Contracts. Except as Previously Disclosed, neither the Company nor any Company Subsidiary is a party to any contracts or agreements: (1) relating to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $100,000, except for those issued in the ordinary course of business; (2) that constitutes a collective bargaining or other arrangement with any labor union; (3) that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K; (4) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person; (5) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries; (6) limiting the ability of the Company or any of the Company Subsidiaries to engage, in any material respect, in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person; (7) that is a settlement, conciliation or similar agreement, the performance of which will involve payment after the First Closing Date of consideration in excess of $100,000; (8) that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000); (9) that concerns the sale or acquisition of any material portion of the Company’s business; (10) that concerns a partnership or joint venture; (11) involving aggregate consideration liability in excess of $100,000 and which, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice; (12) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking; and (13) any other contract, agreement or understanding material to the Company or any of the Company Subsidiaries or their respective operations. Each Contract of a type Previously Disclosed above to this Section 2.2(t) (collectively, the “Material Contracts”), is (i) legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (ii) is in full force and effect and enforceable in accordance with its terms and (iii) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Company’s Knowledge, any other party thereto is in default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the agreement and no party thereto has repudiated any provision of such contract.
Appears in 5 contracts
Sources: Investment Agreement (DBD Cayman, Ltd.), Investment Agreement (Anchorage Advisors, LLC), Investment Agreement (Hampton Roads Bankshares Inc)
Contracts. Except as Previously Disclosed, neither the Company nor any Company Subsidiary is a party to any contracts or agreements:
(1) relating to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $100,000, except for those issued in the ordinary course of business;
(2) that constitutes a collective bargaining or other arrangement with any labor union;
(3) that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(4) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person;
(5) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(6) limiting the ability of the Company or any of the Company Subsidiaries to engage, in any material respect, in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(7) that is a settlement, conciliation or similar agreement, the performance of which will involve payment after the First Closing Date of consideration in excess of $100,000;
(8) that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000);
(9) that concerns the sale or acquisition of any material portion of the Company’s business;
(10) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability in excess of $100,000 and which, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice;
(12) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking; and
(13) any other contract, agreement or understanding material to the Company or any of the Company Subsidiaries or their respective operations. Each Contract of a type Previously Disclosed above to this Section 2.2(t) (collectively, the “Material Contracts”), is (i) legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (ii) is in full force and effect and enforceable in accordance with its terms and (iii) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Company’s Knowledge, any other party thereto is in default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the agreement and no party thereto has repudiated any provision of such contract.
Appears in 5 contracts
Sources: Investment Agreement (Hampton Roads Bankshares Inc), Investment Agreement (Hampton Roads Bankshares Inc), Investment Agreement (Hampton Roads Bankshares Inc)
Contracts. Except as The Company has Previously DisclosedDisclosed or provided (by hard copy, neither electronic data room or otherwise) to the Investor or its representatives true, correct and complete copies of each of the following to which the Company nor or any Company Subsidiary is a party to any contracts or agreements:(each, a “Material Contract”):
(1i) any contract or agreement relating to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business consistent with past practicebusiness, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $100,000500,000, except for those issued in the ordinary course of business;
(2ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(3iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(4iv) that is a any lease or agreement under which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other PersonPerson with annual rent payments in excess of $500,000;
(5v) that is a any lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(6vi) limiting any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to engage, in any material respect, engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(7vii) that is a any settlement, conciliation or similar agreement, the performance of which will involve payment after the First Closing Date of consideration in excess of $100,000500,000;
(8) viii) any contract or agreement that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000500,000);
(9ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(10x) that concerns a any alliance, cooperation, joint venture, shareholders, partnership or joint venturesimilar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(11xi) any contract or agreement involving aggregate consideration liability annual payments in excess of $100,000 and which, in each case, 500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty or without on not more than 90 days’ notice;
(12xii) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking; and;
(13xiii) any other contractcontract or agreement with respect to the employment or service of any current or former directors, agreement officers, employees or understanding material to consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of business;
(xiv) any contract or their respective operationsagreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract of a type Previously Disclosed above to this Section 2.2(t(A) (collectively, the “Material Contracts”), is (i) legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (iiB) is in full force and effect and enforceable in accordance with its terms and (iiiC) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms in all material respects following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Knowledge of the Company’s Knowledge, any other party thereto is in material violation or default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the agreement and no party thereto has repudiated any provision of such contractMaterial Contracts.
Appears in 5 contracts
Sources: Investment Agreement (Central Pacific Financial Corp), Investment Agreement (Central Pacific Financial Corp), Investment Agreement (Anchorage Capital Group, L.L.C.)
Contracts. Except as Previously Disclosed(a) Schedule 5.17(a) lists the following written Contracts (collectively, neither the “Material Contracts”) to which any member of the Company nor any Company Subsidiary Group is a party to any contracts or agreementsand which are currently in effect:
(1i) relating to indebtedness for borrowed moneyall Contracts that require annual payments or expenses by, letters of creditor annual payments or income to, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any member of the foregoing, but in any event excluding trade payables, securities transactions Company Group of $500,000 or more (other than standard purchase and brokerage agreements arising sale orders entered into in the ordinary course of business consistent with past practice);
(ii) all sales, intercompany indebtedness advertising, agency, lobbying, broker, sales promotion, market research, marketing or similar contracts and immaterial leases for telephonesagreements, copy machines, facsimile machines and other office equipment) in each case requiring the payment of any commissions by any member of the Company Group in excess of $100,000500,000 annually;
(iii) all employment Contracts, except employee leasing Contracts, and consultant and sales representatives Contracts with any current or former officer, director, employee or consultant of the Company Group or other Person, under which any member of the Company Group (A) has continuing obligations for those issued payment of annual compensation of at least $200,000 (other than oral arrangements for at-will employment), (B) has material severance or post termination obligations to such Person (other than COBRA obligations, or (C) has an obligation to make a payment upon consummation of the transactions contemplated hereby or as a result of a change of control of any member of the Company Group;
(iv) all Contracts creating a material joint venture, material strategic alliance, material limited liability company and partnership agreements;
(v) all Contracts relating to any material acquisitions or dispositions of assets in excess of $500,000;
(vi) all Contracts for material licensing agreements, including Contracts licensing Intellectual Property Rights, other than (i) “shrink wrap” licenses, and (ii) non-exclusive licenses granted in the ordinary course of business;
(2vii) that constitutes a collective bargaining or other arrangement with all Contracts relating to material secrecy, confidentiality and nondisclosure agreements materially restricting the conduct of any labor union;
(3) that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(4) that is a lease or agreement under which the Company or any member of the Company Subsidiaries is lessee of, Group or holds or operates, substantially limiting the freedom of any property owned by any other Person;
(5) that is a lease or agreement under which the Company or any member of the Company Subsidiaries is lessor of, or permits any Person Group to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(6) limiting the ability of the Company or any of the Company Subsidiaries to engage, in any material respect, compete in any line of business or to competebusiness, whether by restricting territories, customers or otherwise, with any Person or in any other material respect, with any Persongeographic area;
(7viii) that is a settlementall Contracts relating to material patents, conciliation or similar agreementtrademarks, service marks, trade names, brands, copyrights, trade secrets and other material Intellectual Property Rights of the performance of which will involve payment after the First Closing Date of consideration in excess of $100,000Company Group;
(8) that relates to Intellectual Property Rights (ix) all Contracts providing for material guarantees, indemnification arrangements and other than a license granted to hold harmless arrangements made or provided by any member of the Company Group, including all ongoing agreements for commercially available software licensed on standard terms repair, warranty, maintenance, service, indemnification or similar obligations
(x) all Contracts with or pertaining to any member of the Company Group to which any Affiliate is a total replacement cost of less than $100,000)party;
(9xi) that concerns the sale all Contracts relating to property or acquisition of assets (whether real or personal, tangible or intangible) in which any material portion member of the Company’s business;
Company Group holds a leasehold interest (10including the Leases) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability and which involve payments to the lessor thereunder in excess of $100,000 per month;
(xii) all Contracts relating to outstanding Indebtedness, including financial instruments of indenture or security instruments (typically interest-bearing) such as notes, mortgages, loans and whichlines of credit, in each caseexcept any such Contract with an aggregate outstanding principal amount not exceeding $1,000,000;
(xiii) any Contract relating to the voting or control of the equity interests of any member of the Company Group or the election of directors of any member of the Company (other than the Organizational Documents of the Company Group);
(xiv) any Contract that can be terminated, or the provisions of which are altered so that the purpose of the Contract cannot be cancelled by the Company without penalty or without more than 90 days’ notice;
(12) that concerns any material hedgeachieved, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking; and
(13) any other contract, agreement or understanding material to the Company or any as a result of the Company Subsidiaries or their respective operations. Each Contract of a type Previously Disclosed above to this Section 2.2(t) (collectively, the “Material Contracts”), is (i) legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (ii) is in full force and effect and enforceable in accordance with its terms and (iii) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor this Agreement or any of the Additional Agreements; and
(xv) any Contract for which any of the benefits, compensation or payments (or the vesting thereof) with respect to a director, officer, employee or consultant of a member of Company Subsidiaries, nor to the Company’s Knowledge, any other party thereto is in default under any Material Contract. No benefits under any Material Contract Group will be increased, and no vesting of any benefits under any Material Contract will be accelerated, increased or accelerated by the occurrence of any consummation of the transactions contemplated by hereby or the Transaction Documents, nor amount or value thereof will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by this Agreement.
(b) Except as set forth on Schedule 5.17(b), (i) each Material Contract is a valid and binding agreement, is in full force and effect, and neither any member of the Transaction DocumentsCompany Group nor, to the Company’s knowledge, any other party thereto, is in material breach or material default (whether with or without the passage of time or the giving of notice or both) under the terms of any such Material Contract, (ii) no member of the Company Group has assigned, delegated, or otherwise transferred any of its rights or obligations with respect to any Material Contracts, or granted any power of attorney with respect thereto, (iii) no Contract (A) requires any member of the Company Group to post a bond or deliver any other form of security or payment to secure its obligations thereunder or (B) imposes any non-competition covenants that may be binding on and materially restrict the Business or require any payments by or with respect to the SPAC, any of its Affiliates, or the transactions contemplated hereby. The Company has previously provided to the SPAC true, correct, complete and fully executed copies of each Material Contract.
(c) Except as would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect, none of the execution, delivery or performance by any member of the Company Subsidiaries, and Group of this Agreement or any Additional Agreements to the Knowledge which such member of the Company, each Company Group is a party or the consummation by any member of the other parties theretoCompany Group of the transactions contemplated hereby or thereby constitutes a default under or gives rise to any right of termination, have performed cancellation or acceleration of any obligation of the Company or to a loss of any material benefit to which the Company Group is entitled under any provision of any Material Contract.
(d) Each member of the Company Group is in compliance in all material respects with all material obligations required to be performed by them under each Material Contractcovenants and all financial covenants in all notes, indentures, bonds and other instruments or agreements evidencing any Indebtedness.
(e) Each of the material transactions between any member of the Company Group and any Shareholder, officer, employee or director of any member of the Company Group or any Affiliate of any such Person (if any) entered into or occurring prior to the Knowledge Closing (i) is arms-length transaction with fair market price and does not impair the interests of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modificationShareholders, or acceleration, under (ii) is transaction duly approved by the agreement and no party thereto has repudiated any provision board of directors in accordance with the Organizational Documents of such contractmember of the Company Group (if applicable).
Appears in 4 contracts
Sources: Agreement and Plan of Merger (Nukkleus Inc.), Agreement and Plan of Merger (Brilliant Acquisition Corp), Merger Agreement (Nukkleus Inc.)
Contracts. Except for Contracts filed as Previously Disclosedexhibits to the Filed SEC Documents, neither as of the date hereof there are no Contracts that are required to be filed as an exhibit to any Filed SEC Document under the Exchange Act and the rules and regulations promulgated thereunder. Except for Contracts filed in unredacted form as exhibits to the Filed SEC Documents, Section 3.01(h) of the Company nor any Company Subsidiary is Disclosure Schedule sets forth a party to any contracts or agreementstrue and complete list of:
(1i) relating all Contracts to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $100,000, except for those issued in the ordinary course of business;
(2) that constitutes a collective bargaining or other arrangement with any labor union;
(3) that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(4) that is a lease or agreement under which the Company or any of the Company Subsidiaries its subsidiaries is lessee ofa party, or holds or operatesthat purports to be binding upon the Company, any property owned by any other Person;
(5) that is a lease or agreement under which the Company of its subsidiaries or any of the Company Subsidiaries is lessor ofits affiliates, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
that contain a covenant (6a "Restrictive Covenant") limiting materially restricting the ability of the Company or any of its subsidiaries (or which, following the consummation of the Merger, could materially restrict the ability of Parent or any of its subsidiaries, including the Company Subsidiaries and its subsidiaries) to engage, compete in any business that is material respectto the Company and its subsidiaries, in taken as a whole, or Parent and its subsidiaries, taken as a whole, or with any line of business or to compete, whether by restricting territories, customers or otherwise, person or in any other material respectgeographic area, with except for any Person;
such Contract (7x) that is a settlement, conciliation would not be expected to result in the Company incurring costs or similar agreement, the performance of which will involve payment after the First Closing Date of consideration receiving revenues in excess of $100,0005,000,000 per year, (y) that may be canceled without penalty by the Company or any of its subsidiaries upon notice of 60 days or less or (z) the terms and scope (including with respect to any Restrictive Covenants) are customary in the airline industry for Contracts of that type;
(8) that relates ii) all material joint venture, partnership, business alliance (excluding information technology contracts), code sharing and frequent flyer agreements (including all material amendments to Intellectual Property Rights (other than a license granted to each of the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000foregoing agreements);
(9iii) all maintenance agreements for repair and overhaul that concerns would be expected to result in the sale or acquisition of any material portion of the Company’s business;
(10) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability Company incurring costs in excess of $100,000 10,000,000 per year (including all material amendments to each of the foregoing agreements); and
(iv) as of the date hereof, all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and whichother Contracts pursuant to which any indebtedness (which term shall include capital leases and operating leases) 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 (except for such indebtedness or guarantees of indebtedness the aggregate principal amount of which does not exceed $10,000,000), including the respective aggregate principal amounts outstanding as of the date of this Agreement. The Company has previously disclosed to Parent in writing, based upon the assumptions in such writing, the aggregate amount of indebtedness (which shall be deemed solely for purposes of this sentence to consist of capital leases, aircraft operating leases and indebtedness for borrowed money) of the Company and its subsidiaries (including all guarantees of indebtedness to third parties) as of the date of this Agreement. None of the Company or any of its subsidiaries is in violation 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, any Contract to which it is a party or by which it or any of its properties or assets is bound, and, to the knowledge of the Company or such subsidiary, no other party to any of its Contracts is in violation 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, canfor violations, defaults, waivers or failures to enforce benefits that individually or in the aggregate would not be cancelled expected to result in (taking into account the likelihood of such result occurring and the expected magnitude of such event if it were to occur) a material adverse effect. Except as identified in writing by the Company without penalty or without more than 90 days’ notice;
(12) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking; and
(13) any other contract, agreement or understanding material to Parent prior to the date of this Agreement, the Company has delivered or any made available to Parent or its representatives true and complete copies of all Contracts listed on Section 3.01(h) of the Company Subsidiaries or their respective operations. Each Contract of a type Previously Disclosed above to this Section 2.2(t) (collectively, the “Material Contracts”), is (i) legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (ii) is in full force and effect and enforceable in accordance with its terms and (iii) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Company’s Knowledge, any other party thereto is in default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the agreement and no party thereto has repudiated any provision of such contractDisclosure Schedule.
Appears in 4 contracts
Sources: Merger Agreement (Us Airways Inc), Merger Agreement (Ual Corp /De/), Merger Agreement (Ual Corp /De/)
Contracts. Except as Previously Disclosed, neither (a) Section 4.14(a) of the Company nor Disclosure Letter lists the following contracts to which any of the Company Subsidiary or the Subsidiaries is a party to any contracts or agreementsby which it is bound:
(1i) relating any contract (or group of related contracts) involving the performance of services or the purchase of goods, materials or other assets by or to the Company or any of the Subsidiaries, the performance of which will involve (A) annual payments to or from the Company and the Subsidiaries of $250,000 or more, or (B) aggregate payments (including termination penalties) to or from the Company and the Subsidiaries of $1,000,000 or more;
(ii) any contract concerning a partnership, limited liability company or joint venture;
(iii) any contract (or group of related contracts) under which it has (x) created, incurred, assumed, or guaranteed any indebtedness for borrowed money, letters of creditor any capitalized lease obligation, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $100,000500,000 or (y) imposed an Encumbrance on any of its assets, except tangible or intangible;
(iv) any contract concerning confidentiality or noncompetition or that limits or otherwise restricts the Company or any of the Subsidiaries or that would, after the Effective Time, limit or restrict Parent, the Surviving Corporation or any of the Subsidiaries or any successor thereto or any of their respective Affiliates, from engaging or competing in any line of business or in any geographic area, including any contract containing any "radius clause" applicable to markets in which the Company has operations;
(v) any contract relating to collective bargaining or employee association;
(vi) any contract for those issued the employment of any individual on a full-time, part-time, consulting, or other basis who is an officer or director of the Company or any of the Subsidiaries or any Affiliate of any of them, or that provides for annual compensation in excess of $100,000 or any severance benefits;
(vii) any contract under which the Company or any of the Subsidiaries has advanced or loaned any amount to any of its directors, officers or employees;
(viii) any contract under which the consequences of a default or termination could reasonably be expected to have a Company Material Adverse Effect;
(ix) any other contract (or group of related contracts) the performance of which involves aggregate consideration in excess of (A) $250,000 or more annually, or (B) $1,000,000 or more in the aggregate;
(x) any contract that relates to any proposed Acquisition Proposal as to which discussions have not been terminated prior to the date of this Agreement, including all commitments containing confidentiality, standstill, non-solicitation or similar provisions;
(xi) any contract to which the Company or any of the Subsidiaries has continuing indemnification obligations or potential liability;
(xii) any contract providing for the sale or exchange of, or option to sell or exchange, any Property, or for the purchase or exchange of, or option to purchase or exchange, any real estate;
(xiii) any contract for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or Equity Interests of another person for aggregate consideration in excess of $500,000, in each case other than in the ordinary course of business;
(2xiv) that constitutes a collective bargaining or other arrangement with any labor union;
(3) that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(4) that is a lease or agreement under contract pursuant to which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, manages any property owned by any other Personreal property;
(5xv) that is a lease any advertising or agreement other promotional contract providing for payment by the Company or any Subsidiary of $250,000 or more;
(xvi) any license, royalty or other contract concerning Intellectual Property (other than shrink-wrap software and databases licensed to the Company or to any of the Subsidiaries under which nonexclusive software licenses granted to end-user customers by third parties in the ordinary course of business of such third parties' businesses), such Company Disclosure Letter indicating, in the case of any such license, whether the Company or any of the Company Subsidiaries is lessor of, the licensee or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(6) limiting the ability of the Company or any of the Company Subsidiaries to engage, in any material respect, in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(7) that is a settlement, conciliation or similar agreement, the performance of which will involve payment after the First Closing Date of consideration in excess of $100,000;
(8) that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000);
(9) that concerns the sale or acquisition of any material portion of the Company’s business;
(10) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability in excess of $100,000 and which, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice;
(12) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertakinglicensor; and
(13xvii) any other contracteach amendment, agreement supplement and modification (whether written or understanding material to the Company or oral) in respect of any of the foregoing.
(b) The Company Subsidiaries or their respective operationshas made available to Parent a correct and complete copy of each written contract listed in Section 4.14(a) of the Company Disclosure Letter and a written summary setting forth the terms and conditions of each oral contract referred to in Section 4.14(a) of the Company Disclosure Letter. Each Contract With respect to each such contract (except as set forth in Section 4.14(a) of a type Previously Disclosed above to this Section 2.2(t) (collectively, the “Material Contracts”), is Company Disclosure Letter): (i) the contract is legal, valid valid, binding, enforceable, and binding on the Company and the Company Subsidiaries which are a party to such contract, (ii) is in full force and effect and enforceable in accordance with its terms and effect; (iiiii) the contract will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Company’s Knowledge, any other Effective Time; (iii) no party thereto is in default under any Material Contract. No benefits under any Material Contract will be increasedbreach or default, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse the passage of time or giving of notice would constitute a material breach or default default, or permit termination, modification, or acceleration, under the agreement contract; and (iv) no party thereto has repudiated any provision of such the contract.
Appears in 4 contracts
Sources: Merger Agreement (Everlast Worldwide Inc), Merger Agreement (Horowitz Seth), Merger Agreement (Horowitz Seth)
Contracts. (a) Except as Previously Disclosedfiled as an exhibit to a Company SEC Document prior to the date of this Agreement, neither and except for the Company nor Benefit Plans, each of the following contracts, agreements or arrangements are set forth in Section 3.18(a) of the Company Disclosure Letter:
(i) any agreement relating to indebtedness (other than agreements among direct or indirect wholly owned Company Subsidiaries) in excess of $10 million;
(ii) any joint venture, partnership, limited liability company or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any partnership, strategic alliance or joint venture;
(iii) any agreement or series of related agreements, including any option agreement, relating to the acquisition or disposition of any material business or material real property (whether by merger, sale of stock, sale of assets or otherwise) exceeding $15 million individually or $30 million in the aggregate for a series of related agreements;
(iv) any agreement (including any exclusivity agreement) that purports to limit or restrict in any material respect either the type of business in which the Company or any Company Subsidiary (or, after the Effective Time, the Surviving Corporation or its Subsidiaries) may engage or the manner or locations in which any of them may so engage in any business in which the Company is a party currently engaged including any covenant not to compete, or that could require the disposition of any contracts material assets or agreements:line of business of the Company or any Company Subsidiary;
(1v) relating to indebtedness any agreement providing for borrowed money, letters of credit, capital lease obligations, obligations secured the production by a Lien the Company or interest rate or currency hedging agreements (including guarantees in respect any Company Subsidiary of any product on an exclusive or requirements basis or the purchase by the Company or any Company Subsidiary of the foregoingany product on an exclusive or output basis, but in any event excluding trade payables, securities transactions and brokerage agreements arising each case not entered into in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $100,000, except for those issued in the ordinary course of business;
(2vi) that constitutes a collective bargaining or other arrangement with any labor union;
(3) that is a “material contract” within the meaning of (as such term is defined in Item 601(b)(10) of Regulation S-KK of the SEC);
(4vii) any agreement that is a lease involves expenditures or receipts of the Company or any Company Subsidiary in excess of $10 million per year not entered into in the ordinary course of business consistent with past practice;
(viii) any agreement under by which the Company or any Company Subsidiary licenses or otherwise obtains the right to use material Intellectual Property rights of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person;
Person (5other than licenses for readily available commercial software) that is a lease or agreement under by which the Company or any Company Subsidiary is restricted in its right to use or register, or licenses or otherwise permits any other Person to use, enforce, or register any material Company Owned Intellectual Property; or
(ix) any agreement the termination or breach of which would reasonably be expected to result in a Material Adverse Effect on the Company.
