(ii) other than Contracts entered into in the ordinary course of business, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a whole; or
(iii) other than Contracts entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individually.
(d) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has have been made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard formsIHS.
Appears in 2 contracts
Sources: Formation Agreement (International Computex Inc), Formation Agreement (Galvin Michael Jeffrey)
Contracts. (a) Section 4.13(aAll Contracts, including amendments thereto, required to be filed as an exhibit to any report of the Company filed pursuant to the Exchange Act of the type described in Item 601(b)(10) of Regulation S-K promulgated by the Seller’s Disclosure Schedules contains a complete and correct list of all of the following ContractsSEC have been so filed, in effect and, as of the date hereof, no such Contract has been amended or modified, except as set forth in Section 3.19(a) of this Agreementthe Company Disclosure Letter. All such filed Contracts shall be deemed to have been made available to Parent.
(b) Other than the Contracts described in Section 3.19(a), Section 3.19(b) of the Company Disclosure Letter sets forth a complete list, and the Company has made available to which a Transferred Entity is a partyParent true and complete copies, is bound by or subject to, or pursuant of each Contract to which the BGI Business Company or any of the Company Subsidiaries is conducted a party (other than any of the “Specified Contracts”):foregoing between the Company and any of the Company Subsidiaries or between any wholly owned Company Subsidiaries), as of the date hereof, that:
(i) any Contract for the placement, distribution is a partnership or sale of shares, units or other ownership interests of a Fund that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $5,000,000 in 2009joint venture;
(ii) any administration agreement is material to the Company and the Company Subsidiaries, taken as a whole, and contains (A) covenants of the Company or any of Company Subsidiaries purporting to limit, in any material respect, either the type or line of business in which the Company or any of the Company Subsidiaries may engage or the geographic area in which any of them may so engage and which, in each case, following the Effective Time, would apply to Parent and its affiliates (including the Company and its Subsidiaries), (B) “take or pay”, “requirements” or other Contract for similar provisions obligating the provision Company or any of administrative services that is reasonably expected its Subsidiaries to provide for payments to, the quantity of goods or services required by another person or (C) pricing or margin provisions applicable to the Company or any of its Subsidiaries that provide for payments from a Transferred Entity in 2009 in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days another person “most favored nation” or lesssimilar provisions with respect to pricing;
(iii) evidences the creation, incurrence, assumption or guarantee of Indebtedness of the Company or any Contract, other than a Benefit and Compensation Arrangement, that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity Company Subsidiary in an amount in excess of $10,000,000 in 20097 million, or creation or incurrence of any Lien (other than Permitted Liens) on any material property or asset of the Company or any Company Subsidiary;
(iv) any is a Contract prohibiting or materially restricting with an affiliate that would be required to be disclosed by Item 404(a) of Regulation S-K promulgated under the ability of any Transferred Entity to conduct its business, to engage in any business or operate in any geographical area or to compete with any PersonExchange Act;
(v) grants any Contract for rights of first refusal, rights of first negotiation or other similar rights to any joint ventureperson with respect to the sale, strategic alliancetransfer, partnership pledge or similar arrangement involving a sharing disposition of profits any material business, property or expenses or payments based on revenues, profitsasset, or assets under management any equity security, of any Affiliate of Parent or any Fund that is reasonably expected to account for revenue to the BGI Business in 2009 in excess of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be material to Company and the Transferred EntitiesCompany Subsidiaries, taken as a whole;
(vi) provides for the acquisition or disposition of any Contract relating to business of the Company or any Indebtedness Company Subsidiary (including equity interests) (whether by merger, sale of a Transferred Entity in an amount stock, sale of assets, or otherwise) other than this Agreement (A) entered into since January 1, 2013 and which involves consideration in excess of $5,000,0007 million or (B) pursuant to which any material earn-out, deferred or contingent payment or indemnification obligations remain outstanding (excluding indemnification obligations in respect of representations and warranties and covenants, in each case, that survive indefinitely or for periods equal to a statute of limitations and excluding obligations to indemnify directors and officers pursuant to acquisition agreements);
(vii) is a settlement Contract which materially affects the conduct of the Company’s or any Company Subsidiaries’ businesses;
(viii) is material to the Company and the Company Subsidiaries, taken as a whole, that imposes exclusivity (other than non-competition covenants, which are addressed by clause (ii) above) or non-solicitation obligations on the Company, any Company Subsidiary or any affiliate of the Company, except for Contracts entered into in the ordinary course of business which impose exclusivity or non-solicitation obligations that are not material to the Company or any of its affiliates;
(ix) pursuant to which any Intellectual Property Right which is material to the Company and the Company Subsidiaries, taken as a whole, is licensed or sold to the Company or any Company Subsidiary, other than: (A) license agreements for any mortgage or similar Indebtedness secured by specific property owned by or on behalf of a Clientnon-customized commercially-available Software; (B) Contracts between the Company or any Indebtedness solely between Transferred Entitiesof its Subsidiaries, on the one hand, and their employees and consultants, on the other hand, entered into in the ordinary course of business; or (C) non-exclusive Contracts between the Company or any Indebtedness for which no Transferred Entity will be liable following of its Subsidiaries, on the Closing;
(vii) any Contract (including any so-called take-or-pay one hand, and their suppliers or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtednessvendors, liabilities or obligations of any Transferred Entity in respect of on the BGI Business that would reasonably be expected to be material to the Transferred Entitiesother hand, taken as a whole, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person (other than any Transferred Entity) in each case in excess of $10,000,000;
(viii) any Contract that provides for earn-outs or other similar contingent obligations that would reasonably be expected to result in annual payments in 2009 of $5,000,000 or more;
(ix) any Contract entered into since January 1, 2007 for the acquisition or disposition of a Person or a division of a Person, or for the acquisition or sale of any assets (including Intellectual Property), properties, equity interests or rights, other than any such sale or acquisition in the ordinary course of business or any such sale or acquisition that would not reasonably be expected to be material to and (D) non-exclusive in-bound licenses entered into in the Transferred Entities, taken as a whole; andordinary course of business;
(x) pursuant to which any BGI Affiliate Arrangement that will be in effect after material Company Owned IP is licensed to a third party by the Closing.Company or any Company Subsidiary;
(bxi) Seller has made available requires the Company or any Company Subsidiary to Buyer prior to the date of this Agreement a complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts make any capital commitment or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity capital expenditure in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of 4 million during any twelve (12) month period following the date hereof; or
(xii) with a Transferred Governmental Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effect, and is valid and binding on the Transferred Entity that is a party thereto, and, to the Knowledge of Seller, on each other party thereto. There exists no breach or default of any Significant Contract on the part of any Transferred Entity which (with or without notice or lapse of time or both) would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge Company and the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred EntitiesCompany Subsidiaries, taken as a whole.
(c) As of Each Contract described in Section 3.19(a) or Section 3.19(b) (and any such Contract entered into after the date hereof in accordance with the provisions hereof, no Transferred Entity has entered into and ) is bound by referred to herein as a “Company Material Contract.” Neither the Company nor any Company Subsidiary is in breach of or subject to any of default under the following:
(i) other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practice, any Contract providing for the indemnification terms of any Person Company Material Contract (and neither the Company nor any Company Subsidiary has received any written notice regarding any such breach or default), and no event has occurred that with respect to liabilitiesnotice or lapse of time or both would constitute a breach or default thereunder by the Company or any Company Subsidiary, whether absolutewhere such breach or default, accruedindividually or together with other such breaches or defaults, contingent has had or otherwise that would reasonably be expected to result have a Company Material Adverse Effect. To the knowledge of the Company, no other party to any Company Material Contract is in aggregate indemnification payments by breach of or default under the terms of any Company Material Contract where such breach or default, individually or together with other such breaches or defaults, has had or would reasonably be expected to have a Transferred Entity Company Material Adverse Effect. Each Company Material Contract is a valid and binding obligation of the Company or a Company Subsidiary, as applicable, and is in excess of $10,000,000;
(ii) other than Contracts entered into full force and effect, except for such failures as, individually or in the ordinary course of businessaggregate, any type of Contract have not had and would not reasonably be expected to cap feeshave a Company Material Adverse Effect, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material subject to the Transferred Entities, taken as a whole; or
(iii) other than Contracts entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individuallyBankruptcy and Equity Exception.
(d) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard forms.
Appears in 1 contract
Sources: Merger Agreement (Cabelas Inc)
Contracts. (a) Section 4.13(a4.15(a) of the Seller’s Sun Disclosure Schedules contains a complete and correct list of all of the following ContractsSchedule sets forth, in effect as of the date of this Agreement, a true and complete list, and Sun has made available to which a Transferred Entity is a partyIronman prior to the date of this Agreement true and complete copies (including all material amendments, is bound by modifications, extensions, renewals, schedules, exhibits or subject toancillary agreements with respect thereto), or pursuant to which the BGI Business is conducted (the “Specified Contracts”):of:
(i) each Contract that would be required to be filed by S▇▇ as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(ii) each Contract to which Sun or any Contract for of the placement, distribution Sun Subsidiaries is a party involving expected annual revenues or sale of shares, units or other ownership interests of a Fund that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity annual expenditures in excess of $5,000,000 in 2009;
(ii) any administration agreement or any other Contract for the provision of administrative services that is reasonably expected to provide for payments to, or provide for payments from a Transferred Entity in 2009 in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or less2023;
(iii) each Contract to which Sun or any Contractof the Sun Subsidiaries is a party that restricts in any material respect the ability of Sun or any of the Sun Subsidiaries (A) to compete or engage in any line of business or with any Person in any geographical area, other than a Benefit and Compensation Arrangement(B) to sell, that is reasonably expected supply or distribute any material Sun Offering use or enforce any material Intellectual Property Rights owned by or exclusively licensed to provide for payments toSun or any Sun Subsidiary, (C) to solicit any (potential or actual) customer or supplier, or provide for payments from(D) that otherwise has the effect of materially restricting Sun, a Transferred Entity the Sun Subsidiaries or any of their respective affiliates from the development, marketing or distribution of Sun Offerings, in excess of $10,000,000 each case, in 2009any geographic area;
(iv) each Contract to which Sun or any Contract prohibiting of the Sun Subsidiaries is a party that is material and obligates Sun or materially restricting the ability of any Transferred Entity a Sun Subsidiary to conduct its business, to engage in any business or operate in any geographical area or to compete with any Personthird party on a preferential or exclusive basis, or that includes “most favored nation” or similar provisions;
(v) any Contract for any joint ventureeach loan and credit agreement, strategic allianceContract, partnership or similar arrangement involving a sharing of profits or expenses or payments based on revenuesnote, profitsdebenture, bond, indenture, mortgage, security agreement, pledge, or assets under management other similar agreement pursuant to which any Indebtedness of any Affiliate of Parent Sun or any Fund that is reasonably expected to account for revenue to of the BGI Business in 2009 Sun Subsidiaries in excess of $10,000,000 on an annual (5,000,000 is outstanding or annualized) basis may be incurred, other than any such agreement between or that would reasonably be expected to be material to the Transferred Entities, taken as a wholeamong Sun and one or more wholly owned Sun Subsidiaries;
(vi) each partnership, joint venture or similar Contract to which Sun or any Contract of the Sun Subsidiaries is a party relating to the formation, creation, operation, management or control of any Indebtedness partnership or joint venture or to the ownership of a Transferred Entity any equity interest in an amount in excess of $5,000,000, any entity or business enterprise other than: (A) any mortgage or similar Indebtedness secured by specific property than the wholly owned by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the ClosingSun Subsidiaries;
(vii) each Contract relating to which Sun or any Contract of the Sun Subsidiaries is a party that contains covenants, indemnities or other obligations (including any so-called take-or-pay or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any Transferred Entity in respect of the BGI Business that would reasonably be expected to be material to the Transferred Entities, taken as a whole, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person (other than any Transferred Entity) in each case in excess of $10,000,000;
(viii) any Contract that provides for earn-outs “earnout” or other similar contingent obligations payment obligations) that would reasonably be expected to result in annual the making by Sun or any Sun Subsidiary of future payments in 2009 excess of $5,000,000 5,000,000;
(viii) each Contract pursuant to which Sun or morethe Sun Subsidiaries receives from any third party a license or similar right to any Intellectual Property Right material to Sun and the Sun Subsidiaries taken as a whole, and that are not (A) non-exclusive licenses granted in the ordinary course of business; or (B) Contracts under which open source technology is licensed; or (C) Contracts with current or former employees and service providers that were entered into in the ordinary course of business;
(ix) any each Contract entered into since January 1, 2007 for the acquisition or disposition of with a Person Governmental Entity to which Sun or a division of Sun Subsidiary is a Personparty, and pursuant to which Sun or for the acquisition or sale of a Sun Subsidiary has any assets (including Intellectual Property), properties, equity interests or rights, material future obligation other than any such sale or acquisition in the ordinary course provision of business or any such sale or acquisition that would not reasonably be expected to be material to the Transferred Entities, taken as a whole; and
(x) any BGI Affiliate Arrangement that will be in effect after the Closing.
(b) Seller has made available to Buyer prior to the date of this Agreement a complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effect, and is valid and binding on the Transferred Entity that is a party thereto, and, to the Knowledge of Seller, on each other party thereto. There exists no breach or default of any Significant Contract on the part of any Transferred Entity which (with or without notice or lapse of time or both) would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.
(c) As of the date hereof, no Transferred Entity has entered into and is bound by or subject to any of the following:
(i) other than investment management and distribution Contracts entered into Sun Offerings in the ordinary course of business consistent with past practice, any ; and
(x) each Contract providing for the indemnification of that gives any Person with respect the right to liabilitiesacquire any material assets of Sun or any Sun Subsidiary (excluding ordinary course commitments to purchase Sun products) after the date hereof. Each agreement, whether absoluteunderstanding or undertaking of the type described in this Section 4.15(a) is referred to herein as a “Sun Material Contract”.
(b) Except for matters which, accruedindividually or in the aggregate, contingent or otherwise that have not had and would not reasonably be expected to result have a Sun Material Adverse Effect, (i) each Sun Material Contract (including, for purposes of this Section 4.15(b), any Contract entered into after the date of this Agreement that would have been a Sun Material Contract if such Contract existed on the date of this Agreement) is a valid, binding and legally enforceable obligation of Sun or one of the Sun Subsidiaries, as the case may be, and, to the Knowledge of Sun, of the other parties thereto, except, in aggregate indemnification payments each case, as enforcement may be limited by a Transferred Entity in excess bankruptcy, insolvency, reorganization or similar Laws affecting creditors’ rights generally and by general principles of $10,000,000;
equity; (ii) other than Contracts entered into each such Sun Material Contract is in the ordinary course of business, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a wholefull force and effect; or
(iii) none of Sun or any of the Sun Subsidiaries is (with or without notice or lapse of time, or both) in breach or default under any such Sun Material Contract and, to the Knowledge of Sun, no other than Contracts entered into party to any such Sun Material Contract is (with or without notice or lapse of time, or both) in breach or default thereunder; (iv) to the ordinary course Knowledge of business consistent with past practiceSun, each other party to a Sun Material Contract has performed all material obligations required to be performed by it under such Sun Material Contract; and (v) no party to any Sun Material Contract has given Sun or any of the Sun Subsidiaries notice (whether written or oral) of its intention to cancel, terminate, change the scope of rights under or fail to renew any Sun Material Contract and neither Sun nor any of the Sun Subsidiaries, nor, to the Knowledge of Sun, any other party to any Sun Material Contract, has repudiated (whether orally or in writing) any material provision thereof. No Sun Material Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individually.
(d) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is can be reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients prevent or materially delay the consummation of the securities lending Merger or short-term cash businesses any of the BGI Business, and none of the Contracts used other transactions contemplated by the Transferred Entities for such purposes materially deviates from such standard formsthis Agreement.
Appears in 1 contract
Contracts. (a) Section 4.13(a) 3.18 of the Seller’s Disclosure Schedules Letter contains a complete and correct list of all of the following Contractslist, in effect as of the date hereof, of this Agreement, all Contracts (other than Employee Benefit Plans and other than any Material Contracts that are Excluded Assets) related to the FH Business to which a Transferred Entity Seller or any of its Affiliates is a partyparty or by which any of their respective assets is bound, is bound by or subject to, or pursuant to which and that fall within any of the BGI Business is conducted following categories (the “Specified Material Contracts”):
): (a) each Contract with a Key Customer (other than (i) any Contract for the placementsuch contract which is terminable by a Transferred FH Company, distribution or sale of shares, units or other ownership interests a Closing Subsidiary of a Fund that is reasonably expected to provide for payments toTransferred FH Company or an FH Affiliate (in respect of the FH Business), as applicable, without material liability, penalty or provide for payments from, a Transferred Entity in excess of $5,000,000 in 2009;
premium on 90 or fewer days’ notice and (ii) purchase orders, sales orders, rebate agreements or invoices under such contracts entered into in the ordinary course of business); (b) each Contract with a Key Supplier (other than (i) any administration agreement or any other Contract for the provision of administrative services that such contract which is reasonably expected to provide for payments to, or provide for payments from a Transferred Entity in 2009 in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon FH Company, Closing Subsidiary of a Transferred FH Company or FH Affiliate (in respect of the FH Business), as applicable, without material liability, penalty or premium on 90 or fewer days’ notice and (ii) purchase orders, sales orders, rebate agreements or invoices under such contracts entered into in the ordinary course of 180 days business); (c) each Contract which limits the ability, in any material respect, of (i) a Transferred FH Company or less;
any of its Closing Subsidiaries or an FH Affiliate (iiiin respect of the FH Business) to compete with any Person generally or in any geographic area in which any Transferred FH Company or any Closing Subsidiary thereof or an FH Affiliate (in respect of the FH Business) conducts the FH Business, or (ii) a Transferred FH Company or any of its Closing Subsidiaries or any FH Affiliate (in respect of the FH Business) from entering into any line of business, or from freely providing services or supplying products to any customer or potential customer, or in any part of the world; (d) each material Transferred IP Contract, other than a Benefit and Compensation Arrangementnon-disclosure agreements, that is reasonably expected to provide for payments toemployee invention assignments, or provide for payments fromcustomer end user agreements, a Transferred Entity in excess of $10,000,000 in 2009;
(iv) any Contract prohibiting or materially restricting the ability of any Transferred Entity to conduct its business“clickwrap”, to engage in any business or operate in any geographical area or to compete with any Person;
(v) any Contract for any joint venture, strategic alliance, partnership “shrinkwrap,” open source or similar arrangement involving a sharing Contracts for generally commercially available computer software, firmware or data, and similar agreements entered into in the ordinary course of profits or expenses or payments based on revenues, profits, or assets under management business with annual license fees of any Affiliate of Parent or any Fund that is reasonably expected to account for revenue to the BGI Business in 2009 in excess of less than $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be material to the Transferred Entities, taken as a whole;
(vi) any Contract relating to any Indebtedness of a Transferred Entity in an amount in excess of $5,000,000, other than: (A) any mortgage or similar Indebtedness secured by specific property owned by or on behalf of a Client100,000; (Be) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closing;
(vii) any each Contract (including any so-called take-or-pay or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any Transferred Entity in respect of the BGI Business that would reasonably be expected to be material to the Transferred Entities, taken as a whole, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person (other than any Transferred Entity) in each case in excess of $10,000,000;
(viii) any Contract that provides for earn-outs or other similar contingent obligations that would reasonably be expected to result in annual payments in 2009 of $5,000,000 to or more;
(ix) any Contract entered into since January 1, 2007 for the acquisition or disposition of from a Person or a division of a Person, or for the acquisition or sale of any assets (including Intellectual Property), properties, equity interests or rights, other than any such sale or acquisition in the ordinary course of business Transferred FH Company or any such sale of its Closing Subsidiaries or acquisition that would not reasonably be expected to be material to an FH Affiliate (in respect of the Transferred Entities, taken as a whole; and
(xFH Business) any BGI Affiliate Arrangement that will be in effect after the Closing.
(b) Seller has made available to Buyer prior to the date of this Agreement a complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 2,000,000 (or the equivalent value in 2009 the applicable currency) over any consecutive 12-month period including the date hereof; (f) each (A) consulting agreement (other than those that contains key person provisions pertaining to employees are terminable on no more than thirty (30) days’ prior notice and that provide for a termination fee of a Transferred Entity ((iless than $50,000), (iiB) change of control, retention or severance agreement or arrangement or (C) employment agreement, in the case of each of clauses (A) and (iii) being the “Significant Contracts”) is in full force and effectC), and is valid and binding on the Transferred Entity that is a party thereto, and, to the Knowledge of Seller, on each other party thereto. There exists no breach or default of any Significant Contract on the part of any Transferred Entity which (with or without notice or lapse of time or bothx) would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.
(c) As of the date hereof, no Transferred Entity has entered into and is bound by or subject to any of the following:
(i) other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practice, any Contract providing provides for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity mandatory annual cash compensation in excess of $10,000,000;
200,000 or (iiy) other than Contracts entered into in the ordinary course of business, includes any type of Contract to cap fees, share fees bonus or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that amount payable in any such case would be material to connection with the Transferred Entities, taken as a wholetransactions contemplated hereby; or
(iii) other than Contracts entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individually.
(d) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard forms.16
Appears in 1 contract
Sources: Purchase Agreement
Contracts. (a) All Contracts, including amendments thereto, required to be filed as an exhibit to any report of the Company filed pursuant to the Exchange Act of the type described in Item 601(b)(10) of Regulation S-K promulgated by the SEC have been filed. All such filed Contracts shall be deemed to have been made available to Parent.