(b) The agreements, arrangements and plans that are required to be set forth in Section 3.18(a) of the Company Subsidiaries is lessor ofDisclosure Letter, or permits any Person that would be required to hold or operate, any property owned or controlled by be set forth but for the filing thereof as exhibits to the Company SEC Documents, are referred to herein as the “Company Contracts.” Except with respect to matters that, individually or any in the aggregate, have not resulted in and would not reasonably be expected to result in a material adverse effect on the business or operations of the Company and its Subsidiaries;
(6) limiting the ability , each Company Contract is a valid and binding agreement of the Company or any of a Company Subsidiary, as the Company Subsidiaries to engagecase may be, in any material respect, in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(7) that is a settlement, conciliation or similar agreement, the performance of which will involve payment after the First Closing Date of consideration in excess of $100,000;
(8) that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000);
(9) that concerns the sale or acquisition of any material portion of the Company’s business;
(10) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability in excess of $100,000 and which, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice;
(12) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking; and
(13) any other contract, agreement or understanding material to the Company or any of the Company Subsidiaries or their respective operations. Each Contract of a type Previously Disclosed above to this Section 2.2(t) (collectively, the “Material Contracts”), is (i) legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (ii) is in full force and effect and enforceable in accordance with its terms and (iii) will continue to be legal, valid, binding, enforceableeffect, and in full force and effect on identical terms following the consummation none of the transactions contemplated by Company, any Company Subsidiary or, to the Transaction Documents. Neither the Company nor any knowledge of the Company Subsidiaries, nor to the Company’s Knowledge, any other party thereto is in default or breach in any material respect under the terms of any such Company Contract; and since January 1, 2009, neither the Company nor any Company Subsidiary, as the case may be, has waived any material right or relinquished any material benefit under any Material such Company Contract. No benefits under any Material Contract will be increased, ; and no vesting event has occurred, which, after the giving of any benefits under any Material Contract will be acceleratednotice, with lapse of time, or otherwise, would constitute a material default by the occurrence of Company or any of the transactions contemplated by the Transaction DocumentsCompany Subsidiary or, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge knowledge of the Company, any other party under such Company Contract. True, correct and complete copies of each of the other parties thereto, such Company Contract (including all modifications and amendments thereto and waivers thereunder) have performed in all material respects all material obligations required been made available to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the agreement and no party thereto has repudiated any provision of such contractParent.
Appears in 4 contracts
Sources: Merger Agreement (Terra Industries Inc), Merger Agreement (CF Industries Holdings, Inc.), Agreement and Plan of Merger (CF Industries Holdings, Inc.)
Contracts. Except as Previously Disclosed, neither Section 3.19 of the Company nor any Company Subsidiary Seller Disclosure Schedule lists the following contracts and other agreements to which Seller is a party to any contracts or agreements:
is bound in connection with the Business on the date hereof and identifies each such contract (1) relating to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipmentif any) in excess which (i) an officer, director, member, manager or employee of $100,000, except for those issued in the ordinary course Seller or (ii) an Affiliate of business;
(2) that constitutes a collective bargaining or other arrangement with any labor union;
(3) that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(4) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessee of, Seller has or holds (directly or operates, any property owned by any other Person;
indirectly) a material interest (and Seller will update the Schedule as necessary at least five (5) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person days prior to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;Closing):
(6i) limiting any agreement (or group of related agreements), for the ability lease of the Company personal property to or any of the Company Subsidiaries to engage, in any material respect, in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with from any Person;
(7ii) that is a settlementany agreement (or group of related agreements) requiring capital expenditures or for the purchase or sale of raw materials, conciliation commodities, supplies, products or similar agreementother personal property, or for the furnishing or receipt of services (including advertising and marketing services), the performance of which will extend over a period of more than 30 days, result in a loss to Seller, or involve payment after the First Closing Date of consideration in excess of $100,000;
(8) that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000);
(9iii) that concerns the sale or acquisition of any material portion of the Company’s business;
(10) that concerns agreement concerning a partnership or joint venture;
(11iv) involving aggregate consideration liability any agreement (or group of related agreements) under which Seller has created, incurred, assumed or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, in excess of $100,000 and which, in each case, cannot be cancelled by 500,000 or under which it has granted a Lien with respect to any of the Company without penalty or without more than 90 days’ noticeAcquired Assets;
(12v) that concerns any material hedgeagreement concerning confidentiality or noncompetition;
(vi) any collective bargaining agreement;
(vii) any agreement for the employment of any Key Business Employee providing annual salary (excluding bonus) in excess of $50,000 or providing severance benefits;
(viii) any agreement under which Seller has advanced or loaned any amount to any of the Business Employees or Key Business Employees outside the Ordinary Course of Business;
(ix) any agreement under which the consequences of a default or termination could have a materially adverse effect on the financial condition, collaroperations, option, forward purchasing, swap, derivative results of operations or similar agreement, understanding or undertakingfuture prospects of the Business;
(x) letters of intent with respect to the construction and/or establishment of contemplated Restaurants; and
(13xi) any other contract, agreement (or understanding material group of related agreements) the performance of which involves annual consideration in excess of $250,000. Seller has delivered to the Company or any Purchaser a correct and complete copy of each written agreement listed in Section 3.19 of the Company Subsidiaries or their respective operationsSeller Disclosure Schedule and a written summary setting forth the terms and conditions of each oral agreement referred to in Section 3.19 of the Seller Disclosure Schedule. Each Contract With respect to each such agreement that is listed in Section 3.19 of a type Previously Disclosed above to this the Seller Disclosure Schedule, except as described in Section 2.2(t3.19 of the Seller Disclosure Schedule: (A) (collectively, the “Material Contracts”), agreement is (i) legal, valid valid, binding, enforceable and binding on the Company and the Company Subsidiaries which are a party to such contract, (ii) is in full force and effect and enforceable in accordance with its terms and was entered into on an arms length basis; (iiiB) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Company’s Knowledge, any other party thereto is in default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the CompanySeller, each of the other parties thereto, have performed no party is in all material respects all material obligations required to be performed by them under each Material Contractbreach or default, and to the Knowledge of the Company, no event has occurred that which with notice or lapse of time would constitute a material breach or default default, or permit termination, modification, modification or acceleration, under the agreement agreement; and (C) to the Knowledge of Seller, no party thereto has repudiated any provision of such contractthe agreement.
Appears in 3 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Ruths Chris Steak House, Inc.), Asset Purchase Agreement (Ruths Hospitality Group, Inc.)
Contracts. Except as Previously Disclosed(a) Section 2.16(a) of the Disclosure Schedule (with paragraph references corresponding to those set forth below) contains a true and complete list of each of the following Contracts or other arrangements (true and complete copies or, neither 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 Company nor any Company Subsidiary execution of this Agreement) to which the Company, Galaxy Mall or IMI is a party to or by which any contracts or agreementsof their Assets and Properties are bound:
(1i) (A) all Contracts (excluding Plans and Benefit Programs or Agreements) providing for a commitment of employment or consultation services for a specified or unspecified term to, or otherwise relating to indebtedness for borrowed moneyemployment or the termination of employment of, letters any Employee, the name, position and rate of creditcompensation of each Employee party to such a Contract and the expiration date of each such Contract exceeding $50,000; and (B) any written or unwritten representations, capital lease obligationscommitments, obligations secured by a Lien promises, communications or interest rate courses of conduct (excluding Plans and Benefit Programs or currency hedging agreements Agreements and any such Contracts referred to in clause (including guarantees A)) involving an obligation of the Company, Galaxy Mall or IMI to make payments in any year, other than with respect to salary or incentive compensation payments in the ordinary course of business, to any Employee exceeding $100,000 or any group of Employees exceeding $100,000 in the aggregate;
(ii) all Contracts with any Person containing any provision or covenant prohibiting or limiting the ability of the Company, Galaxy Mall or IMI to engage in any business activity or compete with any Person in connection with the Business or prohibiting or limiting the ability of any Person to compete with the Company, Galaxy Mall or IMI in connection with the Business;
(iii) all partnership, joint venture, shareholders' or other similar Contracts with any Person in connection with the Business;
(iv) all Contracts with distributors, dealers, manufacturer's representatives, sales agencies or franchises with whom the Company, Galaxy Mall or IMI deals in connection with the Business;
(v) all Contracts relating to the future disposition or acquisition of the foregoingany Assets and Properties, but in any event excluding trade payables, securities transactions and brokerage agreements arising other than dispositions or acquisitions of inventory in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $100,000, except for those issued in the ordinary course of business;
(2vi) that constitutes a all collective bargaining or other arrangement with similar labor Contracts covering any labor unionEmployee;
(3vii) all other Contracts (other than Plans and Benefit Programs or Agreements, the Real Property Leases and insurance policies listed in Section 2.18 of the Disclosure Schedule and those Contracts listed on Section 2.15 or 2.17 of the Disclosure Schedule) with respect to the Business that is a “(A) involve the payment or potential payment, pursuant to the terms of any such Contract, by or to Galaxy Mall or IMI 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 contract” within cost or penalty to the meaning of Item 601(b)(10) of Regulation S-K;Company, Galaxy Mall or IMI; and
(4viii) that is a lease or agreement under which the Company or without limiting any of the Company Subsidiaries is lessee offoregoing, or holds or operatesall Contracts relating to any strategic alliance with another Person, any property owned by any other Person;
(5) that is a lease or agreement under which including, without limitation, Earthlink, Professional Marketing International, United Marketing Solutions, and International Television Products. Notwithstanding the foregoing, the Company represents and warrants that it or its Subsidiaries have entered into approximately 40,000 Contracts with online merchants and, with the consent of Parent, will not be required to list each such Contract on the Disclosure Schedule unless any such Contract, individually, is material to the Business or Condition of the Company. The Company Subsidiaries is lessor of, or permits any Person has hereto furnished to hold or operate, any property owned or controlled Parent representative examples of all of the types of online merchant Contracts presently used by the Company or its Subsidiaries. The Company further represents and warrants that IMI has entered into approximately 100 customer Contracts and, with the consent of Parent, will not be required to list each such Contract on the Disclosure Schedule unless any such Contract, individually, exceeds $10,000.
(b) Each Contract required to be disclosed in Section 2.16(a) of the Company Subsidiaries;
(6) limiting the ability of the Company or any of the Company Subsidiaries to engage, in any material respect, in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(7) that is a settlement, conciliation or similar agreement, the performance of which will involve payment after the First Closing Date of consideration in excess of $100,000;
(8) that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000);
(9) that concerns the sale or acquisition of any material portion of the Company’s business;
(10) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability in excess of $100,000 and which, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice;
(12) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking; and
(13) any other contract, agreement or understanding material to the Company or any of the Company Subsidiaries or their respective operations. Each Contract of a type Previously Disclosed above to this Section 2.2(t) (collectively, the “Material Contracts”), is (i) legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (ii) Disclosure Schedule is in full force and effect and constitutes a legal, valid and binding agreement, enforceable in accordance with its terms terms, of each party thereto, except as enforcement thereof may be limited by (i) Laws of general application relating to bankruptcy, insolvency moratorium, reorganization or other similar Laws, both state and federal, affecting the enforcement of creditors' rights or remedies in general, and (iiiii) will continue to be legalrules of Law governing specific performance, valid, binding, enforceable, injunctive relief and other equitable remedies; and except as disclosed in full force and effect on identical terms following the consummation Section 2.16(b) of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company SubsidiariesDisclosure Schedule, nor to neither the Company’s Knowledge, any other party thereto is in default under any Material Contract. No benefits under any Material Contract will be increasedGalaxy Mall nor IMI nor, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each Galaxy Mall or IMI, any other party to such Contract is, or has received notice that it is, in violation or breach of the other parties thereto, have performed in all material respects all material obligations required to be performed by them or default under each Material Contract, and to the Knowledge of the Company, no event has occurred that any such Contract (or with notice or lapse of time or both, would constitute a material be in violation or breach of or default under any such Contract) in any material respect.
(c) Except as disclosed in Section 2.16(c) of the Disclosure Schedule, (i) the execution, delivery and performance by the Company of this Agreement, and the consummation of the transactions contemplated hereby, will not (A) result in or permit give to any Person any right of termination, modificationcancellation, acceleration or modification in or with respect to, (B) result in or give to any Person any additional rights or entitlement to increased, additional, accelerated or guaranteed payments under, or acceleration(C) result in the creation or imposition of any Lien upon the Company, under Galaxy Mall or IMI or any of their Assets and Properties under, any Contract, and (ii) Company, Galaxy Mall, and IMI are not parties to or bound by any Contract that has been or could reasonably be expected to be, individually or in the agreement and no party thereto has repudiated aggregate with any provision other Contracts, materially adverse to the Business or Condition of such contractthe Company, Galaxy Mall, or IMI.
Appears in 3 contracts
Sources: Merger Agreement (Netgateway Inc), Merger Agreement (Galaxy Enterprises Inc /Nv/), Merger Agreement (Netgateway Inc)
Contracts. Except as The Company has Previously DisclosedDisclosed or provided (by hard copy, neither electronic data room or otherwise) to the Investor or its representatives true, correct and complete copies of each of the following to which the Company nor or any Company Subsidiary is a party to any contracts or agreements:(each, a “Material Contract”):
(1i) any contract or agreement relating to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business consistent with past practicebusiness, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $100,000250,000, except for those issued in the ordinary course of business;
(2ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(3iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(4iv) that is a any lease or agreement under which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other PersonPerson with annual rent payments in excess of $250,000;
(5v) that is a any lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(6vi) limiting any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to engage, in any material respect, engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(7vii) that is a any settlement, conciliation or similar agreement, the performance of which will involve payment after the First Closing Date of consideration in excess of $100,000250,000;
(8) viii) any contract or agreement that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000250,000);
(9ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(10x) that concerns a any alliance, cooperation, joint venture, shareholders, partnership or joint venturesimilar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(11xi) any contract or agreement involving aggregate consideration liability annual payments in excess of $100,000 and which, in each case, 250,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty or without more than 90 days’ notice;
(12xii) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking; and;
(13xiii) any other contractcontract or agreement with respect to the employment or service of any current or former directors, agreement officers, employees or understanding material to consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of business;
(xiv) any contract or their respective operationsagreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract of a type Previously Disclosed above to this Section 2.2(t(A) (collectively, the “Material Contracts”), is (i) legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (iiB) is in full force and effect and enforceable in accordance with its terms and (iiiC) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms in all material respects following the consummation of the transactions contemplated by the Transaction Documentsthis Agreement, except in the cases of (B) and (C) as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights in general. Neither the Company nor any of the Company Subsidiaries, nor to the Knowledge of the Company’s Knowledge, any other party thereto is in material violation or default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documentsthis Agreement, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documentsthis Agreement. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the agreement and no party thereto has repudiated any provision of such contractMaterial Contracts.
Appears in 3 contracts
Sources: Subscription Agreement, Subscription Agreement (FNB United Corp.), Subscription Agreement (FNB United Corp.)
Contracts. Except (a) For purposes of this Agreement, each of the following shall be deemed to constitute a “Material Contract”:
(i) any Company Contract that is required by the rules and regulations of the SEC to be filed as Previously Disclosedan exhibit to the Company SEC Documents;
(ii) any Company Contract: (A) relating to the employment of or service relationship with any Person that requires payments of compensation in excess of $150,000 on an annual basis to any Person; (B) the terms of which obligate or may in the future obligate the Company to make any severance, neither termination or similar payment to any Company Employee; (C) pursuant to which the Company is or would reasonably be likely to become obligated to make any bonus payment in excess of $50,000 to any current or former Company Employee or director; or (D) the terms of which obligate the Company to grant any options, restricted stock or other equity or equity-like awards;
(iii) any IP Contract or Contract set forth on Part 3.11(i) of the Disclosure Schedule;
(iv) any Company Contract (other than purchase orders) which generated more than $250,000 in revenues for the Company or any of its Subsidiaries in the fiscal year ending December 31, 2011;
(v) any Company Contract that by its terms involves the payment or delivery of cash or other consideration by the Company or any of its Subsidiaries in an amount or having a value in excess of $500,000 in any individual fiscal year beginning with the fiscal year ending December 31, 2011, which is not terminable without material penalty by the Company on 30 days’ (or less) notice;
(vi) any Company Contract (other than purchase orders) with a Significant Customer, Significant Supplier or Contract Manufacturer;
(vii) any Company Contract which provides for indemnification of any officer, director or employee;
(viii) any Company Contract restricting in any material respect the ability of the Company or any of its Subsidiaries to compete in any geographic area or line of business, or pursuant to which Company or any of its Subsidiaries has granted any exclusive rights to any Person;
(ix) any Company Contract limiting or otherwise restricting in any manner the ability of the Company to use any Company Owned IP;
(x) any Company Contract containing a “most favored nation” provision or a similar provision requiring the Company or any of its Subsidiaries to offer to a Person any terms or conditions that are at least as favorable as those offered to one or more other Persons;
(xi) any Company Contract granting any Person the right of first refusal or first negotiation with regard to the current or future business or products of the Company or any of its Subsidiaries;
(xii) [Reserved];
(xiii) any joint venture, joint development or joint marketing agreements to which the Company or any of its Subsidiaries is a party;
(xiv) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit, in each case in excess of $250,000, other than: (A) accounts receivables and payables; (B) credit card obligations; and (C) loans to direct or indirect wholly owned Subsidiaries, in each case in the ordinary course of business consistent with past practice;
(xv) any Company Contract relating to the acquisition or disposition, directly or indirectly, by the Company or any of its Subsidiaries after the Agreement Date of assets with a fair market value in excess of $250,000, other than purchase orders for raw materials or inventory in the ordinary course of business consistent with past practice;
(xvi) any settlement Contract other than: (A) releases immaterial in nature and amount entered into with former employees or independent contractors of the Company or any of its Subsidiaries in the ordinary course of business that do not provide for any ongoing Company obligations; or (B) settlement agreements with other than former employees, officers and directors or independent contractors for cash only (which has been paid) and does not exceed $250,000 as to such settlement;
(xvii) any Company Government Contract or any Company Government Subcontract;
(xviii) any Collective Bargaining Agreement; and
(xix) any other Company Contract, if a breach of such Contract or the termination of such Contract would be reasonably likely to have a Company Material Adverse Effect.
(b) Part 3.12(b)-1 of the Disclosure Schedule lists all Material Contracts as of the Agreement Date, and identifies each subsection of Section 3.12(a) that describes such Material Contract. The Company has made available to Parent accurate and complete copies of each Material Contract (including all amendments thereto).
(c) Each Material Contract is valid and binding on the Company and each of the Subsidiaries that is a party thereto, as applicable, is in full force and effect, and is enforceable in accordance with its terms, subject to: (i) Laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of Law governing specific performance, injunctive relief and other equitable remedies. All Company Contracts involving the payment of at least $100,000 to or by the Company that contain an express written agreement of indemnification, warranty or guaranty, or support obligations by the Company have been made available to Parent.
(d) Neither the Company nor any of its Subsidiaries has violated or breached, or committed any default under, any Material Contract. To the Company’s Knowledge, no other Person has materially violated or breached, or committed any material default under, any Material Contract, which violation, breach or default remains uncured.
(e) No event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) could reasonably be expected to: (i) result in a violation or breach of any provision of any Material Contract by the Company or any of its Subsidiaries or, to the Knowledge of the Company, by any other party thereto; (ii) give any Person the right to declare a default or exercise any remedy under any Material Contract; (iii) give any Person the right to receive or require a rebate, chargeback, penalty or change in delivery schedule under any Material Contract; (iv) give any Person the right to accelerate the maturity or performance of any Material Contract; or (v) give any Person the right to cancel, terminate or modify any Material Contract.
(f) To the Knowledge of the Company, no Material Contract is currently the subject of bid or award protest proceedings.
(g) Neither any Governmental Body nor any prime contractor, subcontractor or other Person has notified the Company or any Subsidiary is a party of the Company, in writing, that the Company or any Subsidiary of the Company has breached or violated any Law or material certification, representation, clause, provision or requirement pertaining to any contracts or agreements:Material Contract.
(1h) relating to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of Neither the Company nor any Subsidiary of the foregoingCompany has received any notice of termination for convenience, but in notice of termination for default, cure notice or show cause notice pertaining to any event excluding trade payables, securities transactions and brokerage agreements arising Material Contract.