(b) Other than the Contracts described in Section 4.13(a3.18(a), Section 3.18(b) of the Seller’s Company Disclosure Schedules contains Letter sets forth a complete list, and correct list the Company has made available to Parent true and complete copies, of all each Contract to which the Company or any of the following ContractsCompany Subsidiaries is a party or by which it is bound or to which any of their respective assets are subject (other than any of the foregoing between the Company and any of the Company Subsidiaries or between any wholly owned Company Subsidiaries), in effect as of the date of this Agreementhereof, to which a Transferred Entity is a party, is bound by or subject to, or pursuant to which the BGI Business is conducted (the “Specified Contracts”):that:
(i) relates to a partnership, joint venture, limited liability or similar arrangement or relates to the formation, creation, operation, management or control of any Contract for partnership or joint venture with a third person, in each case material to the placementCompany and the Company Subsidiaries, distribution or sale of shares, units or other ownership interests of taken as a Fund that is reasonably expected to provide for payments towhole, or provide for payments from, a Transferred Entity in excess of which the Company owns any interest valued at more than $5,000,000 in 2009250,000 without regard to percentage voting or economic interest;
(ii) any administration agreement contains covenants of the Company or any of Company Subsidiaries purporting to limit, in any material respect, either the type of business in which the Company or any of the Company Subsidiaries may engage or the geographic area in which any of them may so engage which, in each case, following the Merger, would apply to Parent and its Subsidiaries (other Contract for than the provision of administrative services that is reasonably expected to provide for payments to, or provide for payments from a Transferred Entity in 2009 in excess of $10,000,000 Surviving Corporation and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or lessthe Company Subsidiaries);
(iii) relates to the creation, incurrence, assumption or guarantee of Indebtedness of the Company or any Contract, other than a Benefit and Compensation Arrangement, that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity Company Subsidiary in an amount in excess of $10,000,000 in 2009250,000 (except for such Indebtedness between the Company and any of the Company Subsidiaries or between the Company Subsidiaries, guarantees by the Company of Indebtedness of any of the Company Subsidiaries and guarantees by any of the Company Subsidiaries of Indebtedness of the Company or any other Company Subsidiary);
(iv) any Contract prohibiting is a collective bargaining agreement or materially restricting the ability of any Transferred Entity to conduct its business, to engage in any business similar agreement or operate in any geographical area or to compete arrangement with any Personlabor union (excluding agreements with terms set by applicable Law);
(v) is with any Contract for any joint venture, strategic alliance, partnership or similar arrangement involving a sharing of profits or expenses or payments based on revenues, profitsthird person pursuant to which (A) such third person provides services to, or assets under management of manufactures any Affiliate of Parent product on behalf of, the Company or any Fund Company Subsidiary, or relates to capital expenditures or the purchase of products by the Company or any Company Subsidiary, and (B) the Company or any Company Subsidiary paid such third party more than $250,000 in the aggregate in the fiscal year ended December 31, 2014 or reasonably anticipate paying such third party more than $250,000 in the aggregate in the fiscal year ending December 31, 2015;
(vi) pursuant to which the Company or any Company Subsidiary received payments from a customer of more than $250,000 in the aggregate in the fiscal year ended December 31, 2014 or reasonably anticipate receiving payments of more than $250,000 in the aggregate in the fiscal year ending December 31, 2015;
(vii) pursuant to which the Company or any Company Subsidiary has granted “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to any products, services or territory or that is reasonably expected contains an agreement by the Company or any Company Subsidiary to account for revenue to the BGI Business in 2009 purchase a minimum quantity of goods or services in excess of $10,000,000 on 250,000 or any agreement by the Company or any Company Subsidiary to purchase particular goods or services exclusively from a specified person or group of persons;
(viii) pursuant to which the Company or any Company Subsidiary leases any real property from a third party;
(ix) is a Contract with an annual (or annualized) basis or affiliate that would reasonably be expected required to be material disclosed by Item 404(a) of Regulation S-K under the Exchange Act;
(x) relating to the Transferred Entitiesacquisition or disposition of a material business (including by merger, consolidation or acquisition of stock or assets), or the grant of 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 the Company Subsidiaries, taken as a whole;
(vixi) any is a mortgage, pledge, security agreement, deed of trust or other Contract relating to any Indebtedness of granting a Transferred Entity in an amount in excess of $5,000,000Lien, other than: (A) than a Permitted Lien, on any mortgage material property or similar Indebtedness secured by specific property owned by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closing;
(vii) any Contract (including any so-called take-or-pay or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any Transferred Entity in respect asset of the BGI Business that would reasonably be expected to be material to the Transferred Entities, taken as a whole, Company or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person Company Subsidiary (other than any Transferred Entity) in each case in excess of $10,000,000such item that relates to Indebtedness that is not required to be listed by Section 3.18(b)(ii));
(viiixii) is a Contract with any Contract that provides for earn-outs agency or department of the United States federal government or other similar contingent obligations that Governmental Entity for the purchase of goods and/or services from the Company or any Company Subsidiary which would reasonably be expected to result in annual payments to the Company or any Company Subsidiary in 2009 excess of $5,000,000 or more;250,000 in any fiscal year;
(ixxiii) is a Contract pursuant to which the Company or any Contract entered into since January 1of its Subsidiaries has granted, 2007 or agreed to grant, to another person a license to the Company Intellectual Property, for the acquisition or disposition avoidance of a Person or a division of a Person, or for the acquisition or sale of doubt excluding any assets (including Intellectual Property), properties, equity interests or rights, other than license to use any such sale or acquisition Company Product granted in the ordinary course of business to (A) customers of the Company or (B) to researchers and others (who may not be customers) for an evaluation or research project or study, and further excluding agreements or purchase orders entered into in the ordinary course of business with any customer of the Company, which agreements or purchase orders are in a standard Company form disclosed to Parent prior to the date hereof;
(xiv) is a Contract pursuant to which the Company receives from another person a license to use any Intellectual Property Rights, excluding licenses for Software;
(xv) is a Contract pursuant to which the Company or any of the Company Subsidiaries has made any loan to any person that has an outstanding principal balance as of the date hereof of more than $250,000 (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); or
(xvi) is an employment or individual consulting agreement entered into by the Company with an employee or individual consultant whose annual base salary is $250,000 or more. Each Contract described in Section 3.18(a) or Section 3.18(b) (which, for avoidance of doubt, shall mean the unredacted version of each such sale Contract) is referred to herein as a “Company Material Contract.”
(c) Neither the Company nor any Company Subsidiary is in breach of or acquisition default under the terms of any Company Material Contract, and, to the knowledge of the Company, no event has occurred that with notice or lapse of time or both would not constitute a breach or default thereunder by the Company or any Company Subsidiary, where such breach or default, individually or together with other such breaches or defaults, would reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any Company Subsidiary has received written notice that any other party to any Material Contract intends to cancel or terminate such Material Contract or to exercise or not exercise any option, extension or renewal right thereunder, where such cancellation or termination, individually or together with other such breaches or defaults, would reasonably be material expected to have a Company Material Adverse Effect. To the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract where such breach or default, individually or together with other such breaches or defaults, would reasonably be expected to have a Company Material Adverse Effect. As of the date hereof, each Company Material Contract is a valid and binding obligation of the Company or a Company Subsidiary, as applicable, and, to the Transferred Entitiesknowledge of the Company, taken as a whole; and
(x) any BGI Affiliate Arrangement that will be in effect after the Closing.
(b) Seller has made available to Buyer prior to the date of this Agreement a complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effect, and is valid and binding on the Transferred Entity that is a party thereto, and, to the Knowledge of Seller, on each other party thereto. There exists no breach or default of any Significant Contract on the part of any Transferred Entity which (with or without notice or lapse of time or both) wouldexcept for such failures as would not, individually or in the aggregate, reasonably be expected to be material have a Company Material Adverse Effect, subject to the Transferred Entities, taken as a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a wholeBankruptcy and Equity Exception.
(c) As of the date hereof, no Transferred Entity has entered into and is bound by or subject to any of the following:
(i) other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practice, any Contract providing for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000;
(ii) other than Contracts entered into in the ordinary course of business, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a whole; or
(iii) other than Contracts entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individually.
(d) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard forms.
Appears in 1 contract
Sources: Merger Agreement (Cellular Dynamics International, Inc.)
Contracts. (a) Except for (A) this Agreement, (B) each Company Plan and (C) each Contract filed as an exhibit to the Filed SEC Documents, Section 4.13(a4.16(a) of the Seller’s Company Disclosure Schedules contains Letter sets forth a complete and correct list of all of the following Contracts, in effect Material Contracts as of the date of this Agreement. For purposes of this Agreement, to which a Transferred Entity is a party, is bound by or subject to, or pursuant “Material Contract” means all Contracts to which the BGI Business Company or any of its Subsidiaries is conducted a party or by which the Company, any of its Subsidiaries or any of their respective properties or assets is bound (the “Specified Contracts”):other than Company Plans and insurance, reinsurance or retrocession treaties, agreements, slips, binders, cover notes or other similar arrangements) that:
(i) any Contract for are or would be required to be filed by the placement, distribution or sale Company as a “material contract” pursuant to Item 601(b)(10) of shares, units or other ownership interests of a Fund that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $5,000,000 in 2009Regulation S-K under the Securities Act;
(ii) any administration agreement or any other Contract for are with an affiliate that would be required to be disclosed under Item 404(a) of Regulation S-K under the provision of administrative services that is reasonably expected to provide for payments to, or provide for payments from a Transferred Entity in 2009 in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or lessExchange Act;
(iii) relate to the formation or management of any Contractjoint venture, partnership or other than a Benefit and Compensation Arrangement, similar agreement that is reasonably expected material to provide for payments tothe business of the Company and its Subsidiaries, or provide for payments from, taken as a Transferred Entity whole (excluding Investment Assets acquired in excess the ordinary course of $10,000,000 in 2009business);
(iv) provide for Indebtedness of the Company or any Contract prohibiting of its Subsidiaries having an outstanding or materially restricting committed amount in excess of $10,000,000, other than any Indebtedness between or among any of the ability Company and any of its Subsidiaries and other than any Transferred Entity to conduct its business, to engage in any business or operate in any geographical area or to compete with any Personletters of credit;
(v) are any Contract for any joint venture, strategic alliance, partnership keepwell or similar arrangement involving a sharing of profits or expenses or payments based on revenues, profits, or assets agreement under management of any Affiliate of Parent which the Company or any Fund of its Subsidiaries has directly guaranteed any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations of the Company or any of its Subsidiaries, in each case involving liabilities or obligations that is reasonably expected to account for revenue to the BGI Business in 2009 in excess of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be are material to the Transferred EntitiesCompany and its Subsidiaries, taken as a whole;
(vi) have been entered into since January 1, 2021, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, that are material to the Company and its Subsidiaries, taken as a whole (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties or other assets in the ordinary course of business);
(vii) prohibit the payment of dividends or distributions in respect of the capital of the Company or any Contract relating of its wholly owned Subsidiaries, prohibit the pledging of the capital of the Company or any wholly owned Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Company;
(viii) contain provisions that prohibit the Company or any of its Subsidiaries from competing in any material line of business or grant a right of exclusivity to any Indebtedness Person which prevents the Company or any Subsidiary of the Company from entering any material territory, market or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on ninety (90) or fewer days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(ix) include an indemnification obligation of the Company or any of its Subsidiaries with a Transferred Entity maximum potential liability in an amount excess of $7,500,000 (other than Contracts between the Company or any of its Subsidiaries and any service providers or insurance agents, brokers, producers, or other distribution partners that contain mutual indemnification obligations entered in the ordinary course of business);
(x) are investment advisory or investment management agreements or arrangements to which the Company or any of its Subsidiaries is a party or under which any Investment Asset is invested or managed or any third party has the right or power to make discretionary or investment decisions with respect to any Investment Asset and, in each case, that are material to the Company and its Subsidiaries, taken as a whole;
(xi) relate to (A) development or assignment of material Intellectual Property or (B) material information technology services (including support, maintenance and hosting agreements);
(xii) involve the settlement of any pending or threatened claim, action or proceeding that requires payment obligations of the Company or any of its Subsidiaries after the date hereof in excess of $5,000,000, other than: (A) any mortgage or similar Indebtedness secured by specific property owned by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closing;
(vii) any Contract (including any so-called take-or-pay or keep well agreements) than claims settled under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any Transferred Entity in respect of the BGI Business that would reasonably be expected to be material to the Transferred Entities, taken as a whole, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person (other than any Transferred Entity) in each case in excess of $10,000,000;
(viii) any Contract that provides for earn-outs or other similar contingent obligations that would reasonably be expected to result in annual payments in 2009 of $5,000,000 or more;
(ix) any Contract entered into since January 1, 2007 for the acquisition or disposition of a Person or a division of a Person, or for the acquisition or sale of any assets (including Intellectual Property), properties, equity interests or rights, other than any such sale or acquisition Company Insurance Policies in the ordinary course of business and within applicable policy limits;
(xiii) (A) grant any right of first refusal, right of first offer or similar right with respect to any material assets, rights or properties of the Company or any such sale of its Subsidiaries or acquisition (B) obligate the Company or any of its Subsidiaries to conduct business on an exclusive or preferential basis or that would not reasonably be expected to be contains a “most favored nation” or similar covenant with any third party and that are material to the Transferred EntitiesCompany and its Subsidiaries, taken as a whole; and;
(xxiv) contains a license or grant of rights in, to or under material Intellectual Property (excluding licenses granted to or for the benefit of the Company or any BGI Affiliate Arrangement that will be in effect after the Closingof its Subsidiaries of commercially available, “off-the-shelf” Software available on standard terms for an annual payment of less than $1,500,000 and licenses of Open Source Software);
(xv) are material Company Leases; or
(xvi) are collective bargaining agreements or other agreements with any labor union, works council, trade union, labor association or other employee representative organization.
(b) Seller has made available to Buyer prior to the date of this Agreement a complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 Each Material Contract is valid and binding on the Company and/or any of revenue its Subsidiaries to the BGI Business on an annualized basis extent such Person is a party thereto, as applicable, and, to the Knowledge of the Company, each other party thereto, and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effect, except where the failure to be valid, binding or in full force and is valid effect would not reasonably be expected to have a Company Material Adverse Effect, (ii) the Company and binding on the Transferred Entity that is a party theretoeach of its Subsidiaries, and, to the Knowledge of Sellerthe Company, on each any other party thereto. There exists no breach or default , has performed all obligations required to be performed by it under each Material Contract, except where such noncompliance would not reasonably be expected to have a Company Material Adverse Effect, (iii) neither the Company nor any of its Subsidiaries has received written notice of the existence of any Significant Contract on the part of any Transferred Entity event or condition which (with or without constitutes, or, after notice or lapse of time or both) would, individually will constitute, a default on the part of the Company or in the aggregateany of its Subsidiaries under any Material Contract, except where such default would not reasonably be expected to be material have a Company Material Adverse Effect, (iv) to the Transferred EntitiesKnowledge of the Company, taken there are no events or conditions which constitute, or, after notice or lapse of time or both, will constitute a default on the part of any counterparty under such Material Contract, except as would not reasonably be expected to have a whole. No Transferred Entity Company Material Adverse Effect and (v) neither the Company nor any of its Subsidiaries has received any written notice of an intention from any other party to a Material Contract that such other party intends to terminate, not to renew or to challenge renegotiate in any material respect the validity or enforceability terms of any Significant such Material Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, except as would not reasonably be expected to be material to the Transferred Entities, taken as have a wholeCompany Material Adverse Effect.
(c) As of the date hereof, no Transferred Entity has entered into and is bound by or subject to any of the following:
(i) other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practice, any Contract providing for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000;
(ii) other than Contracts entered into in the ordinary course of business, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a whole; or
(iii) other than Contracts entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individually.
(d) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard forms.
Appears in 1 contract
Contracts. (a) Section 4.13(a) 4.17 of the Seller’s B&W Disclosure Schedules contains Letter sets forth a complete and correct list of all of the following Contracts, in effect as of the date of this Agreement, Agreement of each of the following types of Contracts relating to which a Transferred Entity is a party, is bound by the B&W Business (except to the extent such Contracts relate solely to Excluded Assets or subject to, or pursuant to which the BGI Business is conducted (the “Specified Contracts”Excluded Liabilities):
(i) any material Contract for the placementgranting any person a right of first refusal, distribution or sale of shares, units first offer or other ownership interests of a Fund that is reasonably expected right to provide for payments to, or provide for payments from, a Transferred Entity in excess of $5,000,000 in 2009purchase any Contributed Asset;
(ii) any administration agreement material loan agreement, indenture, mortgage, promissory note, pledge, hypothecation, deed of trust, conditional sale or any title retention agreement, security agreement, equipment financing obligation, guaranty or other Contract for the provision source of administrative services that is reasonably expected to provide for payments to, or provide for payments from a Transferred Entity in 2009 in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or lesscontingent liability;
(iii) any ContractContract for the purchase or other acquisition by B&W or any B&W Subsidiary of goods or services or other assets that provides for annual payments by B&W or any B&W Subsidiary of $20,000,000 or more, other than a Benefit and Compensation Arrangement, that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess the ordinary course of $10,000,000 in 2009business;
(iv) any Contract prohibiting providing for the sale or materially restricting other disposition after the ability date of this Agreement by B&W or any Transferred Entity B&W Subsidiary to conduct its another person of goods or services for $20,000,000 or more, other than in the ordinary course of business, to engage in any business or operate in any geographical area or to compete with any Person;
(v) any partnership, joint venture or other similar Contract for any joint venture, strategic alliance, partnership or similar arrangement involving a sharing of profits or expenses or payments based on revenues, profits, or assets under management of any Affiliate of Parent or any Fund that is reasonably expected to account for revenue to the BGI Business in 2009 in excess of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be material to the Transferred Entities, taken as a wholearrangement;
(vi) any Contract relating to the acquisition or disposition of any Indebtedness business (whether by merger, consolidation, sale of a Transferred Entity stock, sale of assets or otherwise) or the making of any capital expenditures, in an amount each case after the date of this Agreement, in excess of $5,000,000, other than: (A) any mortgage or similar Indebtedness secured by specific property owned by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closing20,000,000;
(vii) any material license, assignment, transfer or similar Contract (including pursuant to which any so-called take-or-pay third party has rights to use or keep well agreements) under which (A) own any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations material Intellectual Property of any Transferred Entity in respect of the BGI Business that would reasonably be expected to be material to the Transferred Entities, taken as a whole, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person (other than any Transferred Entity) in each case in excess of $10,000,000B&W;
(viii) any material Contract that provides for earn-outs would materially restrict the ability of ▇▇▇▇▇▇▇▇ American or other similar contingent obligations that would reasonably be expected any of its subsidiaries to result compete in annual payments any line of business in 2009 of $5,000,000 or moreany geographic area;
(ix) any Contract entered into since January 1, 2007 for the acquisition with (A) B&W or disposition any affiliate of a Person B&W (other than B&W or a division of a Person, B&W Subsidiary) or for the acquisition or sale of (B) any assets B&W Personnel (including Intellectual Property), properties, equity interests or rights, other than any such sale B&W Benefit Agreements or acquisition in the ordinary course of business or any such sale or acquisition that would not reasonably be expected to be material to the Transferred Entities, taken as a wholeB&W Benefit Plans); andor
(x) any BGI Affiliate Arrangement that will be in effect after the Closing.
(b) Seller has made available to Buyer prior to the date of this Agreement a complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effect, and is valid and binding on the Transferred Entity that is a party thereto, and, to the Knowledge of Seller, on each other party thereto. There exists no breach or default of any Significant Contract on the part of any Transferred Entity which (with or without notice or lapse of time or both) would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.
(c) As of the date hereof, no Transferred Entity has entered into and is bound by or subject to any of the following:
(i) other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practice, any Contract providing for the indemnification of any Person person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected material liabilities relating to result in aggregate indemnification payments by a Transferred Entity in excess any former (not current) business of $10,000,000;
(ii) other than Contracts entered into in the ordinary course of businessB&W, any type of Contract to cap fees, share fees B&W Subsidiary or other payments, share expenses, waive fees any affiliate or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a whole; or
(iii) other than Contracts entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individuallypredecessor person thereof.
(d) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard forms.
Appears in 1 contract
Sources: Business Combination Agreement (Rj Reynolds Tobacco Holdings Inc)
Contracts. Except for documents filed or listed as exhibits to the Company Reports filed with the SEC subsequent to December 31, 2003 and prior to the date hereof, neither the Company nor any of its Subsidiaries is a party to or bound by any (a) Section 4.13(acontract, agreement or arrangement (including any lease of real property) of the Seller’s Disclosure Schedules contains a complete and correct list of all of the following Contracts, in effect as of the date of this Agreement, to which a Transferred Entity is a party, is bound by or subject to, or pursuant to which the BGI Business is conducted (the “Specified Contracts”):
(i) any Contract for the placement, distribution or sale of shares, units or other ownership interests of a Fund that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $5,000,000 in 2009;
(ii) any administration agreement or any other Contract for the provision of administrative services that is reasonably expected to provide for payments to, or provide for payments from a Transferred Entity in 2009 in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or less;
(iii) any Contract, other than a Benefit and Compensation Arrangement, that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $10,000,000 in 2009;
(iv) any Contract prohibiting or materially restricting the ability of the Company or any Transferred Entity of its Subsidiaries (or after the Merger, Parent or any of its Subsidiaries) to compete in or conduct its business, any line of business or to engage in any business or operate in any geographical area geographic area, (ii) relating to indebtedness for borrowed money providing for payment or to compete with any Person;
(v) any Contract for any joint venture, strategic alliance, partnership or similar arrangement involving a sharing of profits or expenses or payments based on revenues, profits, or assets under management of any Affiliate of Parent or any Fund that is reasonably expected to account for revenue to the BGI Business in 2009 repayment in excess of $10,000,000 on an annual 400,000, (or annualizediii) basis or that would reasonably be expected to be material to the Transferred Entities, taken as a whole;
(vi) any Contract relating to any Indebtedness of a Transferred Entity in an amount in excess of $5,000,000material joint venture, other than: (A) any mortgage partnership, strategic alliance or similar Indebtedness secured by specific property owned by arrangement, (iv) requiring the Company or on behalf any of a Client; (B) its Subsidiaries to register for resale under the Securities Act any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closing;
(vii) any Contract (including any so-called take-or-pay or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any Transferred Entity in respect securities of the BGI Business that would reasonably be expected to be material Company or any of its Subsidiaries, (v) relating to the Transferred Entities, taken as a whole, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person (other than any Transferred Entity) in each case in excess of $10,000,000;
(viii) any Contract that provides for earn-outs or other similar contingent obligations that would reasonably be expected to result in annual payments in 2009 of $5,000,000 or more;
(ix) any Contract entered into since January 1, 2007 for the acquisition or disposition of a Person or a division of a Person, or for the acquisition or sale of any assets (including Intellectual Property), properties, equity interests or rights, other than any such sale or acquisition in the ordinary course of business or any such sale or acquisition that would material assets not reasonably be expected to be material to the Transferred Entities, taken as a whole; and
(x) any BGI Affiliate Arrangement that will be in effect after the Closing.
(b) Seller has made available to Buyer prior to the date of this Agreement a complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effect, and is valid and binding on the Transferred Entity that is a party thereto, and, to the Knowledge of Seller, on each other party thereto. There exists no breach or default of any Significant Contract on the part of any Transferred Entity which (with or without notice or lapse of time or both) would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.
(c) As of the date hereof, no Transferred Entity has entered into and is bound by or subject to any of the following:
(i) other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practice, any Contract providing for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000;
(ii) other than Contracts entered into in the ordinary course of business, (vi) containing any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a whole; or
(iii) other than Contracts entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to coso-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individually.
(d) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any called “most favored nation” provisions or any similar provision in requiring the Company or any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form Subsidiaries (or after the Merger, Parent or any of counterparty security lending its Subsidiaries) to offer a third party terms or concessions at least as favorable as offered to one or more other parties, (borrower defaultvii) indemnity Contract and providing for “performance guarantees” or contingent payments by the Company or any of its forms of cash fund capital support ContractsSubsidiaries, in each case provided to certain funds and clients involving more than $400,000 over the term of the securities lending relevant contract, (viii) between the Company and/or any of its Subsidiaries and any of their shareholders and Affiliates, (ix) providing for exclusive dealings or short-requirements contracts imposed on the Company or any of its Subsidiaries, (x) containing any change of control provision and involving more than $400,000 over the term cash businesses of the BGI Businessrelevant contract, or (xi) with ITLX, or (b) financial derivatives master agreements, confirmation, or futures account opening agreements and/or brokerage statements evidencing financial hedging or other trading activities. The Company and each of its Subsidiaries has performed, in all material respects, all of its obligations under each such contract to which it or any of its Subsidiaries is a party or by which it is bound, and none all such contracts are in full force and effect. To the Knowledge of the Contracts used by Company, each other Person that is a party to, or bound by, any of the Transferred Entities for foregoing contracts has performed, in all material respects, all of its obligations thereunder. The Company has not received any written notice that any party to any of the foregoing contracts intends to terminate such purposes materially deviates from such standard formscontract.