(i) Other than in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $100,000, except for those issued in the ordinary course of business;
(2) that constitutes a collective bargaining or other arrangement with any labor union;
(3) that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(4) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person;
(5) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(6) limiting the ability of the Company or any of the Company Subsidiaries to engage, in any material respect, in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(7) that is a settlement, conciliation or similar agreement, the performance of which will involve payment after the First Closing Date of consideration in excess of $100,000;
(8) that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000);
(9) that concerns the sale or acquisition of any material portion of the Company’s business;
(10) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability in excess of $100,000 and which, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice;
(12) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking; and
(13) any other contract, agreement or understanding material to the Company or any of the Company Subsidiaries or their respective operations. Each Contract of a type Previously Disclosed above to this Section 2.2(t) (collectively, the “Material Contracts”), is (i) legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (ii) is in full force and effect and enforceable in accordance with its terms and (iii) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Company’s Knowledge, any other party thereto is in default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event cost incurred by the Company or any Subsidiary of the Company pertaining to any Material Contract is the subject of any audit or investigation by or has occurred that with notice been disallowed by any Governmental Body.
(j) To the Knowledge of the Company, since January 1, 2010, neither the Company nor any of its Subsidiaries has been debarred or lapse of time would constitute a material breach suspended for ninety (90) days or default or permit termination, modificationmore in any consecutive twelve (12) month period, or accelerationproposed for debarment or suspension, under or received notice of actual or proposed debarment or suspension, from participation in the agreement and no party thereto has repudiated award of Contracts with any provision of such contractGovernmental Body.
Appears in 3 contracts
Sources: Merger Agreement (Abc-Mart, Inc.), Merger Agreement (Abc-Mart, Inc.), Merger Agreement (Lacrosse Footwear Inc)
Contracts. Except SCHEDULE 5.10 sets forth a list of all Contracts that are (x) material to the business or operations of Orion, taken as Previously Discloseda whole, neither to either Orion Party; and (y) to which any of the Company nor Orion Parties are a party, by which either are bound or to which any Company Subsidiary is a party of their respective assets or properties are subject, as applicable, including but not limited to any contracts or agreementsthe following types of Contracts:
(1a) relating any collective bargaining agreement;
(b) any Contract with any employee, consultant, advisor, officer or director of Orion or Merger Sub;
(c) any Contract with a sales representative, manufacturer’s representative, distributor, dealer, broker, sales agency, advertising agency or other Person engaged in sales, distributing or promotional activities, or any Contract to indebtedness for borrowed money, letters act as one of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect the foregoing on behalf of any Person;
(d) any Contract which involves the payment or receipt of cash or other property, an unperformed commitment or goods or services, in each case having a value in excess of $10,000;
(e) any Contract pursuant to which either Orion Party (i) has made or will make any loans or advances; (ii) has or will have incurred debts, or become a guarantor or surety, or pledged its credit on; or (iii) has or will have otherwise become responsible with respect to any undertaking of another (except for the foregoing, but negotiation or collection of negotiable instruments in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $100,000, except for those issued in the ordinary course of business);
(2f) that constitutes any indenture, credit agreement, loan agreement, note, mortgage, security agreement, lease of real property or personal property or agreement for financing;
(g) any Contract involving a collective bargaining partnership, joint venture or other cooperative undertaking;
(h) any Contract involving any restrictions with respect to (i) any geographical area of operations; or (ii) scope or type of business of Orion or Merger Sub;
(i) any power of attorney or agency agreement or arrangement with any labor union;
(3) that Person pursuant to which such Person is a “material contract” within granted the meaning authority to act for or on behalf of Item 601(b)(10) of Regulation S-K;
(4) that is a lease Orion or agreement under which the Company or any of the Company Subsidiaries is lessee ofMerger Sub, or holds pursuant to which Orion or operates, any property owned by any other Person;
(5) that is a lease Merger Sub are granted the authority to act for or agreement under which the Company or any on behalf of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(6) limiting the ability of the Company or any of the Company Subsidiaries to engage, in any material respect, in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(7j) that is a settlementany Contract relating to any corporate acquisition or disposition of Orion or Merger Sub, conciliation or similar agreement, the performance of which will involve payment after the First Closing Date of consideration in excess of $100,000;
(8) that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000);
(9) that concerns the sale any acquisition or acquisition disposition of any material portion subsidiary, division, line of the Company’s business;
(10) that concerns a partnership business or joint venture;
(11) involving aggregate consideration liability in excess of $100,000 and whichreal property, in each case, cannot be cancelled by case during the Company without penalty or without more than 90 days’ notice;
(12) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertakingfive years prior to the date of this Agreement; and
(13k) any other contract, agreement or understanding Contract not specified above that is otherwise material to the Company business or any operations of the Company Subsidiaries or their respective operationsOrion, taken as a whole, to either Orion Party. Each Contract of a type Previously Disclosed above to this Section 2.2(t) (collectively, the “Material Contracts”), is (i) legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (ii) is in full force and effect and enforceable in accordance with its terms and (iii) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Company’s Knowledge, any other party thereto is in default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to To the Knowledge of the CompanyOrion Parties, Orion has made available to Target true and complete copies of each document listed on SCHEDULE 5.10, and a written description of each oral arrangement so listed is contained on SCHEDULE 5.10. The cancellation of any Contracts listed on SCHEDULE 5.10 at any time by the other party or parties thereto, thereto would not have performed in all material respects all material obligations required to be performed by them under each an Orion Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the agreement and no party thereto has repudiated any provision of such contractAdverse Effect.
Appears in 3 contracts
Sources: Merger Agreement (Selena Pharmeceuticals Inc), Merger Agreement (Orion Acquisition Corp Ii), Merger Agreement (Orion Acquisition Corp Ii)
Contracts. Except as Previously Disclosed(a) Schedule 3.8(a) contains a true and complete list of all the following contracts currently in force or terminated but pursuant to which any of the Insurance Companies continues to have liabilities or receive benefits, neither in each case excluding Insurance Contracts, to which either of the Company nor any Company Subsidiary Insurance Companies is a party or by which any Assets of the Insurance Companies are bound, as such contracts may have been amended to the date hereof (collectively, the “Material Contracts”):
(i) all contracts with any present or former officer, director or trustee of the Insurance Companies (including, but not limited to, employment contracts and contracts evidencing loans or advances to any contracts such Person or agreements:any Affiliate of such Person);
(1ii) all contracts with any Person including, but not limited to, any Governmental Entity, containing any provision or covenant (A) limiting the ability of the Insurance Companies to engage in any line of business, to sell any products or services, to compete with any Person in any geographical area, to do business with any Person or in any location or to employ any Person or (B) limiting the ability of any Person to compete with, or obtain or provide products or services from or to the Insurance Companies in any line of business or in any geographical area;
(iii) (A) all contracts relating to indebtedness for borrowed money, letters the borrowing of credit, capital lease obligations, money by the Insurance Companies (other than any the Surplus Debentures and intercompany obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising created in the ordinary course of business consistent with past practicebusiness) or the direct or indirect guarantee by the Insurance Companies of any obligation of any Person for borrowed money or other financial obligation of any Person or other liability of the Insurance Companies in respect of indebtedness for borrowed money or other financial obligations of any Person, intercompany indebtedness including, but not limited to, lines of credit or similar facilities and immaterial leases for telephones, copy machines, facsimile machines and other office equipment(B) any contract involving the deferred purchase price of property in excess of $100,00010,000;
(iv) all contracts (other than Insurance Contracts) with any person containing any provisions or covenant relating to the indemnification or holding harmless by the Insurance Companies which have had or reasonably could be expected to have, except individually or in the aggregate, a Material Adverse Effect;
(v) all contracts relating to the future disposition (including, but not limited to, restrictions on transfer or rights of first refusal) of any Assets of the Insurance Companies other than in the ordinary course of business, or for those issued the grant to any person of any preferential rights to purchase or use any Assets of the Insurance Companies other than, in the case of each of the foregoing, any contracts for the sale of investment assets in the ordinary course of business;
(2vi) that constitutes a collective bargaining any partnership, joint venture, joint marketing, strategic alliance or other arrangement with any labor unionsimilar contracts;
(3vii) any form of contract that is any of the Insurance Companies has entered into with a “material contract” within Producer, provided that all contracts entered into with Producers are materially comparable to the meaning forms of Item 601(b)(10) of Regulation S-KProducer contracts set forth on Schedule 3.23;
(4viii) that is a lease any contract for the provision of any administrative services with respect to any Insurance Contract, including any such contracts with third party administrators or agreement under which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Personmanaging general agents;
(5ix) that is a lease all outstanding powers of attorney or agreement under which the Company or any similar delegations of authority of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company SubsidiariesInsurance Companies;
(6x) limiting all contracts relating to the ability acquisition by the Insurance Companies of the Company or any of the Company Subsidiaries to engage, in any material respect, in any line of operating business or to compete, whether by restricting territories, customers or otherwise, or in the capital stock of any other material respectPerson entered into on or after January 1, with any Person2000;
(7xi) that is a settlement, conciliation all contracts under which either of the Insurance Companies has made advances or similar agreement, the performance of which will involve payment after the First Closing Date of consideration in excess of $100,000;
(8) that relates loans to Intellectual Property Rights (any other Person other than a license granted to (1) the Company for commercially available software licensed on standard terms with a total replacement cost Surplus Debentures and intercompany obligations created in the ordinary course of less than $100,000);
business and (92) that concerns mortgage loans generated in the sale or acquisition ordinary course of any material portion of the Company’s business;
(10xii) that concerns a partnership all contracts providing for severance, retention, change of control or joint venture;
(11) involving aggregate consideration liability in excess of $100,000 and which, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice;
(12) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or other similar agreement, understanding or undertakingpayments; and
(13xiii) all other contracts (other than (i) contracts regarding the purchase or sale of investment assets entered into in the ordinary course of business, (ii) contracts otherwise required to be set forth on Schedule 3.8(a) with respect to Sections 3.8(i) through (xii) or Schedule 3.23 and (iii) other contracts which are expressly excluded under any other contractsubsection of this Section 3.8) that (A) involve or are reasonably likely to involve the payment pursuant to the terms of such contracts by or to the Insurance Companies of $10,000 or more within any 12 month period or $100,000 in the aggregate during the terms of such contracts and are not terminable on 30 days or less notice without the payment of any penalty by, agreement or understanding any other material adverse consequence to, the Insurance Companies, or (B) are otherwise material to the Company or any business of the Company Subsidiaries or their respective operations. Insurance Companies.
(b) Each Contract of the Material Contracts constitutes a type Previously Disclosed above to this Section 2.2(t) (collectively, the “Material Contracts”), is (i) legal, valid and binding on obligation of each Insurance Company to the Company and extent that it is party thereto, and, to the Company Subsidiaries which are Knowledge of Seller, of each other Person that is a party to such contract, (ii) is in full force and effect and enforceable in accordance with its terms and (iii) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation thereto. Each of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Company’s Knowledge, any other party thereto Insurance Companies is in default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiariesnot, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the CompanySeller, no event has occurred that other party to such Material Contract is, in material breach or default of any such Material Contract or, with or without notice or lapse of time or both, would constitute a be, in material breach or default or permit termination, modification, or acceleration, under the agreement and no party thereto has repudiated of any provision such Material Contract. None of such contractMaterial Contracts have been terminated or threatened in writing to be terminated, except for those Material Contracts that terminate in the ordinary course.
(c) True and complete copies of each of the Material Contracts, including all amendments, supplements and modifications to each Material Contract, have been provided to Buyer. In the case of any Material Contract which is not written, Seller has provided to Buyer a written description of such Material Contract.
Appears in 3 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (Vesta Insurance Group Inc), Stock Purchase Agreement (Vesta Insurance Group Inc)
Contracts. Except as Previously Disclosed, neither (a) Section 4.14 of the Company nor any Company Disclosure Schedule contains a list of the following written or oral contracts that are Acquired Contracts or to which an Acquired Subsidiary is party (the “Material Contracts”) (and each Material Contract is listed under a party heading in such Section that corresponds with the applicable clause among the following to any contracts or agreements:which such Material Contract relates):
(1i) relating contract that involves the performance of services or delivery of goods or materials by the Business that is reasonably expected to indebtedness for borrowed money, letters result in revenue after the date hereof in excess of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but $100,000 in any event excluding trade payables, securities transactions and brokerage agreements arising twelve month period (other than open purchase orders made in the ordinary course Ordinary Course of business consistent with past practiceBusiness);
(ii) contract that involves the performance of services for, intercompany indebtedness and immaterial leases or delivery of goods or materials to, the Business that is reasonably expected to result in expenditures after the date hereof in excess of $50,000 in any twelve month period (other than open sales orders made in the Ordinary Course of Business);
(iii) contract for telephonesthe employment of Person by the Business on a full-time, copy machinespart-time, facsimile machines and consulting or other office equipmentbasis, including any such contract that (A) provides annual cash or other compensation in excess of $100,000, except (B) provides for those issued in the ordinary course payment of business;
(2) that constitutes a collective bargaining any cash or other arrangement with any labor union;
(3) that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(4) that is a lease compensation or agreement under which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person;
(5) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(6) limiting the ability of the Company or any of the Company Subsidiaries to engage, in any material respect, in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(7) that is a settlement, conciliation or similar agreement, the performance of which will involve payment after the First Closing Date of consideration in excess of $100,000;
(8) that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000);
(9) that concerns the sale or acquisition of any material portion of the Company’s business;
(10) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability in excess of $100,000 and which, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice;
(12) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking; and
(13) any other contract, agreement or understanding material to the Company or any of the Company Subsidiaries or their respective operations. Each Contract of a type Previously Disclosed above to this Section 2.2(t) (collectively, the “Material Contracts”), is (i) legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (ii) is in full force and effect and enforceable in accordance with its terms and (iii) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following benefits upon the consummation of the transactions contemplated by this Agreement, or (C) provides for any severance payments;
(iv) contract that restricts the Transaction Documents. Neither the Company nor ability of Seller or any of its Affiliates to engage in any business, including the Company SubsidiariesBusiness, nor or compete with any Person with respect to the Company’s Knowledge, Business or any other party thereto business;
(v) lease of any tangible personal property to or from any other Person and used in the Business with aggregate annual rental payments exceeding $50,000 in the most recently completed calendar year;
(vi) contract to pay or receive any royalty or license fee or to license (either as licensor or licensee) any Intellectual Property (other than any non-exclusive license for the use of any commercially available off-the-shelf software which was entered into in the Ordinary Course of Business of Seller);
(vii) each mortgage agreement, deed of trust, security agreement, purchase money agreement, conditional sales contract, capital lease or other similar contract created or assumed by, or permitted to be created by written document made or accepted by, Seller or any Acquired Subsidiary or any sale-leaseback arrangement pertaining to any real property or to equipment included in the Acquired Assets;
(viii) each contract requiring Seller or any Acquired Subsidiary to reimburse any maker of a letter of credit or banker’s acceptance;
(ix) each partnership, joint venture or similar contract relating to the Business;
(x) each contract with any distributor or broker of any product or service offered by the Business; and
(xi) each contract containing any form of most-favored pricing provision in favor of any supplier or customer of the Business.
(b) Each Material Contract is a valid and binding obligation of Seller or the relevant Acquired Subsidiary, enforceable against Seller or the relevant Acquired Subsidiary in accordance with its terms except as such enforceability may be limited by (i) applicable insolvency, bankruptcy, reorganization, moratorium or other similar laws affecting creditors’ rights generally, and (ii) applicable equitable principles (whether considered in a proceeding at law or in equity). Seller or the relevant Acquired Subsidiary is not in material violation or breach of or default under any Material Contract. No benefits under any Material Contract will be increasedTo Seller’s Knowledge, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge Contract are not in material violation or breach of the Company, no or default thereunder. No event has occurred that (with notice or lapse without the passage of time or giving of notice) would constitute a material breach or default of, or permit termination, modification, acceleration or accelerationcancellation of, such Material Contract or of any material right or liability thereunder. Neither Seller nor the relevant Acquired Subsidiary has waived any material right under such Material Contract. No party to such Material Contract has terminated, modified, accelerated or canceled such Material Contract or any material right or liability thereunder or communicated in writing such party’s desire or intent to do so. Seller or the agreement relevant Acquired Subsidiary has provided to Buyer a true, correct and no party thereto has repudiated any provision complete copy of such contracteach written Material Contract or, to the extent a Material Contract is oral, an accurate description of the material terms thereof.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Qumu Corp), Asset Purchase Agreement
Contracts. Except as Previously Disclosed(a) TSG has provided SJET with the following contracts, neither the Company nor agreements, leases, licenses, arrangements, commitments, sales orders, purchase orders or any Company Subsidiary claim or right or any benefit or obligation arising there under or resulting there from and currently in effect, whether oral or written, to which TSG is a party to any contracts or agreements:("Contracts"):
(1i) relating any Contract (or group of related Contracts) for the lease of personal property to or from any person providing for lease payments in excess of $10,000 per annum;
(ii) any Contract (or group of related Contracts) for the purchase or sale of raw materials, commodities, supplies, products, or other personal property, or for the furnishing or receipt of services, the performance of which will extend over a period of more than one year, result in a loss to TSG, or involve consideration in excess of $10,000;
(iii) any Contract concerning a partnership or joint venture;
(iv) any Contract (or group of related Contracts) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, letters of credit, capital or any capitalized lease obligations, obligations secured by obligation or under which it has imposed a Lien or interest rate or currency hedging agreements (including guarantees in respect of lien on any of its assets, tangible or intangible;
(v) any Contract concerning confidentiality or noncompetition;
(vi) any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance or other plan or arrangement for the foregoingbenefit of its current or former directors, but in officers, and employees;
(vii) any event excluding trade payablesContract under which its has advanced or loaned any amount to any of its directors, securities transactions officers, and brokerage agreements arising in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $100,000, except for those issued in employees outside the ordinary course of business;
(2viii) that constitutes a collective bargaining or any Contract under which the consent of the other arrangement party thereto is required in connection with any labor unionthe assignment of such Contract in connection with the transaction contemplated hereby;
(3ix) that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(4) that is a lease or agreement any Contract under which the Company consequences of a default or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by termination could have a material adverse effect on TSG; or
(x) any other Person;
Contract (5or group of related Contracts) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(6) limiting the ability of the Company or any of the Company Subsidiaries to engage, in any material respect, in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(7) that is a settlement, conciliation or similar agreement, the performance of which will involve payment after the First Closing Date of involves consideration in excess of $100,000;10,000.
(8) that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000);
(9b) that concerns the sale or acquisition of All Contracts have been duly authorized and delivered by TSG and, any material portion of the Company’s business;
(10) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability in excess of $100,000 and whichthird party thereto, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice;
(12) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking; and
(13) any other contract, agreement or understanding material to the Company or any of the Company Subsidiaries or their respective operations. Each Contract of a type Previously Disclosed above to this Section 2.2(t) (collectively, the “Material Contracts”), is (i) legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (ii) is in full force and effect against TSG and constitute the valid and binding obligations of TSG and, the respective parties thereto enforceable in accordance with its terms and their respective terms. As to the Contracts, (iiii) will continue there are no existing breaches or defaults by TSG there under or, by the other parties to be legalsuch Contracts; (ii) no event, validact or omission has occurred or, binding, enforceable, and in full force and effect on identical terms following as a result of the consummation of the transactions contemplated by hereby, will occur which (with or without notice, lapse of time or the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Company’s Knowledge, any other party thereto is in default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the happening or occurrence of any other event) would result in a default by TSG there under or give cause for termination thereof, provided that insofar as the foregoing representation involves the actions or omissions of parties other than TSG, it shall be limited to the Best Knowledge of TSG; (iii) none of them will result in any loss TSG upon completion or performance thereof; and (iv) none of the transactions contemplated by parties to the Transaction DocumentsContracts have expressed and indication to TSG of their intention to cancel, nor will the value of renegotiate, or exercise or not exercise any of the benefits option under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material such Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the agreement and no party thereto has repudiated any provision of such contract.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Sonic Jet Performance Inc), Stock Purchase Agreement (Sonic Jet Performance Inc)
Contracts. Except as Previously Disclosed, neither (a) SCHEDULE 3.08(A) to the Company nor any Disclosure Schedule and the Company Subsidiary is SEC Documents contain a party complete and accurate list, and the Company has delivered or made available to any contracts or agreementsVeeco true and complete copies (or, in the case of oral Contracts, summaries), of:
(1i) relating to indebtedness for borrowed money, letters each Contract that is executory in whole or in part and involves performance of credit, capital lease obligations, obligations secured services or delivery of goods or materials by a Lien the Company or interest rate any other Acquired Corporation of an amount or currency hedging agreements value in excess of $250,000;
(including guarantees ii) each Contract that is executory in respect of any of the foregoing, but whole or in any event excluding trade payables, securities transactions part and brokerage agreements arising was not entered into in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and that involves expenditures or receipts of the Company or any other office equipment) Acquired Corporation in excess of $100,000250,000;
(iii) each lease, rental or occupancy agreement, license agreement, installment and conditional sale agreement, and any other Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property of any Acquired Corporation (except for those issued personal property leases and installment and conditional sales agreements having a value per item or annual payments of less than $175,000);
(iv) other than licensing agreements entered into in connection with product sales in the ordinary course of the Company's or the other Acquired Corporations' business, each material licensing agreement or any other material Contract with respect to patents, trademarks, copyrights or other Intellectual Property, including material Contracts with current or former employees, consultants or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property;
(2v) that constitutes a each collective bargaining agreement and any other Contract to or other arrangement with any labor unionunion or other employee representative of a group of employees of any Acquired Corporation;
(3vi) that is each joint venture, partnership and any other material Contract (however named) involving a “material contract” within the meaning sharing of Item 601(b)(10) of Regulation S-K;
(4) that is a lease profits, losses, costs or agreement under which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned liabilities by an Acquired Corporation with any other Person;
(5vii) each Contract containing covenants that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(6) limiting the ability of the Company or any of the Company Subsidiaries to engage, in any material respect, way purport to restrict the business activity of an Acquired Corporation or limit the freedom of an Acquired Corporation to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, compete with any Person;
(7viii) each Contract providing for material payments to or by any Person based on sales, purchases or profits, other than direct payments for goods;
(ix) each power of attorney that is a settlement, conciliation currently effective and outstanding granted by and relating to an Acquired Corporation;
(x) each Contract that contains or similar agreement, the performance of which will involve payment after the First Closing Date of consideration provides for an express undertaking by an Acquired Corporation to be responsible for consequential damages;
(xi) each Contract that is executory in whole or in part and involves capital expenditures by an Acquired Corporation in excess of $100,000250,000;
(8) that relates xii) each written warranty, guaranty and/or other similar undertaking with respect to Intellectual Property Rights (contractual performance extended by an Acquired Corporation other than a license granted to in the Company for commercially available software licensed on standard terms with a total replacement cost ordinary course of less than $100,000);
(9) that concerns the sale or acquisition of any material portion of the Company’s business;
(10) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability in excess of $100,000 and which, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice;
(12) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking; and
(13xiii) each Contract with any other contractemployee, agreement director or understanding material to the Company or any officer of the Company Subsidiaries or their respective operations. Each Contract of a type Previously Disclosed above to this Section 2.2(t) (collectively, the “Material Contracts”), is (i) legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (ii) is in full force and effect and enforceable in accordance with its terms and (iii) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Company’s Knowledge, any other party thereto is in default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the agreement and no party thereto has repudiated any provision of such contractan Acquired Corporation.