Appears in 1 contract
Sources: Merger Agreement (Supervalu Inc)
Contracts. (a) Except for this Agreement and, as applicable, any Contract listed in Item 15 of the Company’s Annual Report on Form 10-K for the year ended December 31, 2018, any Contract attached as an exhibit to any SEC filing by the Company between January 1, 2019 and the date of this Agreement, and any Contract set forth on Section 4.13(a3.16(a) of the Seller’s Company Disclosure Schedules contains Letter, neither the Company nor any Company Subsidiary is a complete and correct list of all party to or bound by any of the following Contracts, in effect as of the date of this Agreement, to which a Transferred Entity is a party, is bound by or subject to, or pursuant to which the BGI Business is conducted (the “Specified Contracts”)::
(i) any Contract for which is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K promulgated by the placement, distribution or sale of shares, units or other ownership interests of a Fund that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $5,000,000 in 2009SEC);
(ii) any administration agreement non-competition Contract or other Contract that purports to limit in any material respect either the type of business in which the Company or any other Contract for of the provision Company Subsidiaries or any of administrative services that is reasonably expected to provide for payments to, their respective Affiliates may engage or provide for payments from a Transferred Entity the manner or geographic area in 2009 in excess which any of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or less;
(iii) any Contract, other than a Benefit and Compensation Arrangement, that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $10,000,000 in 2009;
(iv) any Contract prohibiting or materially restricting the ability of any Transferred Entity to conduct its business, to them may so engage in any business or operate in contains any geographical area or to compete with any Personmaterial exclusivity provisions;
(v) any Contract for any joint venture, strategic alliance, partnership or similar arrangement involving a sharing of profits or expenses or payments based on revenues, profits, or assets under management of any Affiliate of Parent or any Fund that is reasonably expected to account for revenue to the BGI Business in 2009 in excess of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be material to the Transferred Entities, taken as a whole;
(vi) any Contract relating to any Indebtedness of a Transferred Entity in an amount in excess of $5,000,000, other than: (A) any mortgage or similar Indebtedness secured by specific property owned by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closing;
(vii) any Contract (including any so-called take-or-pay or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any Transferred Entity in respect of the BGI Business that would reasonably be expected to be material to the Transferred Entities, taken as a whole, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person (other than any Transferred Entity) in each case in excess of $10,000,000;
(viii) any Contract that provides for earn-outs or other similar contingent obligations that would reasonably be expected to result in annual payments in 2009 of $5,000,000 or more;
(ixiii) any Contract entered into since January 1, 2007 2019 pursuant to which the Company or any Company Subsidiary has completed or agreed to complete any acquisition or disposition of properties or assets that would have required the consent of Parent under Section 5.01(b)(iii) or (iv) if it had been completed after the date of this Agreement;
(iv) any Contract for the acquisition or disposition of a properties or assets of the Company or the Company Subsidiaries pursuant to which the Company or any Company Subsidiary is subject to continuing “earn-out” or similar deferred payment obligations that could reasonably be expected to result in payments by the Company or the Company Subsidiaries in an amount in excess of $1,000,000;
(v) any Company Collective Bargaining Agreement;
(vi) any partnership, limited liability company or joint venture agreement where the Company or any Company Subsidiary, directly or indirectly, owns an equity interest in the partnership, limited liability company or joint venture;
(vii) any stockholders, investors rights, registration rights or similar agreement or arrangement;
(viii) any Contract for capital expenditures in excess of $5,000,000;
(ix) any Company Lease requiring payments by the Company or any Company Subsidiary in excess of $1,000,000 during 2019 or any subsequent calendar year;
(x) any Contract (A) evidencing Indebtedness of the Company or any Company Subsidiary or pursuant to which the Company or any Company Subsidiary has guaranteed any Indebtedness (other than consumer credit or capital lease obligations incurred in the Ordinary Course of Business), or (B) under which the Company or any Company Subsidiary (1) has, directly or indirectly, made any loan or advance to any Person that remains outstanding (excluding any extensions of credit or a division delayed collection of a trade payables in the Ordinary Course of Business) or (2) is obligated to make any capital contribution to, or other investment in, any Person, or for in the acquisition or sale case of any assets this subclause (including Intellectual Property), properties, equity interests or rightsB) with outstanding obligations in excess of $1,000,000, other than any such sale Indebtedness, loans, advances, capital contributions or acquisition other investments solely between or among the Company and one or more wholly owned Company Subsidiaries; or
(xi) any Contract (other than any Contract of the type described in clauses (i) through (x) above) (A) under which the ordinary course of business Company or any Company Subsidiary is reasonably expected to receive payments of more than $5,000,000 during 2019 or any subsequent calendar year (other than payments to the Company or any Company Subsidiary for advertising, marketing or promotion and excluding Contracts for the supply of newsprint by the Company or a Company Subsidiary where the Company’s or a Company Subsidiary’s net receipts under such sale Contract, after subtracting the cost to the Company and any applicable Company Subsidiary of the newsprint being supplied, does not exceed more than $5,000,000 during 2019 or acquisition that would not reasonably be expected to exceed such amount during any subsequent calendar year) or (B) that by its express terms (1) requires the payment or is reasonably expected to require the payment by the Company or any Company Subsidiary of more than $2,500,000 during 2019 or any subsequent calendar year, or more than $5,000,000 in the aggregate during the remaining term of such Contract, and (2) cannot be terminated within twelve (12) months after giving notice of termination without resulting in any material cost, penalty or liability to the Transferred Entities, taken Company or any Company Subsidiary. Each Contract to which the Company or any Company Subsidiary is a party of the type described in clauses (i) through (xi) of this Section 3.16(a) is referred to in this Agreement as a whole; and
(x) any BGI Affiliate Arrangement that will be in effect after the Closing“Company Material Contract”.
(b) Seller The Company has delivered or made available to Buyer Parent correct and complete copies of each Company Material Contract and all amendments, modifications and side letters with respect thereto entered into prior to the date of this Agreement a complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue Except to the BGI Business on an annualized basis extent that it has previously expired or been terminated by the Company or the applicable Company Subsidiary in accordance with its terms, each Company Material Contract is valid and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effecteffect in all material respects, and is valid enforceable against the Company or any Company Subsidiary party thereto (and binding on to the Transferred Entity that Knowledge of the Company is a enforceable against each other party thereto) in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or similar laws of general applicability relating to or affecting creditors’ rights generally, or by general principles of equity.
(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) neither the Company nor any Company Subsidiary is and, to the Knowledge of Sellerthe Company, on each no other party thereto. There exists no is, in breach or violation of, or in default under, any Company Material Contract and (ii) to the Knowledge of the Company, no event has occurred which would result in a breach or violation of, or a default under, any Significant Company Material Contract on the part of any Transferred Entity which (in each case, with or without notice or lapse of time or both) would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole).
(c) As of the date hereof, no Transferred Entity has entered into and is bound by or subject to any of the following:
(i) other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practice, any Contract providing for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000;
(ii) other than Contracts entered into in the ordinary course of business, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a whole; or
(iii) other than Contracts entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individually.
(d) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard forms.
Appears in 1 contract
Sources: Merger Agreement (Gannett Co., Inc.)
Contracts. (a1) All Contracts, including amendments thereto, required to be filed as an exhibit to any report of the Company filed pursuant to the Exchange Act since January 1, 2019 of the type described in Item 601(b)(10) of Regulation S-K promulgated by the SEC have been filed with the SEC. All such filed Contracts shall be deemed to have been made available to Parent and to Merger Sub.
(2) Except for this Agreement and Contracts described in Section 4.13(a3.15(a), Section 3.15(b) of the Seller’s Company Disclosure Schedules contains Letter sets forth a complete and correct list of all the Contracts to which the Company or any of its Subsidiaries is a party or by which the following ContractsCompany, in effect any of its Subsidiaries or any of their respective properties or assets is bound as of the date of this AgreementAgreement (other than any Company Plans, Company Reinsurance Contracts, Company Insurance Policies, and any contracts, agreements, instruments or commitments that relate to which a Transferred Entity is a partythe acquisition, is bound by disposition or subject to, or pursuant to which the BGI Business is conducted custody of any Company Investment Assets) (the Contracts required to be listed in Section 3.15(b) of the Company Disclosure Letter, together with the Contracts described in Section 3.15(a), collectively, “Specified Company Material Contracts”):) that:
(ia) any Contract for are with an affiliate that would be required to be disclosed under Item 404(a) of Regulation S-K under the placement, distribution or sale of shares, units or other ownership interests of a Fund that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $5,000,000 in 2009Exchange Act;
(iib) any administration agreement relate to the formation or any other Contract for the provision of administrative services that is reasonably expected to provide for payments to, or provide for payments from a Transferred Entity in 2009 in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or less;
(iii) any Contract, other than a Benefit and Compensation Arrangement, that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $10,000,000 in 2009;
(iv) any Contract prohibiting or materially restricting the ability of any Transferred Entity to conduct its business, to engage in any business or operate in any geographical area or to compete with any Person;
(v) any Contract for any joint venture, strategic alliance, partnership or similar arrangement involving a sharing of profits or expenses or payments based on revenues, profits, or assets under management of any Affiliate of Parent joint venture or any Fund partnership that is reasonably expected to account for revenue to the BGI Business in 2009 in excess of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be material to the Transferred Entitiesbusiness of the Company and its Subsidiaries, taken as a whole;
(vic) any Contract relating to any provide for Indebtedness of a Transferred Entity in the Company or any of its Subsidiaries having an outstanding or committed amount in excess of $5,000,0002,000,000, other than: (A) any mortgage or similar Indebtedness secured by specific property owned by or on behalf of a Client; (B) than any Indebtedness solely between Transferred Entities; or (C) among any Indebtedness for which no Transferred Entity will be liable following of the ClosingCompany and any of its Subsidiaries and other than any letters of credit;
(viid) any Contract (including any so-called take-or-pay or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any Transferred Entity in respect of the BGI Business that would reasonably be expected to be material to the Transferred Entities, taken as a whole, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person (other than any Transferred Entity) in each case in excess of $10,000,000;
(viii) any Contract that provides for earn-outs or other similar contingent obligations that would reasonably be expected to result in annual payments in 2009 of $5,000,000 or more;
(ix) any Contract have been entered into since January 1, 2007 2019, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $2,000,000 (excluding, for the acquisition avoidance of doubt, acquisitions or disposition dispositions of a Person or a division investments made pursuant to the investment policies and guidelines of a Personthe Company (the “Company Investment Guidelines”), or for the acquisition of supplies, products, properties or sale of any other assets (including Intellectual Property), properties, equity interests or rights, other than any such sale or acquisition in the ordinary course of business);
(e) impose material exclusivity (other than non-competition covenants) or non-solicitation obligations on the Company or any of its Subsidiaries (including Parent or any of its Subsidiaries following the Effective Time), except for confidentiality or commercial agreements entered into in the ordinary course of business;
(f) contain provisions that prohibit the Company or any of its Subsidiaries from competing in any material line of business or grant a right of exclusivity to any Person which prevents the Company or any Subsidiary of the Company from entering any material territory, market or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such sale restrictive provisions) by the Company or acquisition that any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(g) involve or would not reasonably be expected likely to be material involve aggregate payments by or to the Transferred EntitiesCompany and/or its Subsidiaries in excess of $2,000,000 in any twelve (12)-month period, taken as a whole; and
other than (x) Contracts that can be terminated by the Company or any BGI Affiliate Arrangement that will be of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty or (y) commercial agreements entered into in effect after the Closing.ordinary course of business;
(bh) Seller has made available to Buyer prior to include an indemnification obligation of the date Company or any of this Agreement its Subsidiaries with a complete and correct copy maximum potential liability in excess of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each $5,000,000;
(i) Specified Contractare investment advisory or investment management agreements or arrangements to which the Company or any of its Subsidiaries is a party pursuant to which assets valued at $35,000,000 or greater are managed;
(j) are suretyship contracts, (ii) Investment Advisory Arrangement performance bonds, working capital maintenance agreements or other forms of guaranty agreements pursuant to which accounts for more than $1,000,000 or more is guaranteed, other than insurance or reinsurance contracts, letters of revenue credit, surety bonds or other forms of security entered into in the ordinary course of business;
(k) prohibit the payment of dividends or distributions in respect of the capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the capital stock of the Company or any of its Subsidiaries or prohibit the issuance of any guarantee by the Company or any of its Subsidiaries; or
(l) related to (A) development, assignment or licensing of Intellectual Property or (B) information technology services (including support, maintenance and hosting agreements), in each case involving or reasonably likely to involve aggregate payments by or to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity Company and/or its Subsidiaries in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees any twelve (12)-month period.
(3) Each of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effect, and Company Material Contracts is valid and binding on the Transferred Entity that Company and each of its Subsidiaries to the extent the Company or such Subsidiary is a party thereto, thereto and, to the Knowledge of Sellerthe Company, on each other party thereto. There exists no breach thereto and is in full force and effect (subject to the Bankruptcy and Equity Exception), except for such failures to be valid and binding or default of any Significant Contract on the part of any Transferred Entity to be in full force and effect which (with or without notice or lapse of time or both) wouldwould not, individually or in the aggregate, reasonably be expected likely to be material have a Company Material Adverse Effect. There is no breach or default under any Company Material Contract by the Company or any of its Subsidiaries and to the Transferred EntitiesKnowledge of the Company, taken no event has occurred that with the lapse of time or the giving of notice or both would constitute a default thereunder by the Company or any of its Subsidiaries, in each case except as a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which wouldwould not, individually or in the aggregate, reasonably be expected likely to have a Company Material Adverse Effect. Except as would not reasonably be material likely to have a Company Material Adverse Effect, neither the Transferred Entities, taken as a whole.
(c) As of the date hereof, no Transferred Entity has entered into and is bound by or subject to Company nor any of its Subsidiaries has received written notice from any other party to a Company Material Contract that such other party intends to terminate, not renew, or renegotiate the following:
(i) other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practice, any Contract providing for the indemnification terms of any Person such Company Material Contract (except in accordance with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000;
(ii) other than Contracts entered into in the ordinary course of business, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a whole; or
(iii) other than Contracts entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individuallyterms thereof).
(d) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard forms.
Appears in 1 contract
Contracts. (a) Except as disclosed in the applicable subsection in Section 4.13(a) 4.16 of the Seller’s Company Disclosure Schedules contains a complete and correct list of all of Schedule (which is arranged in subsections numbered (i) to (xiv) to correspond to the following Contracts, in effect as of the date subsections of this AgreementSection 4.16(a)), to which a Transferred Entity is a party, neither the Company nor any of its Subsidiaries is bound by or subject a party to, or pursuant to which the BGI Business is conducted (the “Specified Contracts”)::
(i) any Contract Contractual Obligation (or group of related Contractual Obligations) for the placementpurchase, distribution sale, construction, repair or sale maintenance of sharesinventory, units raw materials, commodities, supplies, goods, products, equipment or other ownership interests property, or for the furnishing or receipt of services, in each case, the performance of which will extend over a Fund that is period of more than one year or which provides for (or would be reasonably expected to provide for involve) annual payments to, to or provide for payments from, a Transferred Entity by the Company or any of its Subsidiaries in excess of $5,000,000 100,000 or aggregate payments to or by the Company or any of its Subsidiaries in 2009excess of $250,000;
(ii) any administration agreement Contractual Obligation relating to the acquisition or disposition by the Company or any of its Subsidiaries of (A) any business (whether by merger, consolidation or other Contract for business combination, sale of securities, sale of assets or otherwise) or (B) any material Asset (other than in the provision Ordinary Course of administrative services that is reasonably expected to provide for payments to, or provide for payments from a Transferred Entity in 2009 in excess Business of $10,000,000 the Company and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or lessSubsidiaries);
(iii) any ContractContractual Obligation concerning or consisting of a partnership, other than a Benefit and Compensation Arrangementlimited liability company, that is reasonably expected to provide for payments to, joint venture or provide for payments from, a Transferred Entity in excess of $10,000,000 in 2009similar agreement;
(iv) any Contract prohibiting Contractual Obligation under which the Company or materially restricting any of its Subsidiaries has permitted any Asset to become Encumbered (other than by a Permitted Encumbrance);
(v) any Contractual Obligation (A) under which the ability Company or any of its Subsidiaries has created, incurred, assumed or guaranteed any Debt or (B) under which any other Person has guaranteed any Debt of the Company or any of its Subsidiaries;
(vi) any Contractual Obligation containing covenants that in any way purport to (A) restrict any business activity (including the solicitation, hiring or engagement of any Transferred Entity to conduct Person or the solicitation of any customer) of the Company or any of its business, Subsidiaries or any Affiliate thereof or (B) limit the freedom of the Company or any of its Subsidiaries or any Affiliate thereof to engage in any line of business or operate in any geographical area or to compete with any Person;
(v) any Contract for any joint venture, strategic alliance, partnership or similar arrangement involving a sharing of profits or expenses or payments based on revenues, profits, or assets under management of any Affiliate of Parent or any Fund that is reasonably expected to account for revenue to the BGI Business in 2009 in excess of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be material to the Transferred Entities, taken as a whole;
(vi) any Contract relating to any Indebtedness of a Transferred Entity in an amount in excess of $5,000,000, other than: (A) any mortgage or similar Indebtedness secured by specific property owned by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closing;
(vii) any Contract (including Contractual Obligation under which the Company or any so-called take-or-of its Subsidiaries is, or may become, obligated to incur any severance pay or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or Compensation obligations of any Transferred Entity in respect of the BGI Business that would reasonably be expected to be material to become payable by reason of this Agreement or the Transferred Entities, taken as a whole, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person (other than any Transferred Entity) in each case in excess of $10,000,000Contemplated Transactions;
(viii) any Contract that provides for earn-outs Contractual Obligation under which the Company or any of its Subsidiaries is, or may, have any Liability to any investment bank, broker, financial advisor, finder or other similar contingent obligations that would reasonably be expected Person (including an obligation to result pay any legal, accounting, brokerage, finder’s, or similar fees or expenses) in annual payments in 2009 of $5,000,000 connection with this Agreement or morethe Contemplated Transactions;
(ix) any Contract entered into since January 1, 2007 Contractual Obligation providing for the acquisition employment or disposition of a Person or a division of a Person, or for the acquisition or sale consultancy of any assets Person on a full-time, part-time, consulting or other basis or otherwise providing Compensation or other benefits to any officer, director, employee or consultant (including Intellectual Property), properties, equity interests or rights, other than any such sale or acquisition in the ordinary course of business or any such sale or acquisition that would not reasonably be expected to be material to the Transferred Entities, taken as a whole; andCompany Plan);
(x) any BGI material agency, dealer, distributor, sales representative, marketing or other similar Contractual Obligation;
(xi) any outstanding general or special powers of attorney executed by or on behalf of the Company or any of its Subsidiaries;
(xii) any Contractual Obligation, other than Real Property Leases relating to the lease or license of any Asset, including Company Products and Intellectual Property Rights (and including all customer license and maintenance agreements) that is not included in Section 4.11(d) of the Company Disclosure Schedule;
(xiii) any Contractual Obligation under which the Company or any of its Subsidiaries has advanced or loaned an amount to any of its Affiliates or employees other than in the Ordinary Course of Business; and
(xiv) any other Contractual Obligation between the Company and any of its Subsidiaries, on the one hand, and any Securityholder (or Affiliate Arrangement or Family Member thereof), on the other hand, that will be continue in effect after the Closing.
(b) Seller . The Company has delivered or made available to Buyer prior to the date of this Agreement a Parent accurate and complete and correct copy copies of each written Specified Contract (except Contractual Obligation listed in certain instances such Specified Contracts Section 4.16 of the Company Disclosure Schedule, in each case, as amended or portions thereof have been withheld as described otherwise modified and in Seller’s Disclosure Schedules effect. The Company has delivered or redacted) and accurate and complete descriptions made available to Parent a written summary setting forth all of all the material terms and conditions of each oral Specified Contract, including all material amendments, modifications and supplements thereto as Contractual Obligation listed in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effect, and is valid and binding on the Transferred Entity that is a party thereto, and, to the Knowledge of Seller, on each other party thereto. There exists no breach or default of any Significant Contract on the part of any Transferred Entity which (with or without notice or lapse of time or both) would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.
(c) As Section 4.16 of the date hereof, no Transferred Entity has entered into and is bound by or subject to any of the following:
(i) other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practice, any Contract providing for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000;
(ii) other than Contracts entered into in the ordinary course of business, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a whole; or
(iii) other than Contracts entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individuallyCompany Disclosure Schedule.
(d) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard forms.
Appears in 1 contract
Contracts. (a) Section 4.13(a) Neither the Company nor any of the Seller’s Disclosure Schedules contains a complete and correct list of all of the following Contracts, in effect as of the date of this Agreement, to which a Transferred Entity its Subsidiaries is a partyparty or is bound or otherwise has rights or benefits under, and none of their respective properties or other assets is bound by or subject to, or pursuant to which the BGI Business is conducted (the “Specified Contracts”):
(i) any Contract for the placement, distribution or sale of shares, units or other ownership interests of a Fund that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $5,000,000 in 2009;
(ii) any administration agreement or any other Contract for the provision of administrative services that is reasonably expected to provide for payments to, or provide for payments from a Transferred Entity in 2009 in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or less;
(iii) any Contract, other than a Benefit and Compensation Arrangement, that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $10,000,000 in 2009;
(iv) any Contract prohibiting or materially restricting the ability of any Transferred Entity to conduct its business, to engage in any business or operate in any geographical area or to compete with any Person;
(v) any Contract for any joint venture, strategic alliance, partnership or similar arrangement involving a sharing of profits or expenses or payments based on revenues, profits, or assets under management of any Affiliate of Parent or any Fund that is reasonably expected to account for revenue to the BGI Business in 2009 in excess of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be material to the Transferred Entities, taken as a whole;
(vi) any Contract relating to any Indebtedness of a Transferred Entity in an amount in excess of $5,000,000, other than: (A) any mortgage or similar Indebtedness secured by specific property owned by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closing;
(vii) any Contract (including any so-called take-or-pay or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any Transferred Entity in respect of the BGI Business that would reasonably be expected to be material to the Transferred Entities, taken as a whole, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person (other than any Transferred Entity) in each case in excess of $10,000,000;
(viii) any Contract that provides for earn-outs or other similar contingent obligations that would reasonably be expected to result in annual payments in 2009 of $5,000,000 or more;
(ix) any Contract entered into since January 1, 2007 for the acquisition or disposition is of a Person nature required to be filed as an exhibit to a report or a division of a Person, filing under the Securities Act or for the acquisition or sale of any assets (including Intellectual Property), properties, equity interests or rightsExchange Act, other than any such sale or acquisition in the ordinary course of business or any such sale or acquisition that would not reasonably be expected to be material to the Transferred Entities, taken as a whole; and
(x) any BGI Affiliate Arrangement that will be in effect after the Closing.
(b) Seller has made available to Buyer prior to the date of this Agreement a complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effect, and is valid and binding on the Transferred Entity that is a party thereto, and, filed as an exhibit to the Knowledge of Seller, on each other party theretoFiled Company SEC Documents. There exists no breach or default of any Significant Contract on the part of any Transferred Entity which (with or without notice or lapse of time or both) would, individually or in the aggregate, reasonably be expected to be material Except for Contracts filed as exhibits to the Transferred Entities, taken as a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.
(c) As of the date hereof, no Transferred Entity has entered into Filed Company SEC Documents and is bound by or subject to any of the following:
(i) other than investment management and distribution Contracts purchase orders entered into in the ordinary course of business consistent with past practicepractice (but not the Contracts pursuant to which such purchase orders were issued), Section 3.10 of the Company Disclosure Letter sets forth (with specific reference to the Subsection to which it relates), as of the date hereof, a true and complete list of, and the Company has provided the Parent access to true and complete copies of (collectively, the Contracts required to be listed in the Company Disclosure Letter, "Section 3.10 Contracts"):
(i) each Contract of the Company or any of its Subsidiaries involving aggregate annual payments by or to the Company or any of its Subsidiaries, of more than $100,000, other than any Contract providing for set forth on Section 3.13, 3.14(a) or 3.16(a) of the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000Company Disclosure Letter;
(ii) (A) all Contracts pursuant to which any indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred (collectively, "debt obligations"), (B) all Contracts of or by the Company or any of its Subsidiaries guaranteeing any debt obligations of any other person (other than the Company or any of its Subsidiaries), including the respective aggregate principal amounts outstanding as of the date hereof, and (C) all Contracts entered into in involving any "keep well" arrangements or pursuant to which the ordinary course Company or any of business, its Subsidiaries has agreed to maintain any type financial statement condition of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a whole; oranother person;
(iii) other than all Contracts entered into in between the ordinary course Company or any of business consistent with past practiceits Subsidiaries and any vendor or supplier of the Company or any of its Subsidiaries to whom the Company or any of its Subsidiaries has paid or has an annual payment obligation to, and each customer of the Company or any Contract requiring any Transferred Entity (A) of its Subsidiaries who has paid or is obligated to co-invest with any other Personpay the Company and its Subsidiaries, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individually.400,000 in either 2004 or to date in 2005 (each such vendor, supplier or customer, a "Major Business Partner");
(div) Notwithstanding anything (A) all Contracts pursuant to which the contrary contained Company or any of its Subsidiaries has agreed not to, or which, following the consummation of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company and its Subsidiaries to compete with any person in this Agreementany business or in any geographic area or to engage in any business or other activity, including any restrictions relating to "exclusivity" or any similar requirement in no event shall Specified favor of any person other than the Company or any of its Subsidiaries or pursuant to which any benefit is required to be given or lost as a result of so competing or engaging, and (B) all Contracts include pursuant to which the Company or any Investment Advisory Arrangement.of its Subsidiaries has agreed not to, or which, following the consummation of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company and its Subsidiaries to solicit or to hire any person for positions in which annual compensation would be expected to exceed $100,000 to work for the Company or any of its Subsidiaries (either as an employee or as an independent contractor or other agent) or pursuant to which any benefit is required to be given or lost as a result of so soliciting or hiring;
(ev) Attached as Section 4.13(e) all Contracts of the Seller’s Disclosure Schedules is Company or any of its Subsidiaries granting the other party to such Contract or a description of any “third party "most favored nation” provision " or similar status;
(vi) all Contracts to which the Company or any of its Subsidiaries is party granting any license to, or franchise in respect of, any material right, property or other asset;
(vii) all joint venture, limited liability company, partnership or other similar Contracts (including all amendments thereto) in which the Company or any of its Subsidiaries holds an interest;
(viii) all confidentiality, standstill or similar Contracts to which the Company or any of its Subsidiaries is a party that impose restrictions on the activities of the Company or any of its Subsidiaries or that, following the Effective Time, would impose restrictions on the activities of Parent or any of its Subsidiaries, including the Surviving Corporation;
(ix) all Contracts by the Company or any of its Subsidiaries that restrict the payment of dividends or the repurchase of securities; and
(x) all Contracts by the Company or any of its Subsidiaries that relate to the making of any loan to or investment in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.person; and
(fxi) Attached as Section 4.13(fall Contracts providing for indemnity (including an obligation to advance funds for expenses) of by the Seller’s Disclosure Schedules is a description of Company or any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard formsSubsidiaries.