Appears in 2 contracts
Sources: Merger Agreement (Veeco Instruments Inc), Merger Agreement (Veeco Instruments Inc)
Contracts. Except as Previously Disclosed(a) The Disclosure Schedule contains a true and complete list of each of the following written or oral contracts, neither agreements or other arrangements to which the Company nor any Company Subsidiary is a party or by which any of its Assets and Properties is bound (and, to any contracts or agreements:the extent oral, accurately describes the terms of such contracts, agreements and arrangements):
(1i) relating to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien all collective bargaining or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $100,000, except for those issued in the ordinary course of businesssimilar labor agreements;
(2ii) that constitutes a collective bargaining all contracts for the employment of any officer, employee or other arrangement with any labor unionperson or entity on a full time, part time, consulting or other basis;
(3iii) that is all loan agreements, indentures, debentures, notes or letters of credit relating to the borrowing of money or to mortgaging, pledging or otherwise placing a “lien on any material contract” within asset or material group of assets of the meaning of Item 601(b)(10) of Regulation S-KCompany;
(4iv) that is a lease all guarantees of any obligation;
(v) all leases or agreement agreements under which the Company or any of the Company Subsidiaries is lessee or lessor of, or holds holds, or operates, any property property, real or personal, owned by any other Personparty;
(5vi) that is a lease all commitments, contracts, sales contracts, purchase orders, mortgage agreements or agreement under which groups of related agreements with the Company same party or any group or affiliated parties which require or may in the future require payment of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled consideration by the Company or any of the Company SubsidiariesCompany;
(6vii) limiting the ability of the Company all license agreements, distribution agreements or any of the other agreements involving any Company Subsidiaries to engage, in any material respect, in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any PersonIntellectual Property;
(7viii) that is a settlement, conciliation all subscription or similar agreement, registration rights agreements or any other agreements related to the performance equity ownership of which will involve payment after the First Closing Date of consideration in excess of $100,000Company;
(8) ix) all contracts or commitments that relates to Intellectual Property Rights (other than a license granted to in any way restrict the Company for commercially available software licensed from carrying on standard terms with a total replacement cost of less than $100,000);
(9) that concerns its business anywhere in the sale or acquisition of any material portion of the Company’s business;
(10) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability in excess of $100,000 and which, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice;
(12) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertakingworld; and
(13x) all other contracts and agreements that (A) involve the payment or potential payment, pursuant to the terms of any other such contract or agreement, by the Company and (B) cannot be terminated within thirty (30) days after giving notice of termination without resulting in any cost or penalty to the Company.
(b) Each contract, agreement or understanding material to other arrangement disclosed in the Company or any of the Company Subsidiaries or their respective operations. Each Contract of a type Previously Disclosed above to this Section 2.2(t) (collectively, the “Material Contracts”), is (i) legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (ii) Disclosure Schedule is in full force and effect and constitutes a legal, valid and binding agreement, enforceable in accordance with its terms terms, of each party thereto; and (iii) will continue to be legal, valid, binding, enforceablethe Company has performed all of its required obligations under, and is not in full force and effect on identical terms following the consummation violation or breach of or default under, any such contract, agreement or arrangement. The other parties to any such contract, agreement or arrangement are not in violation or breach of or default under any such contract, agreement or arrangement. None of the transactions contemplated by the Transaction Documents. Neither the Company nor any present or former employees, officers, directors or shareholders of the Company Subsidiaries, nor is a party to any oral or written contract or agreement prohibiting any of them from freely competing with other parties or engaging in the Company’s Knowledge, any other party thereto is in default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the agreement and no party thereto has repudiated any provision of such contract's as now operated.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Comps Com Inc), Stock Purchase Agreement (Comps Com Inc)
Contracts. Except as Previously Disclosed, neither (i) Section 3.01(i) of the Company nor Letter sets forth, as of the date of this Agreement, (with specific reference to the subsection of this Section 3.01(i) to which such Contract relates) a complete and correct list of:
(A) each Contract pursuant to which the Company or any of its Subsidiaries has agreed not to compete with any person in any area or to engage in any activity or business, or pursuant to which any benefit or right is required to be given or lost, or any penalty or detriment is incurred, as a result of so competing or engaging;
(B) each Contract to or by which the Company Subsidiary or any of its Subsidiaries is a party or bound providing for exclusivity or any similar requirement or pursuant to which the Company or any of its Subsidiaries is restricted in any way, or which after the Effective Time could restrict Parent or any of its Subsidiaries in any way, with respect to the development, manufacture, marketing or distribution of their respective products or services or otherwise with respect to the operation of their businesses, or pursuant to which any benefit or right is required to be given or lost, or any penalty or detriment is incurred, as a result of non-compliance with any such exclusive or restrictive requirements or which requires the Company or any of its Subsidiaries to refrain from granting license or franchise rights to any contracts other person;
(C) each Contract to or agreements:
by which the Company or any of its Subsidiaries is a party or bound or with respect to which the Company or any of its Subsidiaries has any obligation with (1) any affiliate of the Company or any of its Subsidiaries (excluding Contracts entered into between the Company and any of its Subsidiaries), (2) any Company Personnel, (3) any union or other labor organization or (4) any affiliate of any such person (other than, in each case, (I) offer letters or employment agreements that are terminable at will by the Company or any of its Subsidiaries both without any penalty and without any obligation of the Company or any of its Subsidiaries to pay severance or other compensation or benefits (other than accrued base salary, accrued commissions, accrued bonuses, accrued vacation pay, accrued floating holidays and legally mandated benefits), (II) invention assignment and confidentiality agreements relating to the assignment of inventions to the Company or any of its Subsidiaries not involving the payment of money (other than compensation for the service of employees and non-employee directors) and (III) Benefit Plans and Benefit Agreements other than offer letters or employment agreements);
(D) each Contract under which the Company or any of its Subsidiaries has incurred any indebtedness for borrowed money, letters having an aggregate principal amount in excess of credit$500,000;
(E) each Contract to or by which the Company or any of its Subsidiaries is a party or bound creating or granting a Lien (including Liens upon properties or assets acquired under conditional sales, capital lease leases or other title retention or security devices), other than (1) Liens for taxes not yet due and payable, that are payable without penalty or that are being contested in good faith and for which adequate reserves have been established, (2) Liens for assessments and other governmental charges or landlords’, carriers’, warehousemen’s, mechanics’, repairmen’s, workers’ or similar Liens incurred in the ordinary course of business, consistent with past practice, in each case for sums not yet due and payable or due but not delinquent or being contested in good faith by appropriate proceedings, (3) Liens incurred in the ordinary course of business, consistent with past practice, in connection with workers’ compensation, unemployment insurance and other types of social security or to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, government contracts, performance and return of money bonds and similar obligations secured by a Lien or interest rate or currency hedging agreements and (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising 4) Liens incurred in the ordinary course of business consistent with past practicepractice that are not reasonably likely to adversely interfere in a material way with the use of the properties or assets encumbered thereby (collectively, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $100,000, except for those issued in the ordinary course of business“Permitted Liens”);
(2F) that constitutes a collective bargaining each Contract to or other arrangement with any labor union;
(3) that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(4) that is a lease or agreement under by which the Company or any of its Subsidiaries is a party or bound (other than Benefit Plans and Benefit Agreements) containing any provisions (1) contemplating or relating in any way to a “change in control” or similar event with respect to the Company Subsidiaries is lessee or one or more of its Subsidiaries, including provisions requiring consent or approval of, or holds or operatesnotice to, any property owned Governmental Entity or other person in the event of a change in control of the Company or one or more of its Subsidiaries, or otherwise having the effect of providing that the consummation of the Merger or any of the other transactions contemplated by this Agreement or the execution, delivery or effectiveness of this Agreement will materially conflict with, result in a material violation or material breach of, or constitute a default (with or without notice or lapse of time or both) under, such Contract, or give rise under such Contract to any right of, or result in, a termination, right of first refusal, material amendment, revocation, cancelation or material acceleration of any obligation, or a loss of a material benefit or the creation of any material Lien upon any of the properties or assets of the Company, Parent or any of their respective Subsidiaries, or to any increased, guaranteed, accelerated or additional material rights or material entitlements of any person or (2) having the effect of providing that the consummation of the Merger or any of the other Persontransactions contemplated by this Agreement or the execution, delivery or effectiveness of this Agreement will require that a third party be provided with access to source code or that any source code be released from escrow and provided to any third party;
(5G) that is a lease each Contract to or agreement under by which the Company or any of its Subsidiaries is a party or bound providing for payments of royalties or other license fees to third parties in excess of $50,000 annually that is not terminable without penalty on 90 days’ or less notice;
(H) each Contract to or by which the Company or any of its Subsidiaries is lessor ofa party or bound granting a third party any license to Intellectual Property that is not limited to the internal use of such third party;
(I) each Contract pursuant to which the Company or any of its Subsidiaries has been granted any license to Intellectual Property, other than software licenses for generally commercially available off-the-shelf software (such as Symphony, Microsoft Word or permits Excel, WordPerfect or other word processing, spreadsheet, desktop operating system or e-mail software) readily substitutable in the operation of the business of the Company and its Subsidiaries;
(J) each Contract to or by which the Company or any Person of its Subsidiaries is a party or bound granting the other party to hold such Contract or operatea third party “most favored nation” pricing or terms that (1) applies to the Company or any of its Subsidiaries or (2) following the Effective Time, would apply to Parent or any property owned of its Subsidiaries other than the Surviving Corporation or controlled its Subsidiaries;
(K) each Contract pursuant to which the Company or any of its Subsidiaries has agreed or is required to provide any third party with access to source code, to provide for source code to be put in escrow or to grant a contingent license to source code;
(L) each Contract containing any “non-solicitation”, “no-hire” or similar provision that restricts the Company or any of its Subsidiaries in any material respect;
(M) each Contract to or by which the Company or any of its Subsidiaries is a party or bound for any joint venture (whether in partnership, limited liability company or other organizational form) or alliance or similar arrangement;
(N) each Contract to or by which the Company or any of its Subsidiaries is a party or bound for any development, marketing, resale, distribution or similar arrangement relating to any product or service;
(O) each Contract to or by which the Company or any of its Subsidiaries is a party or bound with any Governmental Entity;
(P) each material Contract to or by which the Company or any of its Subsidiaries is a party or bound entered into in the last five years in connection with the settlement or other resolution of any suit, claim, action, investigation or proceeding that has any material continuing obligations, liabilities or restrictions;
(Q) each Contract to or by which the Company or any of its Subsidiaries is a party or bound providing for future performance by the Company or any of the Company Subsidiariesits Subsidiaries in consideration of amounts previously paid;
(6R) limiting [RESERVED];
(S) each Contract (other than the ability of Company’s standard form service level agreements) to or by which the Company or any of the Company its Subsidiaries to engage, in any material respect, in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(7) that is a settlement, conciliation party or similar agreement, the performance of which will involve payment after the First Closing Date of consideration in excess of $100,000;
(8) that relates to Intellectual Property Rights bound providing for liquidated damages (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000in an immaterial amount);
(9T) that concerns the sale each material Contract to or acquisition of any material portion of the Company’s business;
(10) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability in excess of $100,000 and which, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice;
(12) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking; and
(13) any other contract, agreement or understanding material to which the Company or any of its Subsidiaries is a party or bound for professional services engagements for a fixed fee that guarantees a specific result; (U) each Contract between the Company or any of its Subsidiaries or their respective operations. Each Contract and any of a type Previously Disclosed above to this Section 2.2(t) (collectively, the “Material Contracts”), is (i) legal, valid and binding on 100 largest customers of the Company and the Company its Subsidiaries which are a party to such contract, (ii) is in full force and effect and enforceable in accordance with its terms and (iii) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Company’s Knowledge, any other party thereto is in default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated determined on the basis of revenues received by the Company or any of its Subsidiaries in the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiariesfour consecutive fiscal quarter period ended March 31, 2015 (each such customer, a “Major Customer”, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material such Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the agreement and no party thereto has repudiated any provision of such contract.“Major Customer Contract”));
Appears in 2 contracts
Sources: Merger Agreement (Merge Healthcare Inc), Merger Agreement (Merge Healthcare Inc)
Contracts. Except as Previously Disclosedotherwise disclosed in Schedules 3.13 (Real Property), neither 3.14(Intellectual Property), 3.20 (Insurance), 3.23 (Employment) and 3.27 (Customers and Suppliers) of the Company nor Disclosure Letter, Schedule 3.17 of the Disclosure Letter lists each Contract to which any Company Subsidiary Acquired Entity is a party to any contracts or agreementswhich:
(1a) relating is for the lease of personal property to indebtedness or from any Person providing for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) payments in excess of $100,000, except for those issued in the ordinary course of business£100,000 per annum;
(2b) that constitutes a collective bargaining is for the purchase or sale of raw materials, commodities, supplies, products, or other arrangement with any labor union;
(3) that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(4) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessee ofpersonal property, or holds for the furnishing or operates, any property owned by any other Person;
(5) that is a lease or agreement under which the Company or any receipt of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(6) limiting the ability of the Company or any of the Company Subsidiaries to engage, in any material respect, in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(7) that is a settlement, conciliation or similar agreementservices, the performance of which will extend over a period of more than one year, that is known to result in a loss to Acquired Entity on completion of such Acquired Entities’ obligations, or involve payment after the First Closing Date of consideration in excess of $£100,000;
(8) that relates c) concerns an investment or interest in a limited liability company, partnership, joint venture, or similar arrangement;
(d) any Contract under which it has created, incurred, assumed, or guaranteed any Liability for borrowed money or any capitalized lease in excess of £100,000, or under which it has imposed or suffered to Intellectual Property Rights exist an Encumbrance on any of its assets;
(e) any Contract concerning non-competition;
(f) any Seller or any of their Affiliates (other than the Acquired Entities) is also a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000)party;
(9g) that concerns the sale or acquisition of any material portion of the Company’s businessis a collective bargaining Contract;
(10h) advances or loans or guarantees any loan in any amount to any of its directors or officers or any Seller or, outside the Ordinary Course of Business, to its employees that concerns a partnership or joint ventureare not Sellers;
(11i) involving aggregate consideration liability any Contract for the employment of any individual on a full-time, part-time, consulting, independent contractor or other basis providing annual compensation in excess of $100,000 and which, in each case, cannot be cancelled by the Company without penalty £50,000 or without more than 90 days’ noticeproviding severance benefits;
(12j) that concerns the performance of which involves consideration payable by any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertakingAcquired Entity in excess of £100,000; and
(13k) any other contract, agreement or understanding material is outside the Ordinary Course of Business. Management Sellers have delivered to the Company or any Buyer a correct and complete copy of each written Contract (as amended to date) required to be listed in Schedule 3.17 of the Company Subsidiaries or their respective operationsDisclosure Letter and a written summary setting forth the terms and conditions of each oral Contract required to be referred to in Schedule 3.17 of the Disclosure Letter. Each With respect to each such Contract:
(A) the Contract of a type Previously Disclosed above to this Section 2.2(t) (collectively, the “Material Contracts”), is (i) legal, valid and legally binding on the Company and the Company Subsidiaries which are a party parties to such contract, (ii) is it in full force and effect and enforceable in accordance with its terms and respective terms;
(iiiB) to the Management Sellers’ Knowledge, the Contract will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor Transactions;
(C) to the Company’s Management Sellers’ Knowledge, any other no party thereto is in default under any Material Contract. No benefits under any Material Contract will be increasedmaterial breach, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that which, with notice or lapse of time time, would constitute a material breach or default or permit termination, modification, or accelerationbreach, under the agreement and Contract;
(D) no party thereto to the Contract has repudiated repudiated, or advised the Acquired Entities or the Management Sellers in writing that it intends to repudiate, any provision of such contractthe Contract; and
(E) no party to the Contract has notified the Acquired Entities or any of the Management Sellers in writing that they intend to terminate the Contract or that they do not intend to renew the Contract when it comes to the end of its current term.
Appears in 2 contracts
Sources: Investment, Shareholders’ and Stock Purchase Agreement (Mens Wearhouse Inc), Investment, Shareholders’ and Stock Purchase Agreement (Mens Wearhouse Inc)
Contracts. Except (a) Asset Disclosure Schedule 4.14(a) contains a true and complete listing of the following contracts and other agreements with respect to the ownership and operation of the Assets (each such contract or agreement being referred to herein as Previously Disclosed, neither the Company nor any Company Subsidiary is a party to any contracts or agreements:“Material Contract”):
(1i) Any natural gas gathering or transportation agreement;
(ii) Any agreement (or group of related agreements with the same Person) for the lease of personal property to or from any Person providing for lease payments in excess of $250,000 per annum;
(iii) Any agreement (or group of related agreements with the same Person) for the purchase or sale of raw materials, commodities, supplies, products or other personal property, or for the furnishing or receipt of services, the performance of which is reasonably expected to involve annual consideration in excess of $250,000;
(iv) Any agreement concerning a partnership, joint venture, investment or other arrangement (A) involving a sharing of profits or losses relating to all or any portion of the Assets, or (B) requiring EQT Gathering to invest funds in or make loans to, or purchase any securities of, another Person, venture or other business enterprise relating to the Assets;
(v) Any agreement (or group of related agreements with the same Person) with respect to the creation, incurrence, assumption, or guaranteeing of any indebtedness for borrowed money, letters of credit, capital or any capitalized lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $100,000, except for those issued in the ordinary course of businessobligation;
(2vi) Any agreement that constitutes a collective bargaining prohibits or other arrangement with any labor union;
(3) that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(4) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person;
(5) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(6) limiting otherwise materially limits the ability of the Company or any an owner of the Company Subsidiaries Assets to engage, compete in any material respect, respect in any line of business or to compete, whether by restricting territories, customers or otherwise, with any Person or in any other material respect, with geographic area during any Personperiod of time after the Closing of the Asset Contribution;
(7vii) Any agreement with EQT Gathering or any Affiliate (other than EQM and its Subsidiaries) to the extent applicable to the Assets and which individually involves annual revenues or payments in excess of $250,000;
(viii) Any collective bargaining agreement;
(ix) Any lease under which EQT Gathering is the lessor or lessee of real property that is provides for an annual base rental to or from EQT Gathering of more than $250,000;
(x) Any easement agreement, right-of-way agreement, license or permit involving an annual payment of more than $250,000;
(xi) Any agreement that governs the use or development of Intellectual Property Assets (other than off-the-shelf software license agreements);
(xii) Any agreement under which the consequences of a settlement, conciliation default or similar agreementtermination would reasonably be expected to have a Gathering System Material Adverse Effect; or
(xiii) Any other agreement (or group of related agreements with the same Person) not enumerated in this Section 4.14, the performance of which will involve payment after the First Closing Date of by any party thereto involves consideration in excess of $100,000;250,000.
(8) that relates b) EQT Gathering has made available to Intellectual Property Rights (other than EQM and/or EQM Gathering Opco a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost correct and complete copy of less than $100,000);each Material Contract.
(9) that concerns the sale or acquisition of any material portion of the Company’s business;
(10) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability in excess of $100,000 and which, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice;
(12) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking; and
(13) any other contract, agreement or understanding material to the Company or any of the Company Subsidiaries or their respective operations. Each Contract of a type Previously Disclosed above to this Section 2.2(t) (collectively, the “Material Contracts”), is (i) Each Material Contract, and each of the other Transferred Contracts, is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (ii) is in full force and effect and enforceable in accordance with its terms and (iii) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Company’s Knowledge, any other party thereto is in default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiariesagainst EQT Gathering, and to the Knowledge of the CompanyEQT Gathering, each of against the other parties thereto, have performed and is in all material respects all material obligations required to be performed by them under each Material Contractfull force and effect; (ii) EQT Gathering is not in breach or default, and to the Knowledge of the Company, no event has occurred that which with notice or lapse of time would constitute a material breach or default by EQT Gathering or permit termination, modificationmodification or acceleration under any Material Contract or under any of the other Transferred Contracts; (iii) to the Knowledge of EQT Gathering, no other party to any Transferred Contract is in breach or default, and no event has occurred which with notice or lapse of time would constitute a breach or default by such other party, or accelerationpermit termination, modification or acceleration under the agreement and no any Transferred Contract other than in accordance with its terms, nor has any other party thereto has repudiated any provision of such contractany Transferred Contract; and (iv) except as set forth on Asset Disclosure Schedule 4.14(c), following the consummation of the transactions contemplated by this Agreement, each Material Contract and each of the other Transferred Contracts will continue to be legal, valid and binding and in full force and effect on identical terms.
(d) EQT Gathering has not given to or received from any other Person any notice or other communication (whether oral or written) regarding any actual, alleged, possible or potential violation or breach of, or default under, any Material Contract that continues to be unresolved.