Appears in 1 contract
Contracts. (a) Section 4.13(a) of the Seller’s Disclosure Schedules contains a complete and correct list There have been made available to Parent copies of all of the following Contracts, in effect as of the date of this Agreement, contracts to which a Transferred Entity the Company or any of its Subsidiaries is a party, party or by which any of them is bound by (collectively, the "MATERIAL CONTRACTS"): (i) the agreement or subject to, or form of agreement pursuant to which the BGI Business is conducted (the “Specified Contracts”):
(i) any Contract for the placement, distribution Company or sale of shares, units its Subsidiaries holds a leasehold interest in or other ownership interests of a Fund that is reasonably expected to provide for payments to, otherwise has an economic interest in one or provide for payments from, a Transferred Entity in excess of $5,000,000 in 2009;
more hotel facilities; (ii) any administration agreement the agreements pursuant to which the Company or any other Contract for of its Subsidiaries manages any hotel or hotel business by the provision Company or any of administrative services that is reasonably expected to provide for payments to, or provide for payments from a Transferred Entity in 2009 in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or less;
Subsidiaries; (iii) the agreements granting the Company or any Contractof its Subsidiaries a franchise or license to utilize a brand name or other rights of a hotel chain or system, or granting a license or sublicense of any material trademark, trade name, copyright, patent, service mark or trade secret, or any rights therein or application therefor; (iv) contracts with any current or former officer or director of the Company or any of its Subsidiaries; (v) contracts (A) for the sale of any of the material assets of the Company or any of its Subsidiaries or the acquisition of any material amount of assets by the Company or any of its Subsidiaries, other than a Benefit and Compensation Arrangement, that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $10,000,000 in 2009;
(iv) any Contract prohibiting or materially restricting the ability of any Transferred Entity to conduct its business, to engage in any business or operate in any geographical area or to compete with any Person;
(v) any Contract for any joint venture, strategic alliance, partnership or similar arrangement involving a sharing of profits or expenses or payments based on revenues, profits, or assets under management of any Affiliate of Parent or any Fund that is reasonably expected to account for revenue to the BGI Business in 2009 in excess of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be material to the Transferred Entities, taken as a whole;
(vi) any Contract relating to any Indebtedness of a Transferred Entity in an amount in excess of $5,000,000, other than: (A) any mortgage or similar Indebtedness secured by specific property owned by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closing;
(vii) any Contract (including any so-called take-or-pay or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any Transferred Entity in respect of the BGI Business that would reasonably be expected to be material to the Transferred Entities, taken as a whole, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person (other than any Transferred Entity) in each case in excess of $10,000,000;
(viii) any Contract that provides for earn-outs or other similar contingent obligations that would reasonably be expected to result in annual payments in 2009 of $5,000,000 or more;
(ix) any Contract entered into since January 1, 2007 for the acquisition or disposition of a Person or a division of a Person, or for the acquisition or sale of any assets (including Intellectual Property), properties, equity interests or rights, other than any such sale or acquisition in the ordinary course of business or any such sale or acquisition that would not reasonably be expected to be material to the Transferred Entities, taken as a whole; and
(x) any BGI Affiliate Arrangement that will be in effect after the Closing.
(b) Seller has made available to Buyer prior to the date of this Agreement a complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effect, and is valid and binding on the Transferred Entity that is a party thereto, and, to the Knowledge of Seller, on each other party thereto. There exists no breach or default of any Significant Contract on the part of any Transferred Entity which (with or without notice or lapse of time or both) would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.
(c) As of the date hereof, no Transferred Entity has entered into and is bound by or subject to any of the following:
(i) other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practice, any Contract providing for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000;
(ii) other than Contracts contracts entered into in the ordinary course of business, or (B) for the grant to any type person of Contract any rights to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume purchase any or all fees or expenses thereunder that of its material assets; (vi) contracts which restrict in any such case would be material manner the Company or any of its Subsidiaries from competing in any line of business or with any person in any geographical area or which restrict in any material manner any other person from competing with the Company or any of its Subsidiaries in any line of business or in any geographical area; (vii) indentures, credit agreements, security agreements, mortgages, guarantees, promissory notes, letters of credit, hedging obligations, capitalized lease obligations, take or pay contracts and other contracts relating to the Transferred Entitiesborrowing of money; (viii) all joint venture, taken as a wholepartnership or similar agreements; or
and (iiiix) other than Contracts entered into any material contracts not made in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individuallybusiness.
(db) Notwithstanding anything All of the Material Contracts are in full force and effect and are the legal, valid and binding obligations of the Company and/or its Subsidiaries, enforceable against them in accordance with their respective terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors' rights and remedies generally and to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity). Neither the Company nor any of its Subsidiaries is in breach or default in any material respect under any Material Contract nor, to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) Knowledge of the Seller’s Disclosure Schedules Company, is a description of any “most favored nation” provision other party to any Material Contract in breach or default thereunder in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangementsmaterial respect.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard forms.
Appears in 1 contract
Contracts. (a) Section 4.13(a) 4.13 of the Seller’s Disclosure Schedules contains Schedule sets forth a complete and correct list listing as of the date hereof of all of the currently effective Contracts (written or oral) of the following types to which the Company is a party:
(a) Contracts or group of related Contracts which involve commitments to make capital expenditures or which provide for the purchase of assets, goods or services by the Company from any one Person in excess of Twenty-Five Thousand Dollars ($25,000) in any consecutive twelve (12) month period;
(b) Contracts or group of related Contracts which provide for the sale of goods or services by the Company in excess of Twenty-Five Thousand Dollars ($25,000) in any consecutive twelve (12) month period;
(c) partnership, joint venture or other similar type of Contract involving a sharing of profits or losses with any other Person;
(d) instruments for borrowed money (including any indentures, guarantees, loan agreements, sale and leaseback agreements, mortgages, pledges, hypothecations, deeds of trust, conditional sale or title retention agreements, security agreements or equipment financing obligations);
(e) employment, non-competition and confidentiality agreements with any employee who receives salary and bonus in excess of Twenty-Five Thousand Dollars ($25,000) per annum or any other Contract with employees providing for severance, retention, change in control or other similar payments;
(f) Contracts not otherwise disclosed herein which presently limit in any material respect the freedom of the Company to engage in any business or compete with any Person;
(g) Contracts pursuant to which the Company is a lessor or a lessee of any personal property, except for any such leases under which the aggregate annual rent or lease payments do not exceed Fifty Thousand Dollars ($50,000) and which are not terminable by the Company upon ninety (90) days or less advance notice;
(h) Contracts with any Seller, officer or director of the Company, or any Affiliate of any of the foregoing, or in the case of any individual, any immediate family member of any of the foregoing (other than those disclosed in subsection (e) above);
(i) Contracts or group of related Contracts which involve commitments to make capital expenditures by the Company from any one Person in excess of Twenty-Five Thousand Dollars ($25,000) in any consecutive twelve (12) month period and which are not terminable by the Company upon thirty (30) days or less advance notice; and
(j) Contracts under which the Company has made advances or loans to any other Person, other than employee loans in the ordinary course of business. Correct and complete copies of each Contract required to be identified in Section 4.13 of the Disclosure Schedule, including amendments thereto (or a true and accurate description of the terms of each such oral Contract) (collectively, the “Material Contracts”), have been made available to Buyer. Except as described in effect Section 4.13 of the Disclosure Schedule, as of the date of this Agreement, to which a Transferred Entity is a party, is bound by or subject to, or pursuant to which the BGI Business is conducted (the “Specified Contracts”):
: (i) any Contract for the placement, distribution or sale of shares, units or other ownership interests of a Fund that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $5,000,000 in 2009;
(ii) any administration agreement or any other Contract for the provision of administrative services that is reasonably expected to provide for payments to, or provide for payments from a Transferred Entity in 2009 in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or less;
(iii) any Contract, other than a Benefit and Compensation Arrangement, that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $10,000,000 in 2009;
(iv) any Contract prohibiting or materially restricting the ability of any Transferred Entity to conduct its business, to engage in any business or operate in any geographical area or to compete with any Person;
(v) any Contract for any joint venture, strategic alliance, partnership or similar arrangement involving a sharing of profits or expenses or payments based on revenues, profits, or assets under management of any Affiliate of Parent or any Fund that is reasonably expected to account for revenue to the BGI Business in 2009 in excess of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be material to the Transferred Entities, taken as a whole;
(vi) any Contract relating to any Indebtedness of a Transferred Entity in an amount in excess of $5,000,000, other than: (A) any mortgage or similar Indebtedness secured by specific property owned by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closing;
(vii) any Contract (including any so-called take-or-pay or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any Transferred Entity in respect all of the BGI Business that would reasonably be expected to be material to the Transferred Entities, taken as a whole, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person (other than any Transferred Entity) in each case in excess of $10,000,000;
(viii) any Contract that provides for earn-outs or other similar contingent obligations that would reasonably be expected to result in annual payments in 2009 of $5,000,000 or more;
(ix) any Contract entered into since January 1, 2007 for the acquisition or disposition of a Person or a division of a Person, or for the acquisition or sale of any assets (including Intellectual Property), properties, equity interests or rights, other than any such sale or acquisition in the ordinary course of business or any such sale or acquisition that would not reasonably be expected to be material to the Transferred Entities, taken as a whole; and
(x) any BGI Affiliate Arrangement that will be in effect after the Closing.
(b) Seller has made available to Buyer prior to the date of this Agreement a complete and correct copy of each written Specified Contract (except in certain instances such Specified Material Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is are in full force and effect, effect and is valid and binding on are enforceable against the Transferred Entity that is a party thereto, Company and, to the Knowledge Sellers’ and Company’s Knowledge, the other parties thereto, in accordance with their respective terms, subject in each case to the Enforceability Exceptions; (ii) the Company has performed in all material respects all obligations required to be performed by it pursuant to such Material Contracts; (iii) there are no unresolved, material defaults, breaches or violations of Seller, on each any of such Material Contracts by any other party thereto. There exists no ; (iv) the Sellers and Company do not have any Knowledge of any existing or threatened breach or default of cancellation or termination in connection with any Significant Contract on Material Contract; (v) no event has occurred which with the part of any Transferred Entity which (with or without notice or lapse passage of time or both) would, individually the giving of notice or both would result in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew default or to challenge the validity or enforceability breach of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.
(c) As of the date hereof, no Transferred Entity has entered into and is bound by or subject to any of the following:
(i) other than investment management and distribution such Material Contracts entered into in the ordinary course of business consistent with past practice, any Contract providing for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000;
(ii) other than Contracts entered into in the ordinary course of business, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a whole; or
(iii) other than Contracts entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individually.
(d) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard formsCompany.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (DecisionPoint Systems, Inc.)