Appears in 2 contracts
Sources: Contribution and Sale Agreement (EQT Midstream Partners, LP), Contribution and Sale Agreement
Contracts. (a) Except for (i) those Contracts listed in Section 2.22(a) of the Company Disclosure Schedule, indicating for each Contract the applicable sub-section of this Section 2.22(a), or (ii) filed as Previously Disclosedexhibits to the Company SEC Documents (such Contracts, together with the Contracts listed in Section 2.10(c), Section 2.13(b) and Section 2.21 of the Company Disclosure Schedule, being collectively referred to herein as the “Material Contracts”) neither the Company nor any Company Subsidiary of its subsidiaries is a party to any contracts or agreementsbound by:
(1i) relating to indebtedness for borrowed moneyany distributor, letters of creditsales, capital lease obligationsagency or manufacturer’s representative, obligations secured by a Lien consulting or interest rate or currency hedging agreements (including guarantees technology sharing arrangements involving in respect the case of any such Contract or arrangement payments of more than (or that could reasonably be expected to be more than) $100,000 over any twelve (12) consecutive month period;
(ii) any continuing Contract with vendors for the purchase of materials, supplies, equipment or services involving in the case of any such Contract payments of more than $100,000 over any twelve (12) consecutive month period;
(iii) any trust indenture, mortgage, promissory note, loan agreement or other Contract for the borrowing of money or indebtedness, any currency exchange, commodities or other hedging arrangement or any leasing transaction of the foregoingtype required to be capitalized in accordance with GAAP;
(iv) any Contract for capital expenditures in excess of $100,000 in the aggregate;
(v) any Contract limiting, but or purporting to limit, in any event excluding trade payablesmaterial respect, securities transactions and brokerage agreements arising the freedom of the Company or its subsidiaries or affiliates at any time to engage in any line of business, to acquire any product or asset from any other Person outside the ordinary course of business, to sell any product or asset to, or to perform any service for, any Person outside the ordinary course of business, or to compete with any other Person, including any Contract providing for exclusivity or any similar requirement, granting to the other party “most favored nation” terms, or which could limit in any material respect the freedom of the Surviving Corporation to continue the development, manufacture, marketing or distribution of the Company’s products and services or operation of the Company’s business consistent after the Effective Time in substantially the same manner as the Company as of the Execution Date;
(vi) any confidentiality, secrecy or non-disclosure Contract that, individually, materially affects or could be reasonably anticipated to materially affect the business or operations of the Company or its subsidiaries;
(vii) any Contract pursuant to which the Company or any of its subsidiaries is a lessor of real property or any machinery, equipment, motor vehicles, office furniture, fixtures or other tangible personal property involving in the case of any such tangible personal property contact more than $100,000 over the life of the Contract;
(viii) any Contract with past practiceany Person with whom the Company does not deal at arm’s length, intercompany indebtedness and immaterial leases including any affiliate of the Company or any of its subsidiaries;
(ix) any Contract that provides for telephonesthe indemnification of any officer, copy machinesdirector, facsimile machines and other office equipment) in excess employee or agent outside of $100,000, except for those issued in the ordinary course of business;
(2x) that constitutes a collective bargaining any agreement of guarantee, support, indemnification, assumption or other arrangement with any labor union;
(3) that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(4) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessee endorsement of, or holds any similar commitment with respect to, the obligations, liabilities (whether accrued, absolute, contingent or operates, any property owned by otherwise) or indebtedness of any other Person;
(5) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(6) limiting the ability of the Company or any of the Company Subsidiaries to engage, in any material respect, in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(7) that is a settlement, conciliation or similar agreement, the performance of which will involve payment after the First Closing Date of consideration in excess of $100,000;
(8) that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000);
(9) that concerns the sale or acquisition of any material portion of the Company’s business;
(10) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability in excess of $100,000 and which, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice;
(12) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking; and
(13xi) any other contract, agreement Contract pursuant to which any bank or understanding material financial institution provides or supplies vault cash to the Company or any of its subsidiaries;
(xii) any Contract with an armored car carrier;
(xiii) any joint venture, partnership or joint research and development Contract;
(xiv) any Contract the terms of which materially change upon the occurrence of the Merger or a change of control or any Contract that impairs or reduces the Company’s rights, accelerates or increases the Company’s obligations, or gives any party thereto other than the Company Subsidiaries the right to terminate the Contract upon the occurrence of the Merger or their respective operations. Each a change of control, which change, impairment, reduction, acceleration, increase or termination would, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect; or
(xv) any other Contract that is a material Contract to the Company or its subsidiaries.
(b) Neither the Company nor its subsidiaries is a party to any Contract with a customer of a type Previously Disclosed above to this Section 2.2(t) (collectively, the “Material Contracts”), is Company that: (i) legal, valid and binding on incorporates by reference all or any portion of such customer’s request for proposal (i.e. “RFP”) or the Company and the Company Subsidiaries which are a party Company’s response to such contractRFP, or (ii) is in full force and effect and enforceable in accordance with its terms and (iii) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated terminable by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor customer upon providing thirty (30) days or less prior notice to the Company’s Knowledge, any other party thereto is in default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the agreement and no party thereto has repudiated any provision of such contract.
Appears in 2 contracts
Sources: Merger Agreement (Cash Systems Inc), Merger Agreement (Global Cash Access Holdings, Inc.)
Contracts. Except (a) For purposes of this Agreement, each of the following shall be deemed to constitute a “Material Contract”:
(i) any Company Contract that is required by the rules and regulations of the SEC to be filed as Previously Disclosed, neither an exhibit to the Company nor SEC Documents;
(ii) any employment, management, severance, retention, transaction bonus, change in control, consulting, relocation, repatriation or expatriation Contract that is not terminable at will by the Company or one of its Subsidiaries, pursuant to which the Company or one of its Subsidiaries has continuing obligations of $200,000 or more per calendar year as of the date of this Agreement (other than those pursuant to which severance is required by Law);
(iii) any Company Contract in connection with which or pursuant to which the Company and the Company Subsidiaries are committed to spend, in the aggregate, more than $1,000,000 during the current fiscal year;
(iv) any Company Contract that generated more than $1,000,000 in revenues for the Company or any Company Subsidiary is a in the fiscal year ended December 31, 2014;
(v) any Company Contract relating to the acquisition, transfer, development or sharing of any material Intellectual Property rights (except for any Company Contract pursuant to which (A) any Intellectual Property rights are licensed to the Company or any Company Subsidiary under any third-party software license generally available to the public; or (B) any Intellectual Property rights are licensed by the Company to any contracts Person on a non-exclusive basis);
(vi) any Contract (A) relating to a transaction involving the disposition or agreements:
acquisition of (1) relating to indebtedness for borrowed moneyassets whose value, letters in each case, is in excess of credit$2,500,000 or (2) any tangible assets constituting a material business or business line by the Company or any Company Subsidiary after the date of this Agreement, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising each case other than in the ordinary course of business; or (B) pursuant to which the Company or any Company Subsidiary will acquire any material ownership interest in any other Person or other business consistent with past practiceenterprise other than any Company Subsidiary;
(vii) any mortgages, intercompany indebtedness and immaterial leases for telephonesindentures, copy machinesguarantees, facsimile machines and loans or credit agreements, security agreements or other office equipment) Contracts relating to the borrowing of money or extension of credit, in each case in excess of $100,000, except for those issued 5,000,000 other than (A) accounts receivables and payables in the ordinary course of business; (B) loans to any Company Subsidiary in the ordinary course of business; and (C) extensions of credit to customers in the ordinary course of business;
(2viii) that constitutes a collective bargaining any Contract providing for the payment, increase or other arrangement vesting of any benefits or compensation in connection with any labor unionthe Merger;
(3ix) any Contract that is a “settlement agreement that imposes material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(4) that is a lease or agreement under which obligations on the Company or any Company Subsidiary after the date of the Company Subsidiaries is lessee ofthis Agreement;
(x) any Contract that involves a material joint venture, limited liability company or holds or operates, partnership with any property owned by any other third Person;
(5xi) that is a lease any Contract containing any covenant or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
other provision (6A) limiting the ability right of the Company or any of the Company Subsidiaries Subsidiary to engage, engage in any material respect, line of business or to compete with any Person in any line of business that is material to the Company; (B) prohibiting the Company or to compete, whether by restricting territories, customers or otherwise, or any Company Subsidiary from engaging in any other material respect, business with any Person;
Person or levying a fine, charge or other payment for doing so; or (7C) that is a settlement, conciliation containing “most favored nation,” “exclusivity” or similar agreementprovisions, the performance of which will involve payment after the First Closing Date of consideration in excess of $100,000;
(8) that relates to Intellectual Property Rights (each case other than a license granted any such Contracts that (1) may be cancelled without material liability to the Company for commercially available software licensed on standard terms with a total replacement cost or its Subsidiaries upon notice of less than $100,000);
ninety (990) that concerns the sale days or acquisition of any less; or (2) are not material portion of the Company’s business;
(10) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability in excess of $100,000 and which, in each case, cannot be cancelled by to the Company without penalty or without more than 90 days’ notice;
(12) that concerns any material hedgeand its Subsidiaries, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertakingtaken as a whole; and
(13xii) any other contract, agreement or understanding material to the Company or Contract which provides for indemnification of any Company Employee.
(b) Part 3.10(a) of the Company Subsidiaries or their respective operationsDisclosure Schedule lists all Material Contracts as of the Agreement Date. Each Material Contract of a type Previously Disclosed above to this Section 2.2(t) (collectively, the “Material Contracts”), is (i) legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (ii) is in full force and effect effect, and is enforceable in accordance with its terms terms, subject to (i) Laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (iiiii) will continue to be legalrules of Law governing specific performance, valid, binding, enforceable, injunctive relief and in full force and effect on identical terms following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to other equitable remedies.
(c) To the Company’s Knowledge, as of the Agreement Date, neither the Company nor any Company Subsidiary party to, nor any other party thereto is in default under to, any Material Contract. No benefits under , is in material breach of, or material default under, any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the agreement and no party thereto has repudiated any provision of such contract.
Appears in 2 contracts
Sources: Merger Agreement (Procera Networks, Inc.), Merger Agreement (Procera Networks, Inc.)
Contracts. Except as Previously Disclosed, neither (i) Section 3.01(j) of the Company nor Disclosure Schedule sets forth each contract, commitment, agreement, lease, instrument, arrangement, understanding, obligation or undertaking to which the Company or any Company Subsidiary of its subsidiaries is a party or by or to which any contracts of their properties are bound or agreementssubject that is material to the business of the Company and its subsidiaries, taken as a whole, including any such contract, commitment, agreement, lease, instrument, arrangement, understanding, obligation or undertaking:
(1A) relating pursuant to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien which the Company or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoingits subsidiaries has agreed not to compete with any person, but or to actively engage, in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $100,000, except for those issued in the ordinary course line of business;
(2B) that constitutes a collective bargaining pursuant to which the Company or other arrangement with any labor unionof its subsidiaries has entered into an exclusive distributorship arrangement;
(C) with (1) any beneficial owner of more than one percent of the outstanding Company Common Stock or more than one percent of the capital stock of any of the Company's subsidiaries, (2) any affiliate of the Company or any of its subsidiaries or (3) that is a “material contract” within any current or former director, officer, employee or consultant of the meaning Company or any of Item 601(b)(10) its subsidiaries or of Regulation S-Kany affiliate of the Company or any of its subsidiaries (other than pursuant to Benefit Agreements or Benefit Plans);
(4D) that is a lease or agreement grants exclusive license rights to material Intellectual Property of the Company;
(E) under which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, its subsidiaries has (1) incurred any property owned by any other Person;
(5) indebtedness for borrowed money that is a lease currently owing or agreement under which the Company or (2) given any guarantee in respect of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any indebtedness for repayment of the Company Subsidiaries;
(6) limiting the ability of the Company or any of the Company Subsidiaries to engageborrowed money, in any material respect, in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(7) that is a settlement, conciliation or similar agreement, the performance of which will involve payment after the First Closing Date of consideration each case having an aggregate principal amount in excess of $100,000;
(8) F) that relates to Intellectual Property Rights (other than a license granted contains any guarantees as to the Company for commercially available software licensed on standard terms with a total replacement cost Company's or any of less than $100,000)its subsidiaries future revenues or operating income;
(9G) that concerns the sale is otherwise material and that requires any consent (including any consent to assignment) of or acquisition notice to a third party, or any approval, authorization, qualification or order of any material portion of the Company’s business;
(10) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability in excess of $100,000 and whichGovernmental Entity, in each case, cannot be cancelled by the Company without penalty connection with this Agreement or without more than 90 days’ notice;
(12) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking; and
(13) any other contract, agreement or understanding material to the Company or any of the Company Subsidiaries or their respective operations. Each Contract of a type Previously Disclosed above to this Section 2.2(t) (collectively, the “Material Contracts”), is (i) legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (ii) is in full force and effect and enforceable in accordance with its terms and (iii) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated by hereby in order to avoid termination of or loss of benefits thereunder;
(H) providing for payments of royalties to third parties at a current rate in excess of $100,000 per year;
(I) not made in the Transaction Documents. Neither the Company nor ordinary course of business granting a third party any license to any material Intellectual Property rights of the Company Subsidiariesor any of its subsidiaries, nor to other than "shrink-wrap" licenses or licenses granted in connection with the Company’s Knowledgesale of products;
(J) providing confidential treatment by the Company or any of its subsidiaries of third party information, other than (1) nondisclosure agreements entered into by the Company or any of its subsidiaries in the ordinary course of business or (2) the Confidentiality Agreement;
(K) granting the other party thereto is or a third party "most favored nation" status that, following consummation of the Merger, would in default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of way apply to Parent or any of its subsidiaries (other than the transactions contemplated by Company and its subsidiaries and their products);
(L) pursuant to which the Transaction Documents, nor will the value of Company or any of its subsidiaries receives or has a continuing obligation to purchase any information technology services or information technology products that are material to the benefits under any Material Contract be calculated on the basis of any conduct of the transactions contemplated by business of the Transaction Documents. The Company and the Company Subsidiariesits subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute taken as a material breach or default or permit termination, modification, or acceleration, under the agreement and no party thereto has repudiated any provision of such contractwhole.
Appears in 2 contracts
Sources: Merger Agreement (Dupont E I De Nemours & Co), Merger Agreement (Chemfirst Inc)
Contracts. Except (a) Section 4.15(a) of the Disclosure Letter sets forth, as Previously Disclosedof the date hereof, neither a true and complete list of the following Contracts to which any Group Company nor any Company Subsidiary is a party to or by which any contracts Group Company or agreements:
any of their respective assets are bound (1other than (x) relating to indebtedness any purchase order, work order or quality agreement that, for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any each of the foregoing, but does not modify any material term or condition of, or contain any material term or condition that is not contemplated by or contained in, a Contract disclosed in Section 4.15(a) of the Disclosure Letter or (y) any Company Plan):
(i) each Contract pursuant to which the Group Companies, taken as a whole, may be entitled to receive or obligated to pay more than $500,000 in any event excluding fiscal year;
(ii) [reserved];
(iii) each Contract that is material to the Business or operation of the Group Companies, taken as a whole, containing (A) any provision limiting the freedom of any Group Company to engage in any line of business or compete with any Person (other than any employee, customer or consultant non-solicitation covenants entered into in the ordinary course of business), (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (C) any exclusivity provision or (D) any agreement to purchase a minimum quantity of goods or services;
(iv) each Contract that is material to the Business or operation of the Group Companies, taken as a whole, that grants to the counterparty any rights of first refusal, first negotiation, first offer or similar right, and each Contract that limits or purports to limit the ability of any Group Company to own, operate, sell, transfer, or otherwise dispose of its material assets;
(v) each Contract that governs the formation, creation, governance, economics or control of any joint venture, legal partnership or other similar arrangement, other than with respect to any Contract solely between or among Group Companies;
(vi) each Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $150,000 pursuant to its express terms and not cancelable without penalty;
(vii) each Contract relating to the disposition or acquisition of assets for consideration in excess of $150,000, or assets that are otherwise material to the Business or the Group Companies, taken as a whole, or of any ownership interest in any entity (whether by merger, sale of stock, sale of assets or otherwise);
(viii) each Contract pursuant to which any Group Company has indemnification obligations, or purchase price adjustment, earnout or other contingent payment obligations, in each case in connection with any merger or other business combination or any acquisition or disposition of a business or Person;
(ix) each Contract relating to any pending business acquisition by any Group Company;
(x) each Contract providing for the creation of any mortgages, loans or notes of any Group Company, each indenture, credit agreement, security agreement or other agreement or instrument providing for the creation of Indebtedness for borrowed money of any Group Company, any guaranty provided by any Group Company of any obligation for borrowed money or other guaranty provided by any Group Company and each Contract creating any material Liens, other than Contracts creating Liens of the type, nature and scope contemplated by clauses (ii), (iii), (iv), (v) or (vii) of the definition of Permitted Liens;
(xi) each Contract under which a Group Company, directly or indirectly, has made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than a Group Company), in any such case which, individually, is in excess of $150,000, other than (A) trade payables, securities transactions and brokerage agreements arising credit advanced in the ordinary course of business consistent with past practiceor (B) to directors, intercompany indebtedness managers, officers or employees for business and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $100,000, except for those issued travel expenses in the ordinary course of business;
(2xii) each Company Real Estate Lease;
(xiii) each Contract with any Governmental Authority or any university, college, research institute or other educational or academic institution that constitutes provides for research and development activities involving the creation of any material Intellectual Property rights;
(xiv) (A) each license of Company In-Licensed IP (other than any non-exclusive licenses incidental to the primary purpose of commercial agreements, non-disclosure agreements entered into in the ordinary course of business, Off-the-shelf Software and licenses to Open Source Code) and (B) each settlement, co-existence or other Contract that grants any third Person a license or right to use, or restricts any Group Company from filing, enforcing, licensing, using, registering, transferring, disposing of or otherwise exploiting, any Company Owned IP (other than any non-exclusive licenses incidental to the primary purpose of commercial agreements and non-disclosure agreements entered into in the ordinary course of business);
(xv) each Contract pursuant to which any material research or development activities are conducted by any Group Company for a third party or by a third party for any Group Company;
(xvi) each Contract that is material to the Business or operations of Group Companies, taken as a whole, under which any Group Company has continuing milestone, royalty or similar contingent payment obligations, including upon the achievement of regulatory or commercial milestones or obligation to pay any royalty, dividend or similar payment based on the revenues or profits of any Group Company, in each case, excluding indemnification and performance guarantee obligations provided for in the ordinary course of business;
(xvii) each Contract that is not terminable at will with fewer than 60 days’ prior notice (with no penalty or payment) by any Group Company and which expressly provides for payment or receipt by any Group Company after the date of this Agreement of more than $500,000 in the aggregate;
(xviii) each collective bargaining agreement or other arrangement similar Contract with any labor organization, union, group or association covering any Business Employee;
(3xix) that is a “material contract” within each Contract (A) for the meaning employment of Item 601(b)(10any Business Employee providing such Business Employee with target annual compensation or fees in excess of $350,000, (B) providing for the payment of Regulation S-Kany Cash or other compensation or benefits in connection with or upon the consummation of the Transactions to any Business Employee or otherwise payable by any Group Company, (C) restricting any Group Company’s ability to terminate the employment or services of any Business Employee at any time for any lawful reason or for no reason without penalty or (D) providing for severance or similar termination payments, retention or change in control payments, or for the acceleration of vesting or grant of any incentive equity or similar compensation to any Business Employee or otherwise payable by any Group Company;
(4xx) that is each Contract with a lease or agreement under which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other PersonMaterial Customer;
(5xxi) that is each Contract with a lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company SubsidiariesMaterial Supplier;
(6xxii) limiting the ability of the each “single-source” supply Contract, pursuant to which material goods or services are supplied to any Group Company from an exclusive source that cannot be replaced by one or any of the Company Subsidiaries to engage, more other sources on substantially similar terms and in any material respect, in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Persona reasonably timely manner;
(7xxiii) each Contract that is a settlement, conciliation or similar agreement, the performance of which will involve payment after the First Closing Date of consideration in excess of $100,000agreement with any Governmental Authority that imposes any material unpaid monetary or other material ongoing obligation upon any Group Company;
(8) that relates to Intellectual Property Rights xxiv) each Contract with (A) Seller or any Affiliate of Seller (other than any Group Company) or (B) any officer or director of Seller or its Affiliates (including the Group Companies) or any Affiliate thereof (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000Group Company);; or
(9xxv) that concerns the sale each commitment or acquisition of any material portion of the Company’s business;
(10) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability in excess of $100,000 and which, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice;
(12) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking; and
(13) any other contract, agreement or understanding material to the Company or enter into any of the Company Subsidiaries or their respective operations. Each Contract of a type Previously Disclosed above to this Section 2.2(t) (collectively, the “Material Contracts”), is (i) legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (ii) is in full force and effect and enforceable in accordance with its terms and (iii) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Company’s Knowledge, any other party thereto is in default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the agreement and no party thereto has repudiated any provision of such contractforegoing.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Standard Biotools Inc.), Stock Purchase Agreement (Illumina, Inc.)
Contracts. Except as Previously Disclosed(a) For purposes of this Agreement, neither a “Company Material Contract” is any Company Agreement, whether or not set forth in Section 3.13 of the Company nor Disclosure Schedule, which, as of the date hereof, (i) is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC); (ii) that involves aggregate revenues or expenditures in excess of $1,000,000 per year; (iii) that involves revenues or expenditures in excess of $500,000 per year and was not entered into in the ordinary course of business; (iv) that contains any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to the Company or any Company Subsidiary, or which restricts the conduct of any line of business by the Company or any Company Subsidiary, or any geographic area in which the Company or any Company Subsidiary may conduct business, in each case in any material respect; (v) that is a party Clinical Contract that involves aggregate expenditures in excess of $1,000,000 per year; (vi) with any vendor that provides billing and reimbursement services valued in excess of $500,000 during any year; (vii) is with any payor from which the Company, any Company Subsidiary or any Hospice has received payments in 2009 in excess of $500,000; (viii) is with any supplier to which the Company, any contracts Company Subsidiary or agreements:
any Hospice has made payments in 2009 in excess of $1,000,000; (1ix) which would prohibit or materially delay the consummation of the Merger or any of the other Transactions; (x) is with any current or former Key Personnel; (xi) is with any labor union or association representing any employee of the Company or any of the Company Subsidiaries and any collective bargaining agreement (of which there are none), (xii) that is a partnership or joint-venture agreement; (xiii) relating to indebtedness for borrowed moneythe borrowing of money (including any guarantee thereto) or that is a mortgage, letters of creditsecurity agreement, capital lease obligationsor similar agreements, obligations secured by in each case in excess of $500,000 or that creates a Lien on any material asset of the Company or interest rate any of the Company Subsidiaries; (xiv) for the license or currency hedging agreements sublicense (including guarantees in respect whether as a licensor or a licensee) of any Intellectual Property or other intangible asset (excluding commercial off-the-shelf or shrink wrap software than has not been modified or customized), that provides for payment or receipt of $500,000 or more per year; (xv) relating to the sale of any of the foregoingmaterial assets or properties of the Company or any of the Company Subsidiaries other than in the ordinary course of business or for the grant to any Person of any options, but in rights of first refusal, or preferential or similar rights to purchase any event excluding trade payablesof such assets or properties; (xvi) relating to the acquisition by the Company or any of the Company Subsidiaries of any operating business or the capital stock of any other Person; (xvii) requiring the payment to any Person of a material commission or fee, securities transactions and brokerage agreements arising except in the ordinary course of business consistent with past practice; (xviii) that, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $100,000, except for those issued in the ordinary course case of business;
a Company Benefit Plan, any of the benefits of which would be increased, or the vesting of the benefits of which would be accelerated, by the occurrence of any of the Transactions, or the value of any benefits which would be calculated on the basis of any of the Transactions; or (2) that constitutes a collective bargaining or other arrangement with any labor union;
(3xix) that is a “material contract” within the meaning an insurance policy providing for indemnification of Item 601(b)(10) any officer or director of Regulation S-K;
(4) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessee ofSubsidiaries, or holds or operates, any property owned by any other Person;
(5) that is a lease or agreement under which than the Company Governing Documents; provided, however, that the foregoing definition of Company Material Contract shall not include any leases, subleases and other occupancy or any of use agreements concerning the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any real property owned or controlled leased by the Company or any of the Company Subsidiaries;
(6) limiting , including the ability of the Material Company or any of the Company Subsidiaries to engage, in any material respect, in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(7) that is a settlement, conciliation or similar agreement, the performance of which will involve payment after the First Closing Date of consideration in excess of $100,000;
(8) that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000);
(9) that concerns the sale or acquisition of any material portion of the Company’s business;
(10) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability in excess of $100,000 and which, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice;
(12) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking; and
(13) any other contract, agreement or understanding material to the Company or any of the Company Subsidiaries or their respective operations. Each Contract of a type Previously Disclosed above to this Section 2.2(t) Leases (collectively, the “Material ContractsCompany Leases”).
(b) As of the date hereof, there is no Company Agreement (i) legal, valid and binding on other than the Company and the Company Subsidiaries which are a party to such contractLeases), (ii) is in full force and effect and enforceable in accordance with its terms and (iii) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor benefits to the Company’s Knowledge, any other party thereto is in default under any Material Contract. No benefits under any Material Contract of which will be increased, and no or the vesting of the benefits to any benefits under any Material Contract party of which will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will Transactions or the value of any of the benefits under to any Material Contract party of which will be calculated on the basis of any of the transactions contemplated by Transactions (except as disclosed pursuant to Section 3.11). As of the Transaction Documents. The date hereof, each Company Material Contract is valid and binding on the Company and each Company Subsidiary party thereto and, to the Company’s knowledge, as of the date hereof, each other party thereto, as applicable, and in full force and effect, and the Company Subsidiariesand each Company Subsidiary has performed in all respects all obligations required to be performed by it under each Company Material Contract, and except any failure of performance that would not have or be reasonably likely to have, individually or in the aggregate, a Company Material Adverse Effect and, to the Knowledge Company’s knowledge, as of the Companydate hereof, each of the other parties thereto, have party to each Company Material Contract has performed in all material respects all material obligations required to be performed by them it under each such Company Material Contract, and except as would not have or be reasonably likely to have, individually or in the aggregate, a Company Material Adverse Effect. As of the date hereof, none of the Company or any Company Subsidiary knows of, or has received notice of, any violation or default under (or any condition which with the passage of time or the giving of notice would cause such a violation of or default under) any Company Material Contract except for violations or defaults that would not have or be reasonably likely to have, individually or in the aggregate, a Company Material Adverse Effect. The Company has delivered to Parent or provided or made available to Parent for review, prior to the Knowledge execution of this Agreement, true and complete copies of all of the Company Material Contracts required to be disclosed in Section 3.13 of the Company Disclosure Schedule, which are not filed as exhibits to the Company SEC Documents, and the Company Material Contracts required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true and complete copies of such contracts.
(c) As of the date hereof, none of the Company, no event any Company Subsidiary or any Hospice has occurred received any written notice from any Person supplying products, materials or drugs to the Company, any Company Subsidiary or any Hospice that with notice such Person intends to (i) cease selling such products, materials or lapse of time would constitute a material breach drugs to the Company, any Company Subsidiary or default any Hospice, (ii) limit or permit terminationreduce such sales to the Company, modificationany Company Subsidiary or any Hospice, or acceleration(iii) increase the prices at which such sales are made to the Company, under any Company Subsidiary or any Hospice, except for any such cessation, limitation, reduction or increase that would not have or be reasonably likely to have, individually or in the agreement and no aggregate, a Company Material Adverse Effect. As of the date hereof, none of the Company, any Company Subsidiary or any Hospice has received any written notice from any third-party thereto has repudiated payor that it intends to terminate, limit or reduce its business relations with the Company, any provision Company Subsidiary or any Hospice in the event of such contracta sale of the Company or otherwise except as would not have or be reasonably likely to have, individually or in the aggregate, a Company Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Gentiva Health Services Inc), Merger Agreement (Odyssey Healthcare Inc)
Contracts. Except (a) Section 3.18(a) of the Company Disclosure Letter sets forth, as Previously Disclosedof the date hereof, neither any agreement, lease, license, use or occupancy agreement, contract, note, mortgage, indenture, arrangement or other binding obligation (each, a “Contract”) to which the Company or any Company Subsidiaries is currently a party to or by which it or any of them are otherwise currently bound, that is not filed as an exhibit to the Company SEC Documents or that is not a Contract which is posted and available for review by Parent as of 12:00 p.m., Chicago time, on January 7, 2010, in the internet based data site maintained by the Company with ▇▇▇▇▇▇▇ Corporation and referred to commonly as the Krusher Data Site (the “Posted Data Room Documents”): (i) that would be required to be filed by the Company as an exhibit to any Company SEC Document pursuant to Item 601(b)(4) or 601(b)(10) of Regulation S-K under the Securities Act; (ii) pursuant to which the Company or any Company Subsidiary (A) licenses or otherwise obtains the right to use the Intellectual Property rights of any other Person (other than licenses for readily available commercial software or licenses of Intellectual Property which are not material to the manufacture or sale by the Company or any Company Subsidiary of any product of the Company or any Company Subsidiary), or (B) is restricted in any material respect in its right to use any Company Intellectual Property where any such material restriction would reasonably be expected to result, individually or in the aggregate, in a Company Material Adverse Effect; (iii) that, since January 1, 2003, relates to the acquisition or disposition of any material business or material real property (whether by merger, sale of stock, sale of assets or otherwise), not including any disposition which has been reflected in prior financial statements of the Company that have been filed as part of the Company SEC Documents; (iv) that relates to any acquisition of assets or of a business under which there is a future obligation on the part of the Company or any Company Subsidiary which would reasonably be expected to exceed $500,000 under any such Contract, including by means of an earn-out or similar contingent payment mechanism; (v) purporting to restrict or prohibit the Company or any Company Subsidiary from engaging or competing in the manufacture, marketing, distribution or sale of any of the products or services presently manufactured, marketed, distributed or sold by the Company or any Company Subsidiaries; (vi) that relates to any partnership, joint venture, strategic alliance or other similar arrangement (each a “JV”) in which the Company or any Company Subsidiary is a partner, member or party, excepting any JV with respect to which the Company or the Company Subsidiary which is a partner, member or party thereof has no remaining capital contribution obligation, no unperformed obligation to extend credit, and with respect to which it has no personal liability respecting such JV’s indebtedness, liabilities and obligations; (vii) that evidences or is the primary document under which there arises Indebtedness of the Company or any Company Subsidiary (other than agreements with or among direct or indirect wholly owned Company Subsidiaries) in excess of $1,000,000; (viii) under which the Company or any Company Subsidiary has advanced or loaned any other person the principal sum of more than $1,000,000, not including credit extended to customers in the ordinary course of business; (ix) that includes any guarantee by the Company or any Company Subsidiary of any debt or obligations which are in excess of $500,000 (other than any guarantee by the Company of a Company Subsidiary’s debts or obligations or a guarantee by a Company Subsidiary of the Company’s debts or obligations or another Company Subsidiary’s debts or obligations); (x) the performance of which involves expenditures or receipts of the Company or any Company Subsidiary in excess of $1,000,000 per year not entered into in the ordinary course of business; (xi) that provides for the production by the Company or any Company Subsidiary of any product on an exclusive or requirements basis or the purchase by the Company or any Company Subsidiary of any product on an exclusive or output basis, and was not made in the ordinary course of business by the Company or any Company Subsidiary; (xii) with any director or officer of the Company or any other employee of the Company or any Company Subsidiary earning noncontingent cash compensation in excess of $150,000 per year (including any employment, consulting, retention, severance, change in control, non-competition, termination or indemnification agreements); (xiii) that is a collective bargaining agreement or similar labor agreement with a labor union or labor organization with respect to employees of the Company or any Company Subsidiary; (xiv) to which the Company or any Company Subsidiary is a party with any Governmental Entity, excepting any such Contract made in the ordinary course of business and not to resolve any claimed liability for breach or violation of any law or regulation of governmental authority; (xv) that grants any party to the Contract or any other third party “most favored nation” pricing or terms under a Contract which may not be terminated on sixty (60) days or less notice by the Company or the Company Subsidiary which is a party to such Contract; (xvi) the failure to obtain consent in respect of, individually or in the aggregate, would reasonably be expected to result in a Company Material Adverse Effect and (xvii) that provides for termination, acceleration of payment or other special rights upon the occurrence of a change in control of the Company where such termination, acceleration of payment or other special right would reasonably be expected to be material to the Company (each such Contract described in clauses (i) through (xvii), each Contract filed as an exhibit to the Company SEC Documents and each of the Posted Data Room Documents that meets the description of any of clauses (i) though (xvii) is referred to herein as a “Company Material Contract”).
(b) A true, correct and complete copy of each Company Material Contract (and any amendments thereto) has been made available to Parent. Neither the Company nor any Company Subsidiary is in breach of or default under the terms of any Company Material Contract except for such breaches or defaults that, individually or in the aggregate, have not resulted in or would not reasonably be expected to result in a Company Material Adverse Effect. To the knowledge of the Company, no other party to any contracts Company Material Contract is in breach of or agreements:
default (1with or without notice or lapse of time, or both) relating to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect under the terms of any of the foregoingCompany Material Contract except for such breaches or defaults that, but in any event excluding trade payables, securities transactions and brokerage agreements arising individually or in the ordinary course of business consistent with past practiceaggregate, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) have not resulted in excess of $100,000, except for those issued or would not reasonably be expected to result in the ordinary course of business;
(2) that constitutes a collective bargaining or other arrangement with any labor union;
(3) that Company Material Adverse Effect. Each Company Material Contract is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(4) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person;
(5) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(6) limiting the ability valid and binding obligation of the Company or any of the Company Subsidiaries to engageSubsidiary which is party thereto and, in any material respect, in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(7) that is a settlement, conciliation or similar agreement, the performance of which will involve payment after the First Closing Date of consideration in excess of $100,000;
(8) that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000);
(9) that concerns the sale or acquisition of any material portion knowledge of the Company’s business;
(10) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability in excess , of $100,000 each other party thereto, and which, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice;
(12) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking; and
(13) any other contract, agreement or understanding material to the Company or any of the Company Subsidiaries or their respective operations. Each Contract of a type Previously Disclosed above to this Section 2.2(t) (collectively, the “Material Contracts”), is (i) legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (ii) is in full force and effect and enforceable effect, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in accordance with its terms effect, relating to creditors’ rights generally and (iiiii) will continue equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Company’s Knowledge, any other party thereto is in default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, equitable defenses and to the Knowledge discretion of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to court before which any proceeding therefor may be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the agreement and no party thereto has repudiated any provision of such contractbrought.
Appears in 2 contracts
Sources: Rights Agreement (K Tron International Inc), Merger Agreement (K Tron International Inc)
Contracts. (a) Except (i) for this Agreement, (ii) for the Contracts filed as Previously Disclosedexhibits to the SEC Reports prior to the date hereof, (iii) for the Company Plans and Company Stock Plans or (iv) as set forth in Section 3.8 of the Company Disclosure Schedule, as of the date hereof, neither the Company nor any of its subsidiaries is party to or bound by any Contract that:
(i) contains covenants binding upon the Company Subsidiary or any of its Affiliates that materially restrict the ability of the Company or any of its Affiliates to compete in any business or in any geographic area that, in each case, are material to the Company and its subsidiaries taken as a whole as of the date of this Agreement, except for leases;
(ii) is a material partnership, joint venture or similar Contract that, in each case, is material to the Company and its subsidiaries taken as a whole as of the date of this Agreement;
(iii) under which the Company or any of its subsidiaries is liable for indebtedness in excess of $50,000,000;
(iv) expressly limits or otherwise restricts the ability of the Company or any of its subsidiaries to pay dividends or make distributions to its shareholders (excluding restrictions applicable only upon a default or event of default);
(v) by its terms calls for aggregate payments by the Company and its subsidiaries under such Contract of more than $50,000,000 over the remaining term of such Contract (other than this Agreement, Contracts subject to clause (iii) above, purchase orders for the purchase of inventory and/or equipment in the ordinary course of business and leases);
(vi) relates to the acquisition or disposition of any business (whether by merger, sale of stock, sale of assets or otherwise) for consideration in excess of $50,000,000; and
(vii) by its terms calls for aggregate payments to the Company and its subsidiaries under such Contract of more than $50,000,000 over the remaining term of such Contract (other than this Agreement or purchase orders for the purchase of inventory and/or equipment in the ordinary course of business). Each Contract (i) set forth (or required to be set forth) in Section 3.8 of the Company Disclosure Schedule, (ii) 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, or (iii) disclosed by the Company on a Current Report on Form 8-K as a "material contract" (excluding any Company Plan), is referred to herein as a "Company Material Contract".
(b) Each of the Company Material Contracts is a legal, valid and binding obligation of, and enforceable against, the Company or the Company subsidiary that is a party thereto and, to any contracts or agreements:
(1) relating to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any the knowledge of the foregoingCompany, but each other party thereto, and is in full force and effect in accordance with its terms, subject to the Bankruptcy and Equity Exception, except (i) to the extent that any event excluding trade payables, securities transactions and brokerage agreements arising Material Contract expires or terminates in accordance with its terms in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases (ii) for telephonessuch failures to be legal, copy machinesvalid and binding or to be in full force and effect that do not have and would not reasonably be expected to have, facsimile machines and other office equipment) in excess of $100,000, except for those issued individually or in the ordinary course of business;aggregate, a Material Adverse Effect on the Company.
(2c) that constitutes a collective bargaining The Company or other arrangement with any labor union;
(3) its subsidiary that is a “material contract” within party to a Company Material Contract is in compliance with all terms and requirements of each Company Material Contract, and no event has occurred that, with notice or the meaning passage of Item 601(b)(10) of Regulation S-K;
(4) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessee oftime, or holds both, would constitute a breach or operates, any property owned by any other Person;
(5) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled default by the Company or any of the Company Subsidiaries;
(6) limiting the ability of the Company or any of the Company Subsidiaries to engage, in any material respect, in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(7) that is a settlement, conciliation or similar agreement, the performance of which will involve payment after the First Closing Date of consideration in excess of $100,000;
(8) that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000);
(9) that concerns the sale or acquisition of any material portion of the Company’s business;
(10) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability in excess of $100,000 and which, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice;
(12) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking; and
(13) any other contract, agreement or understanding material to the Company or any of the Company Subsidiaries or their respective operations. Each Contract of a type Previously Disclosed above to this Section 2.2(t) (collectively, the “Material Contracts”), is (i) legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (ii) is in full force and effect and enforceable in accordance with its terms and (iii) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Company’s Knowledge, any other party thereto is in default subsidiaries under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The such Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and and, to the Knowledge knowledge of the Company, no other party to any Company Material Contract is in breach or default (nor has any event has occurred that which, with notice or lapse the passage of time time, or both, would constitute such a material breach or default) under any Company Material Contract, except in each case where such violation, breach, default or permit terminationevent of default does not have and would not reasonably be expected to have, modificationindividually or in the aggregate, or acceleration, under a Material Adverse Effect on the agreement and no party thereto has repudiated any provision of such contractCompany.
Appears in 2 contracts
Sources: Agreement and Plan of Merger, Merger Agreement
Contracts. Except as Previously DisclosedAs of the date hereof, neither the Company nor any Company Subsidiary of its Subsidiaries is a party to or is bound by any contracts or agreementsContract:
(1) relating to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $100,000, except for those issued in the ordinary course of business;
(2a) that constitutes a collective bargaining or other arrangement with any labor union;
(3) that is would be required to be filed by the Company as a “material contract” within the meaning of pursuant to Item 601(b)(10) of Regulation S-KK under the Securities Act;
(4b) any Contract that is a lease imposes any material restriction on the right or agreement under which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person;
(5) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(6) limiting the ability of the Company or any of its Subsidiaries to compete with any other Person or in any geographic area, or any other provision that by its express terms materially restricts the conduct of any line of business or activities in connection with any product line by the Company Subsidiaries or any of its Affiliates (or that following the Closing will materially restrict the ability of Parent or any of its Affiliates to engage, in any material respect, engage in any line of business or to compete, whether by restricting territories, customers or otherwise, activities in connection with any product line or in any other material respect, geographic area or compete with any Person;
(7) that is a settlement, conciliation or similar agreement, the performance of which will involve payment after the First Closing Date of consideration in excess of $100,000;
(8) that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000);
(9c) any Contract that concerns (i) obligates the sale Company or acquisition any of its Subsidiaries (or following the Closing, Parent or any of its Affiliates) to conduct its or their respective businesses with any other Person on a preferential or exclusive basis, (ii) contains “most favored nation” or similar covenants or preferential treatment in favor of any material portion other Person or (iii) is a requirements or “take or pay” Contract or otherwise requires the Company to purchase a minimum amount of the Company’s business;
(10) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability in excess of $100,000 and whichparticular product from a supplier, in each case, cannot be cancelled in a manner that is material to the Company and its Subsidiaries, taken as a whole;
(d) any Contract requiring or otherwise relating to any future capital expenditures by the Company without penalty or without more than 90 days’ noticeany of its Subsidiaries that are $1,000,000 in excess of the Company’s capital expenditure budget that has been made available to Parent;
(12e) any Contract with or to a labor union or guild (including any collective bargaining agreement);
(f) any Contract relating to Indebtedness for borrowed money of the Company or any of its Subsidiaries having an outstanding principal amount in excess of $1,000,000 that concerns is not disclosed in the Company SEC Documents;
(g) any Contract that grants any option, right of first refusal, right of first offer or similar right or any other Lien with respect to any material hedgeassets, collar, option, forward purchasing, swap, derivative rights or similar agreement, understanding properties of the Company or undertaking; andits Subsidiaries;
(13h) any Contract that provides for the acquisition or disposition of any asset (other contractthan acquisitions or dispositions of inventory in the ordinary course of business) or business (whether by merger, agreement sale of stock, sale of assets or understanding otherwise) and with any outstanding obligations that are material to the Company or any of the Company Subsidiaries or their respective operations. Each Contract of a type Previously Disclosed above to this Section 2.2(t) (collectively, the “Material Contracts”), is its Subsidiaries; and
(i) legalany joint venture, partnership or limited liability company agreement or other similar Contract relating to the formation, creation, operation, management, control, dissolution, wind-up, exit from or buyout of any joint venture, partnership or limited liability company, other than any such Contract solely between the Company and its wholly owned Subsidiaries or solely among the Company’s wholly owned Subsidiaries; and
(j) any Contract to which a (i) Top Supplier or (ii) Top Customer is a party. Each of the Contracts of the types described in this Section 3.15 is referred to as a “Material Contract”. Except for this Agreement and any Contract filed as an exhibit to the Company SEC Documents in unredacted form, the Company has made available to Parent or its Representatives a true, correct and complete copy of each Material Contract (including all amendments, modifications thereof) and Section 3.15 of the Company Disclosure Letter sets forth a correct and complete list of all Material Contracts. Each Material Contract is valid and binding on the Company and each of its Subsidiaries party thereto and, to the Company Subsidiaries which are a knowledge of the Company, any other party thereto, except for such failures to such contract, (ii) is be valid and binding or to be in full force and effect and enforceable that would not, individually or in accordance with the aggregate, reasonably be expected to have a Material Adverse Effect. Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, there is no default under any Material Contract by the Company or any of its terms and (iii) will continue Subsidiaries party thereto or, to be legalthe knowledge of the Company, valid, binding, enforceableany other party thereto, and in full force and effect on identical terms following no event has occurred that with the consummation lapse of time or the giving of notice or both would constitute a default thereunder by the Company or any of its Subsidiaries party thereto or, to the knowledge of the transactions contemplated by Company, any other party thereto. There are no material disputes pending or, to the Transaction Documents. Neither knowledge of the Company, threatened with respect to any Material Contract and neither the Company nor any of its Subsidiaries has received any written notice of the Company Subsidiariesintention of any other party to a Material Contract to terminate for default, convenience or not renew any Material Contract, nor to the Company’s Knowledge, any other party thereto is in default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any knowledge of the transactions contemplated by Company, is any such party threatening to do so. Except as would not, individually or in the Transaction Documentsaggregate, nor will the value of any of the benefits under any reasonably be expected to have a Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company SubsidiariesAdverse Effect, and to the Knowledge knowledge of the Company, each of the other parties theretorepresentations and warranties set forth in Section 3.9 and Section 3.10 is true and correct with respect to Seven Hills. Except as otherwise set forth in the organizational documents of Seven Hills, have performed neither the Company nor any of its Subsidiaries has entered into any agreement granting any Person the right to make a debt or equity investment in all material respects all material obligations required to be performed by them under each Material Contract, and to Seven Hills or acquire the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the agreement and no party thereto has repudiated any provision of such contractSeven Hills Interest.