Contracts. Except as set forth in Section 3.16 of the Disclosure Schedule, none of the Seller and its Subsidiaries is party to any contract or agreement (“Contract”) relating to the Electrical Business and of the type described below (such Contracts which are required to be listed on Section 3.16 of the Disclosure Schedules are referred to herein as the “Material Contracts”):
(a) Section 4.13(aany agreement (or group of related agreements) for the lease of personal property to or from any Person providing for lease payments in excess of $50,000 per annum;
(b) any agreement (or group of related agreements) for the purchase or sale of raw materials, commodities, supplies, products, or other personal property with a Material Supplier, or for the furnishing of goods or services to a Material Customer, in each case, other than purchase orders entered into in the Ordinary Course of Business;
(c) any agreement concerning a partnership or joint venture;
(d) any agreement (or group of related agreements) under which the Electrical Business has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, in excess of $250,000 or under which it has imposed a Lien on any of its assets, tangible or intangible, other than Permitted Encumbrances;
(e) any collective bargaining agreement;
(f) any license of material Intellectual Property or other agreement involving Intellectual Property used in the Electrical Business (including any covenants not to ▇▇▇, settlement agreements, or coexistence agreements, but excluding any licenses for commercially available off-the-shelf software or Intellectual Property used in providing the services under the Transition Services Agreement;
(g) any agreement for the employment of any Person on a full time, part time, consulting, or other basis providing annual compensation in excess of $100,000 or requiring the Electrical Business to provide material severance benefits which is or would become an obligation of the Seller’s Disclosure Schedules contains a complete and correct list of all of the following ContractsBuyer or any Acquired Company;
(h) any settlement, in effect as of conciliation or similar agreement with any Governmental Entity or pursuant to which, after the date of this Agreement, the Electrical Business will be required to which a Transferred Entity is a party, is bound by or subject to, or pursuant to which the BGI Business is conducted (the “Specified Contracts”):pay consideration in excess of $100,000;
(i) any Contract for agreement under which the placementElectrical Business has advanced or loaned any amount to any of its directors, distribution or sale officers, and employees outside the Ordinary Course of shares, units or other ownership interests of a Fund that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $5,000,000 in 2009Business;
(ii) any administration agreement or any other Contract for the provision of administrative services that is reasonably expected to provide for payments to, or provide for payments from a Transferred Entity in 2009 in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or less;
(iii) any Contract, other than a Benefit and Compensation Arrangement, that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $10,000,000 in 2009;
(ivj) any Contract prohibiting any of the Acquired Companies or materially restricting the ability of any Transferred Entity to conduct its businessElectrical Business, to engage now or in the future, from freely engaging in any business or operate competing anywhere in any geographical area or to compete with any Personthe world;
(vk) any Contract for any joint venture, strategic alliance, partnership with a Material Customer or similar arrangement involving a sharing of profits or expenses or payments based on revenues, profits, or assets under management of any Affiliate of Parent or any Fund that is reasonably expected to account for revenue to the BGI Business in 2009 in excess of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be material to the Transferred Entities, taken as a whole;
(vi) any Contract relating to any Indebtedness of a Transferred Entity in an amount in excess of $5,000,000, other than: Material Supplier (A) providing for any mortgage Person to be the exclusive or similar Indebtedness secured preferred provider of any product or service to an Acquired Company or the Electrical Business or that otherwise involves the granting by specific property owned by an Acquired Company or on behalf the Electrical Business to any Person of a Client; exclusive or preferred rights, (B) granting to any Indebtedness solely between Transferred Entities; Person a right of first refusal or right of first offer on the sale of any part of the assets or business of the Electrical Business, or (C) any Indebtedness for which no Transferred Entity will be liable following the Closing;
(vii) any Contract (including any so-called take-or-pay or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any Transferred Entity in respect containing a provision of the BGI Business that would reasonably be expected type commonly referred to be material to the Transferred Entities, taken as a whole, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person (other than any Transferred Entity) in each case in excess of $10,000,000;
(viii) any Contract that provides for earn-outs or other similar contingent obligations that would reasonably be expected to result in annual payments in 2009 of $5,000,000 or more;
(ix) any Contract entered into since January 1, 2007 for the acquisition or disposition of a Person or a division of a Person, or for the acquisition or sale of any assets (including Intellectual Property), properties, equity interests or rights, other than any such sale or acquisition in the ordinary course of business or any such sale or acquisition that would not reasonably be expected to be material to the Transferred Entities, taken as a whole; and
(x) any BGI Affiliate Arrangement that will be in effect after the Closing.
(b) Seller has made available to Buyer prior to the date of this Agreement a complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) is in full force and effect, and is valid and binding on the Transferred Entity that is a party thereto, and, to the Knowledge of Seller, on each other party thereto. There exists no breach or default of any Significant Contract on the part of any Transferred Entity which (with or without notice or lapse of time or both) would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.
(c) As of the date hereof, no Transferred Entity has entered into and is bound by or subject to any of the following:
(i) other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practice, any Contract providing for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000;
(ii) other than Contracts entered into in the ordinary course of business, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a whole; or
(iii) other than Contracts entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individually.
(d) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess for the benefit of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all a Person other Investment Advisory Arrangements.than the Electrical Business;
(fl) Attached as Section 4.13(fany power of attorney or other similar Contract or grant of agency granting material powers to any Person other than to an employee of an Acquired Company; and
(m) any other agreement (or group of the Seller’s Disclosure Schedules is related agreements), other than with a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract customer or supplier that is not a Material Customer or a Material Supplier, the performance of which involves (or would reasonably be expected to provide for payments involve) consideration to a Transferred Entity be paid after Closing by or to the Buyer or an Acquired Company in excess of $10,000,000 in 2009.
(g) 150,000 per annum. The Seller has made available to Buyer a true and complete copy of its form each written Material Contract. The Acquired Companies and the Electrical Business are not bound by any oral Material Contract. Each Material Contract is valid and binding on the Seller or a Subsidiary of counterparty security lending (borrower default) indemnity Contract the Seller and, to the Knowledge of the Seller, is valid and binding on the other parties thereto. The Seller and its forms Subsidiaries and, to the Knowledge of cash fund capital support Seller, the other parties thereto are not in material default or breach under any such Material Contract, and, to the Seller’s Knowledge, there are no pending claims affecting the Material Contracts. To the Seller’s Knowledge, in each case provided there has not occurred any event that, with the lapse of time or the giving of notice or both, would constitute a default or breach under a Material Contract by the Seller or its Subsidiaries, or to certain funds and clients the Seller’s Knowledge, any of the securities lending other parties to such Material Contract. To Seller’s Knowledge, no Acquired Company has received notice to the effect that any other party to any Material Contract intends to cancel or short-term cash businesses of terminate any such Material Contract. To the BGI BusinessSeller’s Knowledge, and none of no consent set forth on Schedule 5.2 is likely to not be obtained prior to the Contracts used by the Transferred Entities for such purposes materially deviates from such standard formsClosing.
Appears in 1 contract
Sources: Purchase Agreement (Actuant Corp)
Contracts. (ai) Except for Contracts filed as exhibits to --------- the Company Filed SEC Documents, there are no Contracts that are required to be filed as an exhibit to any Company SEC Document under the Exchange Act and the rules and regulations promulgated thereunder. Except for Contracts filed in unredacted form as exhibits to the Company Filed SEC Documents and purchase orders entered into in the ordinary course of business, Section 4.13(a3.01(h) of the Seller’s Company Disclosure Schedules contains Schedule sets forth a true and complete and correct list of all of the following Contracts, in effect as of the date of this Agreement, and the Company has made available to which a Transferred Entity is a partyParent true and correct copies, is bound by or subject to, or pursuant to which the BGI Business is conducted (the “Specified Contracts”):of:
(i) any Contract for the placement, distribution or sale of shares, units or other ownership interests of a Fund that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $5,000,000 in 2009;
(ii) any administration agreement or any other Contract for the provision of administrative services that is reasonably expected to provide for payments to, or provide for payments from a Transferred Entity in 2009 in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or less;
(iii) any Contract, other than a Benefit and Compensation Arrangement, that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $10,000,000 in 2009;
(iv) any Contract prohibiting or materially restricting the ability of any Transferred Entity to conduct its business, to engage in any business or operate in any geographical area or to compete with any Person;
(v) any Contract for any joint venture, strategic alliance, partnership or similar arrangement involving a sharing of profits or expenses or payments based on revenues, profits, or assets under management of any Affiliate of Parent or any Fund that is reasonably expected to account for revenue to the BGI Business in 2009 in excess of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be material to the Transferred Entities, taken as a whole;
(vi) any Contract relating to any Indebtedness of a Transferred Entity in an amount in excess of $5,000,000, other than: (A) any mortgage or similar Indebtedness secured by specific property owned by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closing;
(vii) any Contract (including any so-called take-or-pay or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any Transferred Entity in respect all Contracts of the BGI Business that would reasonably be expected to be material to the Transferred Entities, taken as a whole, Company or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities any of any Person (other than any Transferred Entity) in each case in excess of $10,000,000;
(viii) any Contract that provides for earn-outs or other similar contingent obligations that would reasonably be expected to result in annual payments in 2009 of $5,000,000 or more;
(ix) any Contract entered into since January 1, 2007 for the acquisition or disposition of a Person or a division of a Person, or for the acquisition or sale of any assets (including Intellectual Property), properties, equity interests or rights, other than any such sale or acquisition its subsidiaries made in the ordinary course of business having an aggregate value, or involving payments by or to the Company, of more than $200,000;
(B) all Contracts of the Company or any such sale of its subsidiaries made outside the ordinary course of business;
(C) all Contracts to which the Company or acquisition any of its subsidiaries is a party, or that would not reasonably be expected purport to be binding upon the Company, any of its subsidiaries or any of its affiliates, that contain a covenant restricting the ability of the Company or any of its subsidiaries (or which, following the consummation of the Merger, could restrict the ability of Parent or any of its subsidiaries, including the Company and its subsidiaries) to compete in any business or with any person or in any geographic area;
(D) all Contracts of the Company or any of its subsidiaries with any affiliate of the Company (other than any of its subsidiaries);
(E) all Contracts to which the Company or any of its subsidiaries is party granting any license to any material property, asset or right;
(F) all confidentiality, standstill or similar agreements to which the Transferred EntitiesCompany or any of its subsidiaries is a party;
(G) all joint venture, taken as a wholepartnership or other similar agreements (including all amendments thereto); and
(xH) except as set forth in Section 3.01(c), all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any BGI Affiliate Arrangement that will indebtedness of the Company or any of its subsidiaries is outstanding or may be in effect after incurred and all guarantees of or by the Closing.
Company or any of its subsidiaries of any debt obligations of any other person (bother than the Company or any of its subsidiaries) Seller has made available to Buyer prior to the date of this Agreement a complete and correct copy of each written Specified Contract (except in certain instances for such Specified Contracts indebtedness or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions guarantees the aggregate principal amount of all material terms of each oral Specified Contractwhich does not exceed $200,000), including all material amendments, modifications and supplements thereto the respective aggregate principal amounts outstanding as in effect on of the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 None of revenue to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess Company or any of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “Significant Contracts”) its subsidiaries is in full force and effect, and is valid and binding on the Transferred Entity that is a party thereto, and, to the Knowledge violation or breach of Seller, on each other party thereto. There exists no breach or default of any Significant Contract on the part of any Transferred Entity which (with or without notice or lapse of time or both) wouldunder, or has waived or failed to enforce any rights or benefits under, any Contract to which it is a party or any of its properties or assets is subject, and, to the knowledge of the Company or such subsidiary, no other party to any of its Contracts is in violation or breach of or default (with or without notice or lapse of time or both) under, or has waived or failed to enforce any rights or benefits under, and there has occurred no event giving to others any right of termination, amendment or cancelation of, with or without notice or lapse of time or both, any such Contract except, in each case, for violations, breaches, defaults, waivers or failures to enforce material rights or benefits that individually or in the aggregate, aggregate could not reasonably be expected to be have a material to adverse effect on the Transferred Entities, taken as a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a wholeCompany.
(c) As of the date hereof, no Transferred Entity has entered into and is bound by or subject to any of the following:
(i) other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practice, any Contract providing for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000;
(ii) other than Contracts entered into in the ordinary course of business, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a whole; or
(iii) other than Contracts entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individually.
(d) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none Each of the Contracts used by between the Transferred Entities for such purposes materially deviates from such standard formsCompany or any of its subsidiaries, on the one hand, and any affiliate of the Company (other than any of its subsidiaries), on the other hand, was entered into on an arm's length basis.
Appears in 1 contract