Appears in 2 contracts
Sources: Merger Agreement (Continental Building Products, Inc.), Merger Agreement (Continental Building Products, Inc.)
Contracts. Except (a) Section 3.10(a) of the Seller Disclosure Schedule sets forth an accurate and complete list as Previously Disclosed, neither of the date hereof of each Contract to which the Company nor any Company Subsidiary is a party to any contracts or agreementsparty, which:
(i) includes a term extending more than one (1) year beyond the date of this Agreement;
(ii) involves future annual expenditures or receipts by the Company in excess of $5,000 in the aggregate during the term thereof;
(iii) pursuant to which the Company sells products to customers or vendors;
(iv) relates to the borrowing of money or guarantying any obligation for borrowed money or otherwise, including any Contract that is a (A) mortgage, indenture, note, installment obligation or other instrument relating to indebtedness for borrowed the borrowing of money, (B) letter of credit, bond or other indemnity (including letters of credit, capital lease obligationsbonds or other indemnities as to which the Company is the beneficiary, obligations secured by a Lien but excluding endorsements of instruments for collection) or (C) currency or interest rate swap, collar or currency hedging agreements hedge agreements;
(including guarantees v) affects the ownership of, leasing of, title to, use of, or any other possessory interest in any Company Properties;
(vi) pursuant to which the Company uses Intellectual Property owned by a third party, except for any license implied by the sale of a product and perpetual, paid-up licenses for commonly available software programs with a value of less than $1,000 under which the Company is the licensee;
(vii) involves any labor union or other employee representative of a group of employees;
(viii) creates a partnership or joint venture with any other Person;
(ix) contains covenants that in any way purport to restrict the business activity of the Company or limit the freedom of the Company to engage in any line of business, to compete with any Person or solicit or hire any person with respect to employment;
(x) pursuant to which the Company extends a written warranty, guaranty or other similar undertaking with respect to contractual performance;
(xi) provides for payments to Employees as a result of the transactions contemplated by this Agreement;
(xii) involves the sale of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising assets of the Company other than in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases or for telephones, copy machines, facsimile machines and other office equipment) in excess the grant to any Person of $100,000, except for those issued in any preferential rights to purchase any of the ordinary course of businessCompany’s assets;
(2xiii) that constitutes a collective bargaining relates to the acquisition (by merger, purchase of stock or other arrangement with any labor union;
(3assets or otherwise) that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(4) that is a lease or agreement under which by the Company of any operating business or any material assets or the capital stock of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person;
(5xiv) that is a lease or agreement under which obligates the Company to provide or any obtain products or services for a period of one (1) year or more or requiring the Company Subsidiaries is lessor of, to purchase or permits any Person to hold sell a stated portion of its requirements or operate, any property owned or controlled by the Company or any of the Company Subsidiariesoutputs;
(6xv) limiting under the ability terms thereof, the Company has made advances or loans to any other Person;
(xvi) provides for severance, retention, change in control or other similar payments;
(xvii) provides for the employment of any individual on a full-time, part-time or consulting or other basis; and
(xviii) is otherwise material to the Company. The Contracts listed in Section 3.10(a) of the Seller Disclosure Schedule are referred to in this Agreement as the “Material Contracts”.
(b) With respect to each such Material Contract, neither the Company party to the Material Contract nor any other party to the Material Contract is in breach or default under any material provisions of such Material Contract except for such breaches or defaults as to which requisite waivers or consents have been issued or obtained. No event has occurred that with the lapse of time or the giving of notice or both would constitute a material breach or default on the part of the Company or any other party under any Material Contract. Upon consummation of the Company Subsidiaries to engagetransactions contemplated by this Agreement, each Material Contract will, except as otherwise stated in any material respect, in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(7Section 3.10(b) that is a settlement, conciliation or similar agreement, the performance of which will involve payment after the First Closing Date of consideration in excess of $100,000;
(8) that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000);
(9) that concerns the sale or acquisition of any material portion of the Company’s business;
(10) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability in excess of $100,000 and whichSeller Disclosure Schedule, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice;
(12) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking; and
(13) any other contract, agreement or understanding material to the Company or any of the Company Subsidiaries or their respective operations. Each Contract of a type Previously Disclosed above to this Section 2.2(t) (collectively, the “Material Contracts”), is (i) legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (ii) is continue in full force and effect and enforceable in accordance with its terms and (iii) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following without penalty or other adverse consequence triggered by the consummation of the transactions contemplated by the Transaction Documentsthis Agreement. Neither Each Material Contract is enforceable as to the Company nor 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. From January 1, 2011 to the date hereof, (i) no party to any of the Company SubsidiariesMaterial Contracts has exercised any termination rights with respect thereto, nor (ii) no party has given written notice of any significant dispute with respect to any Material Contract, and (iii) no party has provided written notification to the Company’s KnowledgeSeller or the Company that it will stop or, any other party thereto is in default under than generally applicable price increases, materially alter the pricing or terms of any Material Contract. No benefits under any Material Contract will be increasedThe Seller has delivered to the Purchaser true, correct and no vesting complete copies of any benefits under any Material Contract will be accelerated, by the occurrence of any all of the transactions contemplated by the Transaction DocumentsMaterial Contracts, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiariestogether with all amendments, and to the Knowledge of the Company, each of the other parties modifications or supplements thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the agreement and no party thereto has repudiated any provision of such contract.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Capsalus Corp), Stock Purchase Agreement (Genelink Inc)
Contracts. (a) Except as Previously Discloseddisclosed in SCHEDULE 4.20, neither the Company nor any Company Subsidiary its Subsidiaries is a party or subject to any of the following written or oral contracts and agreements: (i) any union or collective bargaining agreements and any employment contracts; (ii) any contracts with agents, consultants, advisors, salespersons, sales representatives, distributors or dealers; (iii) any contracts or agreements:
commitments for capital expenditures or the acquisition of fixed assets providing for payments of $10,000 in the aggregate; (1iv) any contracts relating to the rental or use of equipment, other personal property or fixtures involving payment of fixed or contingent annual rentals or sums in excess of $10,000; (v) any contracts relating in any way to indebtedness for borrowed moneymoney or evidenced by a bond, letters debenture, note or other evidence of indebtedness (whether secured or unsecured) including but not limited to, indebtedness by way of lease or installment purchase arrangement, guarantee, undertaking on which others rely in extending credit, capital lease obligationsor otherwise, obligations secured by a Lien and any conditional sales contracts, chattel and purchase money mortgages and other security arrangements with respect to any equipment, other personal property or interest rate fixtures; (vi) any contracts limiting the freedom of the Company or currency hedging its Subsidiaries to engage in or to compete in any line of business or with any person or in any area or to use or disclose any information in its possession; (vii) any license or franchise agreements, either as licensor or licensee or as franchisee or franchisor; (viii) any contracts or commitments not made in the ordinary course of business; (ix) any joint venture or partnership contracts; (x) any contracts or agreements (including guarantees in respect for the purchase of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising materials or supplies or services in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipmentinvolving more than $10,000 in consideration in each such case; (xi) in excess of $100,000, except for those issued in the ordinary course of business;
(2) that constitutes a collective bargaining any contracts or other arrangement with any labor union;
(3) that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(4) that is a lease or agreement agreements under which either the Company or its Subsidiaries has agreed to indemnify any of the Company Subsidiaries is lessee ofperson or entity with respect to, or holds or operatesto share, any property owned by any other Person;
(5) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(6) limiting the ability of the Company or any of the Company Subsidiaries to engage, in any material respect, in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(7) that is a settlement, conciliation or similar agreement, the performance of which will involve payment after the First Closing Date of consideration in excess of $100,000;
(8) that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000);
(9) that concerns the sale or acquisition liability of any material portion of the Company’s business;
person or entity; and (10) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability in excess of $100,000 and which, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice;
(12) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking; and
(13xii) any other contract, agreement contract or understanding commitment which is material to the Company or any of the Company its Subsidiaries or their respective operationsthat, if terminated, could reasonably be expected to have, with the passage of time or otherwise, a Material Adverse Effect. Each Contract of a type Previously Disclosed above to this Section 2.2(t) (collectively, the “Material Contracts”), is (i) legal, valid The contracts and binding on the Company and the Company Subsidiaries agreements which are a party to such contract, (ii) is in full force and effect and enforceable in accordance with its terms and (iii) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Company’s Knowledge, any other party thereto is in default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under identified in SCHEDULE 4.20 are each Material Contract, hereinafter referred to individually as a "CONTRACT" and to collectively as the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the agreement and no party thereto has repudiated any provision of such contract"CONTRACTS."
Appears in 2 contracts
Sources: Stock Purchase Agreement (Active Iq Technologies Inc), Stock Purchase Agreement (Meteor Industries Inc)
Contracts. Except as Previously Disclosed, neither (a) Section 3.16(a) of the Company nor Disclosure Letter sets forth a list of all Material Contracts as of the date of this Agreement. For purposes of this Agreement, “Material Contract” means any Contract to which the Company Subsidiary or any of its Subsidiaries is a party to or by which the Company or any contracts of its Subsidiaries or agreementsany of their respective properties or assets is bound that:
(1i) relating is or would be required to indebtedness for borrowed moneybe filed as an exhibit to the Company’s Annual Report on Form 10-K pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(ii) relates to the formation, letters of creditcreation, capital lease obligationsgovernance, obligations secured by a Lien economics or interest rate or currency hedging agreements (including guarantees in respect control of any joint venture, partnership or other similar arrangement, other than (x) with respect to any partnership that is wholly owned by the Company or any of its wholly owned Subsidiaries and (y) for the foregoingavoidance of doubt, but in any event excluding trade payablesmarketing, securities transactions licensing, manufacturing and brokerage agreements arising in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $100,000, except for those issued distribution Contracts entered into in the ordinary course of business;
(2iii) that constitutes a collective bargaining provides for indebtedness for borrowed money of the Company or any of its Subsidiaries having an outstanding or committed amount in excess of $10 million, other arrangement with than (A) indebtedness solely between or among any labor unionof the Company and any of its wholly owned Subsidiaries or (B) letters of credit;
(3iv) 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 $10 million (A) that is a “material contract” within was entered into after January 1, 2015 or (B) pursuant to which any earn-out, indemnification or deferred or contingent payment obligations remain outstanding that would reasonably be expected to involve payments by or to the meaning Company or any of Item 601(b)(10) its Subsidiaries of Regulation S-Kmore than $5 million after the date hereof (in each case, excluding for the avoidance of doubt, acquisitions or dispositions of supplies, inventory, merchandise or 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);
(4v) that is a lease Contract (other than purchase orders under a master agreement) for the purchase of materials, supplies, goods, services, equipment or agreement under other assets pursuant to which the Company or any of the Company its Subsidiaries is lessee of, or holds or operates, would reasonably be expected to make payments of more than $10 million during any property owned by any other Personfiscal year;
(5vi) that is a lease Contract (other than purchase orders under a master agreement) with a customer of the Company or agreement under any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries received aggregate net payments of more than $10 million during the fiscal year ended December 31, 2016;
(vii) contains any provision (A) limiting, in any material respect, the right of the Company or any of its Subsidiaries is lessor to engage in any business, make use of any material Intellectual Property, compete with any Person, or operate anywhere in the world, or (B) granting any exclusivity right to any third party, or containing a “most favored nation” provision in favor of any third party, in each case, other than (x) a Contract that can be terminated on less than 90 days’ notice without resulting in a breach or violation of, or permits any Person acceleration of any rights or obligations or the payment of any penalty under, such Contract, (y) distribution or customer Contracts entered into in the ordinary course of business granting exclusive rights to hold sell or operatedistribute certain of the Company’s and its Subsidiaries’ products or containing “most favored nation” provisions with respect to certain of the Company’s and its Subsidiaries’ products or (z) any provision in any license agreements for Intellectual Property limiting the Company’s and its Subsidiaries’ use of such Intellectual Property to specified fields of use or specified territories; or
(viii) is a (A) license or similar Contract with respect to (x) any ▇▇▇▇▇-▇▇▇▇▇▇ Act related litigation or (y) any products covered by an NDA and entered into since January 1, 2011, or (B) settlement, coexistence agreement, covenant not to ▇▇▇ or similar Contract with respect to any property owned material Intellectual Property, in each case, to which the Company or controlled any of its Subsidiaries is a party, beneficiary or otherwise bound (other than generally commercially available, “off the shelf” software programs or non-exclusive licenses granted by or to the Company or any of its Subsidiaries in the ordinary course of business which do not contain any material restriction or condition on the use or exploitation of any material Intellectual Property by the Company or any of the Company its Subsidiaries;).
(6b) limiting the ability of the Company Except with respect to any Contract that has previously expired in accordance with its terms, been terminated, restated or any of the Company Subsidiaries to engagereplaced, in any material respect, in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(7a) that each Material Contract is a settlement, conciliation or similar agreement, the performance of which will involve payment after the First Closing Date of consideration in excess of $100,000;
(8) that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000);
(9) that concerns the sale or acquisition of any material portion of the Company’s business;
(10) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability in excess of $100,000 and which, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice;
(12) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking; and
(13) any other contract, agreement or understanding material to the Company or any of the Company Subsidiaries or their respective operations. Each Contract of a type Previously Disclosed above to this Section 2.2(t) (collectively, the “Material Contracts”), is (i) legal, valid and binding on the Company and and/or any of its Subsidiaries to the Company Subsidiaries which are extent such Person is a party to such contractthereto, (ii) is in full force and effect and enforceable in accordance with its terms and (iii) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Company’s Knowledge, any other party thereto is in default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiariesas applicable, and to the Knowledge of the Company, each of the other parties party thereto, have performed and is in all material respects all material obligations required full force and effect, except where the failure to be performed by them under valid, binding or in full force and effect would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (b) the Company and each Material Contractof its Subsidiaries, and and, to the Knowledge of the Company, any other party thereto, have performed all obligations required to be performed by it under each Material Contract, except where such nonperformance would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (c) neither the Company nor any of its Subsidiaries have received written notice of the existence of any breach or default on the part of the Company or any of its Subsidiaries under any Material Contract, except where such default would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (d) there are no event has occurred that with events or conditions which constitute, or, after notice or lapse of time would or both, will constitute a material breach default on the part of the Company or default or permit termination, modificationany of its Subsidiaries, or accelerationto the Knowledge of the Company, any counterparty under such Material Contract and (e) to the agreement and no party thereto Knowledge of the Company, the Company has repudiated not received any provision of notice from any Person that such contractPerson intends to terminate, or not renew, any Material Contract, except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Fresenius SE & Co. KGaA), Merger Agreement (Akorn Inc)
Contracts. Except as Previously DisclosedSection 3.12 of the Disclosure Schedule contains a list of the following contracts, neither agreements, leases and other legally binding instruments, whether written or oral to which the Company nor any Company Subsidiary is is, or after the consummation of the transactions contemplated by the Contribution Agreement and the related transfer agreements will be, a party to any contracts or agreements:by which it is, or after the consummation of the transactions contemplated by the Contribution Agreement and the related transfer agreements will be, otherwise bound (each such contract, a “Material Contract”):
(1a) relating contracts with respect to indebtedness Benefit Plans sponsored by the Company;
(b) collective bargaining agreements and any other contracts with any labor unions;
(c) agreements for borrowed moneythe employment or engagement of any officer or employee (not including at-will employment or offer letters) that (i) provide annual cash or other compensation in excess of $50,000 per year, (ii) provide for Change of Control Payments, or (iii) restrict the ability of the Company to terminate the employment of any Person at any time for any lawful reason or for no reason without liability (including severance obligations);
(d) agreements or arrangements with any individual serving as an independent contractor who works for or supports the Business;
(e) loan or credit agreements, promissory notes, bonds, debentures, security agreements, pledge agreements, mortgages, indentures, factoring agreements, guarantees, letters of credit, capital lease obligationsperformance bonds, obligations secured by a Lien completion bonds, surety agreements, or interest rate similar financing arrangements;
(f) leases, subleases or currency hedging agreements (including guarantees in respect licenses, either as lessee, sublessee or licensee or as lessor, sublessor or licensor, of any of the foregoingpersonal property, but in any event excluding trade payablesincluding capital leases, securities transactions and brokerage which agreements arising in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) involve annual payments in excess of $100,000, except for those issued in the ordinary course of business;
(2) that constitutes a collective bargaining or other arrangement with any labor union;
(3) that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(4) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person;
(5) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(6) limiting the ability of the Company or any of the Company Subsidiaries to engage, in any material respect, in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(7) that is a settlement, conciliation or similar agreement, the performance of which will involve payment after the First Closing Date of consideration in excess of $100,000;
(8) that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000);
(9) that concerns the sale or acquisition of any material portion of the Company’s business;
(10) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability in excess of $100,000 and which, in each case200,000, cannot be cancelled by the Company without payment or penalty upon notice of 30 days or without more than 90 days’ noticeless, or have unexpired terms as of the Closing Date that exceed one year;
(12g) agreements or series of related agreements with customers, suppliers and vendors of the Company for the purchase or sale of goods or services involving payments in excess of $100,000 in the aggregate, which cannot be cancelled by the Company without payment or penalty upon notice of 30 days or less, or have unexpired terms as of the Closing Date that exceed one year, in each case in effect as of the date hereof;
(h) agreements with respect to the acquisition or disposition of any business, assets or securities outside the Ordinary Course of Business, or any equity or debt investment in or any loan to any Person;
(i) limited liability company agreements, partnership agreements, joint venture agreements and all other similar contracts (however named) that concerns involve a sharing of profits, losses, costs or liabilities by the Company with any material hedgeother Person;
(j) all agreements by which the Company, collarSeller or Holdings licenses any Business Intellectual Property to any Person and all agreements for Licensed Intellectual Property, optionother than agreements for commercial “off-the-shelf” Software or Open Source Software;
(k) agreements with Seller or any current or former officer, forward purchasingdirector, swapstockholder or Affiliate of the Company;
(l) agreements containing covenants of the Company not to compete in any line of business or with any person in any geographical area or covenants of any other Person not to compete with the Company in any line of business or in any geographical area;
(m) outstanding agreements of guaranty, derivative surety or similar agreementindemnification, understanding direct or undertakingindirect, by the Company;
(n) any Tax Sharing Agreement; and
(13o) any other contracteach amendment, agreement or understanding material to the Company or supplement and modification in respect of any of the Company Subsidiaries or their respective operationsforegoing. Each Contract All of a type Previously Disclosed above the Material Contracts to this Section 2.2(t) (collectively, the “Material Contracts”), is (i) legal, valid and binding on which the Company and the Company Subsidiaries which are a party to such contractis, (ii) is in full force and effect and enforceable in accordance with its terms and (iii) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following or after the consummation of the transactions contemplated by the Transaction Documents. Neither Contribution Agreement and the Company nor any related transfer agreements will be, a party are in full force and effect and are legal, valid and binding obligations of the Company SubsidiariesCompany, nor enforceable against it in accordance with their terms, and, to the Company’s Knowledge, any each other party thereto is in default under any Material Contract. No benefits under any Material Contract will thereto, except to the extent enforcement may be increased, and no vesting of any benefits under any Material Contract will be accelerated, affected by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction DocumentsEnforceability Exceptions. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed is in compliance in all material respects with the terms and requirements of such Material Contract and, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material obligations required to be performed by them under each respects with the terms and requirements of such Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or the lapse of time or the giving of notice or both would constitute a material breach default thereunder. No party to any of the Material Contracts has exercised any termination rights with respect thereto. The Company has made available to Purchaser true, correct and complete copies of all of the Material Contracts, together with all amendments, modifications or default or permit termination, modification, or acceleration, under the agreement and no party thereto has repudiated any provision of such contractsupplements thereto.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Autoliv Inc), Stock Purchase Agreement (M/a-Com Technology Solutions Holdings, Inc.)
Contracts. Except as Previously Disclosed, neither (a) Section 3.13(a) of the Company nor Disclosure Letter sets forth a list of each Contract, including all amendments, supplements, exhibits and side letters to any such Contract, to which the Company or any Company Subsidiary is a party to or by which any contracts of its properties or agreementsassets are bound which, as of the date of this Agreement:
(i) is required to be filed as an exhibit to the Company’s Annual Report on Form 10-K pursuant to Item 601(b)(2), (4), (9) or (10) of Regulation S-K promulgated under the Securities Act or required to be disclosed under Item 404 of Regulation S-K under the Securities Act (provided, that the Company shall only be required to list in clause (i) of Section 3.13(a) those Contracts that have not been filed with the SEC on or after January 1, 2015);
(ii) relating involves aggregate payments by, or other consideration or expenditures from, the Company or any Company Subsidiary in excess of $500,000 over the remaining term of such Contract, and is not cancelable within sixty (60) days without material payment by or penalty to indebtedness for borrowed moneythe Company or any Company Subsidiary;
(iii) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to the Company or any Company Subsidiary, letters or upon consummation of the Transactions, Parent or its Subsidiaries, or which restricts in any material respect the conduct of any line of business of the Company or any Company Subsidiary, or upon consummation of the Transactions, Parent or its Subsidiaries;
(iv) establishes a partnership, joint venture or similar arrangement;
(v) relates to the borrowing of money or extension of credit, capital lease obligations, obligations secured by in each case having a Lien principal amount of Indebtedness in excess of $1,000,000 other than accounts receivables and payables incurred or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment;
(vi) requires the Company or any Company Subsidiary to dispose of or acquire assets or properties with a fair market value in excess of $100,0001,000,000, except for those issued in the ordinary course of businessor involves any pending or contemplated merger, consolidation or similar business combination;
(2vii) that constitutes is a collective bargaining or other arrangement with any labor unionCompany Investment Contract;
(3viii) that is requires any delivery of notice or prior consent in connection with the Transactions, where, if such notice or consent were not made or obtained, would give rise to any right of termination, cancellation, acceleration or amendment of, or trigger any payments or the creation of a “material contract” within Lien or other encumbrance, or result in any violation of or breach of or constitute a default under such Contract in connection with the meaning consummation of Item 601(b)(10) of Regulation S-Kthe Mergers and the other Transactions;
(4ix) that is with a lease or agreement under which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other PersonGovernmental Entity;
(5x) that is relates to a lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;Related Party Transaction; or
(6xi) limiting contains any obligation, contingent or otherwise, on the ability part of the Company or any of the Company its Subsidiaries to engage, indemnify any other Person.
(b) Each Contract of the type described above in any material respect, in any line of business or to competeSection 3.13(a), whether by restricting territories, customers or otherwise, or not set forth in any other material respect, with any Person;
(7Section 3.13(a) that is a settlement, conciliation or similar agreement, the performance of which will involve payment after the First Closing Date of consideration in excess of $100,000;
(8) that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000);
(9) that concerns the sale or acquisition of any material portion of the Company’s business;
(10) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability in excess of $100,000 and which, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice;
(12) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking; and
(13) any other contract, agreement or understanding material to the Company or any of the Company Subsidiaries or their respective operations. Each Contract of a type Previously Disclosed above to this Section 2.2(t) (collectively, the “Material Contracts”)Disclosure Letter, is (i) referred to herein as a “Company Material Contract.” Except as, individually or in the aggregate, would not have or reasonably be expected to have a Company Material Adverse Effect, each Company Material Contract is legal, valid and valid, binding on the Company and the Company Subsidiaries which are a party to such contract, (ii) is in full force and effect and enforceable in accordance with its terms and (iii) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the and each Company SubsidiariesSubsidiary that is a party thereto and, nor to the Company’s Knowledge, any other party thereto is in default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge knowledge of the Company, each of the other parties party thereto, and is in full force and effect, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting creditors’ rights generally and by general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at Law). Except as, individually or in the aggregate, would not have or reasonably be expected to have a Company Material Adverse Effect, the Company and each Company Subsidiary has performed in all material respects all material obligations required to be performed by them it under each Company Material Contract and, to the knowledge of the Company, each other party thereto has performed all obligations required to be performed by it under such Company Material Contract. None of the Company or any Company Subsidiary, nor, to the knowledge of the Company, any other party thereto, is in material breach or violation of, or default under, 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 constitute a material violation, breach or default under any Company Material Contract, except where in each case such breach, violation or permit terminationdefault, modificationindividually or in the aggregate, would not have or accelerationreasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any Company Subsidiary has received written or, to the knowledge of the Company, other notice of any violation or default under any Company Material Contract.
(c) The Company has delivered or made available to Parent or provided to Parent for review, prior to the agreement execution of this Agreement, true and no party thereto has repudiated any provision complete copies of such contractall of the Company Material Contracts.
Appears in 2 contracts
Sources: Merger Agreement (Apollo Residential Mortgage, Inc.), Merger Agreement (Apollo Commercial Real Estate Finance, Inc.)
Contracts. Except as Previously Disclosed(a) SECTION 2.19(a) OF THE DISCLOSURE SCHEDULE (with paragraph references corresponding to those set forth below) contains a true and complete list of each of the following Contracts or other arrangements (true and complete copies or, neither if none, reasonably complete and accurate written descriptions of which, together with all amendments and supplements thereto and all waivers of any terms thereof, have been delivered to Purchaser prior to the execution of this Agreement), to which the Company nor or any Company Subsidiary is a party to or by which any contracts or agreementsof their respective Assets and Properties is bound:
(1A) all Contracts (excluding Benefit Plans) providing for a commitment of employment or consultation services for a specified or unspecified term or otherwise relating to indebtedness for borrowed moneyemployment or independent contracting or the termination of employment or independent contracting, letters the name, position and rate of creditcompensation of each Person party to such a Contract and the expiration date of each such Contract; and (B) any written or unwritten representations, capital lease obligationscommitments, obligations secured by a Lien promises, communications or interest rate courses of conduct (excluding Benefit Plans and any such Contracts referred to in clause (A)) involving an obligation of the Company or currency hedging agreements any Subsidiary to make payments in any year, other than with respect to salary or incentive compensation payments in the ordinary course of business, to any employee exceeding $50,000 or any group of employees exceeding $100,000 in the aggregate;
(including guarantees ii) all Contracts with any Person containing any provision or covenant prohibiting or limiting the ability of the Company or any Subsidiary to engage in respect any business activity or compete with any Person or, except as provided in SECTION 4.11, prohibiting or limiting the ability of any Person to compete with the Company or any Subsidiary;
(iii) all partnership, joint venture, shareholders' or other similar Contracts with any Person;
(iv) all Contracts relating to Indebtedness of the foregoingCompany or any Subsidiary in excess of $10,000 or to preferred stock issued by the Company or any Subsidiary;
(v) all material Contracts with distributors, but in dealers, manufacturer's representatives, sales agencies or franchisees;
(vi) all Contracts relating to (A) the future disposition or acquisition of any event excluding trade payablesAssets and Properties, securities transactions and brokerage agreements arising other than dispositions or acquisitions in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and (B) any merger or other office equipment) in excess of $100,000, except for those issued in the ordinary course of businessbusiness combination;
(2vii) that constitutes a collective bargaining all Contracts between or other arrangement with any labor union;
(3) that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(4) that is a lease or agreement under which among the Company or any of the Company Subsidiaries is lessee ofSubsidiary, or holds or operateson one part, and Love, any property owned by any officer, director, Affiliate (other Person;
(5) that is a lease or agreement under which than the Company or any Subsidiary) or Associate of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company Love or any Associate of the Company Subsidiariesany such officer, director or Affiliate, on another part;
(6viii) limiting all collective bargaining or similar labor Contracts;
(ix) all Contracts that (A) limit or contain restrictions on the ability of the Company or any Subsidiary to declare or pay dividends on, to make any other distribution in respect of or to issue or purchase, redeem or otherwise acquire its capital stock, to incur Indebtedness, to incur or suffer to exist any Lien, to 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 Subsidiaries or any Subsidiary to engage, in any material respect, in any line maintain specified financial ratios or levels of business net worth or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(7) that is a settlement, conciliation or similar agreement, the performance indicia of which will involve payment after the First Closing Date of consideration in excess of $100,000;
(8) that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000);
(9) that concerns the sale or acquisition of any material portion of the Company’s business;
(10) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability in excess of $100,000 and which, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice;
(12) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertakingfinancial condition; and
(13x) all other Contracts (other than Benefit Plans, leases listed in SECTION 2.16(a) OF THE DISCLOSURE SCHEDULE and insurance policies listed in SECTION 2.21 OF THE DISCLOSURE SCHEDULE) that (A) involve the payment or potential payment, pursuant to the terms of any other contractsuch Contract, agreement by or understanding material to the Company or any Subsidiary of more than $10,000 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 Subsidiaries or their respective operations. any Subsidiary.
(b) Each Contract of a type Previously Disclosed above required to this Section 2.2(tbe disclosed in SECTION 2.19(a) (collectively, the “Material Contracts”), is (i) legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (ii) OF THE DISCLOSURE SCHEDULE is in full force and effect and constitutes a legal, valid and binding agreement, enforceable in accordance with its terms terms, of each party thereto; and (iiiexcept as disclosed in SECTION 2.19(b) will continue to be legalOF THE DISCLOSURE SCHEDULE neither the Company, validany Subsidiary nor, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Company’s KnowledgeKnowledge of Love, any other party thereto is to such Contract is, or has received notice that it is, in violation or breach of or default under any Material Contract. No benefits under any Material such Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that (or with notice or lapse of time or both, would constitute a material be in violation or breach of or default under any such Contract) in any material respect.
(c) Except as disclosed in SECTION 2.19(c) OF THE DISCLOSURE SCHEDULE, neither the Company nor any Subsidiary is a party to or permit terminationbound by any Contract that has been or could reasonably be expected to be, modificationindividually or in the aggregate with any other such Contracts, materially adverse to the Business or acceleration, under Condition of the agreement and no party thereto has repudiated any provision of such contractCompany.
Appears in 2 contracts
Sources: Investment Agreement (PDT Inc /De/), Option to Purchase (PDT Inc /De/)
Contracts. Except as Previously Disclosed, neither (a) Neither the Company nor any Company Subsidiary of its Subsidiaries is a party to or is bound by any contracts or agreementsof the following Contracts that remain in effect as of the date hereof:
(1i) relating to indebtedness for borrowed moneyany employment or consulting Contract with any director, officer, employee, other than (A) “at-will” offer letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $100,000, except for those issued delivered in the ordinary course of business;
, and (2B) those that constitutes a collective bargaining or other arrangement with any labor union;
(3) that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(4) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person;
(5) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled 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 SubsidiariesCompany;
(6ii) limiting the ability of the Company any Contract (including any stock option Contract) or plan (including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan) any of the Company Subsidiaries to engage, in any material respect, in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(7) that is a settlement, conciliation or similar agreement, the performance benefits of which will involve payment after the First Closing Date of consideration in excess of $100,000;
(8) that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000);
(9) that concerns the sale or acquisition of any material portion of the Company’s business;
(10) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability in excess of $100,000 and which, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice;
(12) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking; and
(13) any other contract, agreement or understanding material to the Company or any of the Company Subsidiaries or their respective operations. Each Contract of a type Previously Disclosed above to this Section 2.2(t) (collectively, the “Material Contracts”), is (i) legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (ii) is in full force and effect and enforceable in accordance with its terms and (iii) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Company’s Knowledge, any other party thereto is in default under any Material Contract. No benefits under any Material Contract will be increased, and no or the vesting of any benefits under any Material Contract of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement (including the Transaction Documents, nor will Offer and the Merger) or the value of any of the benefits under any Material Contract of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(iii) any Contract that provides for indemnification of any director, officer, employee or agent, or any guaranty, other than Contracts entered into in the Transaction Documents. The ordinary course of business;
(iv) any Contract containing any covenant limiting in any respect the right of the Company or any of its Subsidiaries to engage in any line of business or to compete with any person or granting any exclusive distribution rights;
(v) any Contract relating to the disposition or acquisition by the Company or any of its Subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which the Company or any of its Subsidiaries has any material ownership interest in any Person other than the Company’s Subsidiaries;
(vi) any dealer, distributor or sales representative (in-bound or out-bound), marketing or development Contract, or any Contract pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property that will not be owned, in whole or in part, by the Company or any of its Subsidiaries;
(vii) any Contract to license any third party to manufacture or reproduce any Company product, service or technology (including, without limitation, any ASIC or ADG agreements), or any Contract to sell or distribute any Company products, service or technology except Contracts with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent;
(viii) any Contracts to provide source code to any third party for any product or technology that is material to the Company and its Subsidiaries taken as a whole;
(ix) any Contracts relating to the borrowing of money or the extension of credit;
(x) any settlement Contract under which the Company has ongoing obligations;
(xi) any Contract with a customer of the Company involving payments in excess of One Hundred Thousand Dollars ($100,000) in the aggregate; or
(xii) any Contract to which Phoenix Technologies or any of its Subsidiaries or other affiliates is a party.
(b) Neither the Company nor any of its Subsidiaries, and nor to the Knowledge knowledge of the Company, each any other party to a Company Contract, is in breach, violation or default under, and neither the Company nor any of its Subsidiaries has received written notice that it has breached, violated or defaulted under, any of the other parties thereto, have performed in all material respects all material obligations terms or conditions of any of the Contracts to which the Company or any of its Subsidiaries is a party or by which it is bound that are required to be performed by them under each Material disclosed in the Company Disclosure Schedule (any such Contract, a “Company Contract” and together, the “Company Contracts”) in such a manner as would permit any other party to cancel or terminate any such Company Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the Knowledge aggregate). The Company has provided to Parent a complete and accurate copy of any Contracts the Company has with the Company’s top fifty (50) customers, based upon the cumulative revenues of the CompanyCompany and its Subsidiaries for the trailing thirty (30) month period ended March 31, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the agreement and no party thereto has repudiated any provision of such contract2002.
Appears in 2 contracts
Sources: Merger Agreement (Synopsys Inc), Merger Agreement (Insilicon Corp)
Contracts. Except as Previously Disclosed, neither (a) Neither the Company nor any Company Subsidiary 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 contracts Contract that is filed as an exhibit to the Company SEC Documents.
(b) Except for Contracts filed in unredacted form as exhibits to the Company SEC Documents, and except for Contracts between the Company and its Subsidiaries or agreementsamong Subsidiaries, Section 3.10(b) of the Company Disclosure Letter sets forth a correct and complete list as of the date of this Agreement, and the Company has made available to Parent correct and complete copies (including all amendments, modifications, extensions, renewals, guaranties or other Contracts with respect thereto, but excluding all names, terms and conditions that have been redacted in compliance with applicable Laws governing the sharing of information), of:
(1i) relating to indebtedness for borrowed money, letters all Contracts of credit, capital lease obligations, obligations secured by a Lien the Company or interest rate or currency hedging agreements (including guarantees in respect of any of its Subsidiaries having an aggregate value per Contract, or involving payments by or to the foregoingCompany or any of its Subsidiaries, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of more than $100,000, except for those issued in the ordinary course of business1,000,000 on an annual basis;
(2ii) that constitutes a collective bargaining or other arrangement with any labor union;
(3) that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(4) that is a lease or agreement under all Contracts to which the Company or any of the Company its Subsidiaries is lessee ofa party, or holds or operatesby which the Company, any property owned by any other Person;
(5) that is a lease or agreement under which the Company of its Subsidiaries or any of the Company Subsidiaries its Affiliates is lessor ofbound, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(6) limiting that contain a covenant materially restricting the ability of the Company or any of its Subsidiaries (or which, following the Company Subsidiaries consummation of the Merger, would materially restrict the ability of Parent or any of its Subsidiaries, including the Surviving Entity and its Subsidiaries) to engage, compete in any material respect, in any line of business or to compete, whether by restricting territories, customers or otherwise, with any person or in any other material respect, with any Persongeographic area;
(7iii) that is a settlement, conciliation all material Contracts of the Company or similar agreement, any of its Subsidiaries with any Affiliate of the performance of which will involve payment after the First Closing Date of consideration in excess of $100,000;
(8) that relates to Intellectual Property Rights Company (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost any of less than $100,000its Subsidiaries);
(9iv) any (A) Contract to which the Company or any of its Subsidiaries is a party granting any license to Intellectual Property of the Company or any of its Subsidiaries that concerns involves payments by the sale Company or acquisition any of its Subsidiaries with respect to such license of more than $500,000 on an annual basis, and (B) other license (other than real estate) having an aggregate value per license, or involving payments by the Company or any material portion of its Subsidiaries, of more than $500,000 on an annual basis;
(v) all confidentiality agreements (other than those entered into in the ordinary course of business), agreements by the Company not to acquire assets or securities of a third party or agreements by a third party not to acquire assets or securities of the Company’s business;
(10vi) any Contract having an aggregate value per Contract, or involving payments by or to the Company or any of its Subsidiaries, of more than $500,000 on an annual basis that concerns requires consent of or notice to a partnership third party in the event of or joint venturewith respect to the Merger, including in order to avoid a breach or termination of or loss of benefit under any such Contract;
(11vii) all material joint venture, partnership or other similar agreements involving aggregate consideration liability in excess co-investment with a third party to which the Company or any of its Subsidiaries is a party;
(viii) any Contract with a Governmental Authority 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 $100,000 and which500,000 on an annual basis;
(x) all material outsourcing Contracts;
(xi) all Contracts with investment bankers, in each casefinancial advisors, cannot be cancelled attorneys, accountants or other advisors retained by the Company without penalty or without any of its Subsidiaries involving payments by or to the Company or any of its Subsidiaries of more than 90 days’ notice$500,000 on an annual basis;
(12xii) all Contracts providing for the indemnification by the Company or any of its Subsidiaries of any person, except for any such Contract that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking; and
(13i) any other contract, agreement or understanding is not material to the Company or any of its Subsidiaries and (ii) was entered into in the ordinary course of business; and
(xiii) all Contracts pursuant to which any indebtedness of the Company or any of its Subsidiaries is outstanding or their respective operations. Each Contract may be incurred and all guarantees of a type Previously Disclosed above to this Section 2.2(tor by the Company or any of its Subsidiaries of any indebtedness of any other person (other than the Company or any of its Subsidiaries) (collectively, except for such indebtedness or guarantees the “Material Contracts”aggregate principal amount of which does not exceed $1,000,000 on an annual basis and excluding trade payables arising in the ordinary course of business), is .
(i) legal, valid and binding on None of the Company and the Company or any of its Subsidiaries (x) is, or has received written notice or has Knowledge that any 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 (y) has waived or failed to enforce any rights or benefits under, any Contract to which are it is a party to such contractor any of its properties or other assets is subject, and (ii) is in full force and effect and enforceable in accordance with its terms and (iii) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Company’s Knowledge, any other party thereto is in default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, there has occurred no event has occurred that 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 constitute not reasonably be expected to have a material breach or default or permit termination, modification, or acceleration, under the agreement and no party thereto has repudiated any provision of such contractCompany Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Mgi Pharma Inc), Merger Agreement (Guilford Pharmaceuticals Inc)
Contracts. (a) Except as Previously Disclosedfor the contracts and agreements described in Schedule 4.11 of the Company Disclosure Schedule (collectively, the "COMPANY MATERIAL CONTRACTS"), neither Company nor the Company nor any Company Subsidiary Subsidiaries is a party to any or bound by the following contracts or agreements:(which for purposes of this Agreement shall be deemed Company Material Contracts):
(1i) relating any distribution or software manufacturer's representative contract that represents ten percent (10%) or more of Company's consolidated annual revenues;
(ii) any contract for the provision of software, outsourcing or consulting services or computer hardware, including contracts billed on time plus materials and fixed-price contracts involving in the case of any such contact more than $3,000,000 per annum;
(iii) any contract related to indebtedness the provision of services to early-stage entities in consideration for, among other things, equity interests in such entities, along with any subscription or other agreements with respect to investments in such entities and instruments or securities evidencing such equity interests, including any warrants or options;
(iv) any hedging arrangements, including any puts or call options;
(v) any trust indenture, mortgage, promissory note, loan agreement or other contract for borrowed the borrowing of money, letters of creditany currency exchange, capital lease obligations, obligations secured by a Lien commodities or interest rate other hedging arrangement or currency hedging agreements (including guarantees in respect of any leasing transaction of the foregoing, but type required to be capitalized in accordance with US GAAP;
(vi) any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases contract for telephones, copy machines, facsimile machines and other office equipment) capital expenditures in excess of $100,000, except for those issued 3,000,000 in the ordinary course of businessaggregate;
(2vii) that constitutes a collective bargaining or other arrangement with any labor union;
(3) that is a “contract limiting in any material contract” within respect the meaning of Item 601(b)(10) of Regulation S-K;
(4) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person;
(5) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(6) limiting the ability freedom of the Company or any of the Company Subsidiaries Subsidiary to engage, in any material respect, engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in compete with any other material respect, with any Person;
(7viii) that any contract pursuant to which the Company or any Company Subsidiary is a settlementlessor of any machinery, conciliation equipment, motor vehicles, office furniture, fixtures or other personal property involving in the case of any such contract more than $3,000,000 in any calendar year;
(ix) any contract with any Person (other than the Company or any Company Subsidiary) with whom the Company or any Company Subsidiary does not deal at arm's length within the meaning of the Code;
(x) any agreement of guarantee, support, indemnification, assumption or endorsement of, or any similar agreementcommitment with respect to, the performance obligations, liabilities (whether accrued, absolute, contingent or otherwise) or indebtedness of which will involve payment after any other Person; or
(xi) any agreement relating to the First Closing Date acquisition of a business for aggregate consideration in excess of $100,000;1,000,000 entered into in the last three years.
(8) that relates to Intellectual Property Rights (other than a license granted to the b) Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000);
(9) that concerns the sale or acquisition of any material portion and each Company Subsidiary has performed all of the Company’s business;
(10) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability in excess of $100,000 and which, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice;
(12) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking; and
(13) any other contract, agreement or understanding material to the Company or any of the Company Subsidiaries or their respective operations. Each Contract of a type Previously Disclosed above to this Section 2.2(t) (collectively, the “Material Contracts”), is (i) legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (ii) is in full force and effect and enforceable in accordance with its terms and (iii) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Company’s Knowledge, any other party thereto is in default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contractit and is entitled to all benefits under, and to the Knowledge of the Company, is not alleged to be in default in respect of any Company Material Contract. Each of the Company Material Contracts is in full force and effect, unamended, and there exists no default or event has occurred that of default or event, occurrence, condition or act, with notice respect to Company or any Company Subsidiary or to the Knowledge of Company with respect to the other contracting party, which, with the giving of notice, the lapse of the time or the happening of any other event or conditions, would constitute become a material breach or default or permit terminationevent of default under any Company Material Contract. True, modification, correct and complete copies of all Company Material Contracts have been delivered or acceleration, under the agreement and no party thereto has repudiated any provision of such contractmade available to Parent.
Appears in 2 contracts
Sources: Merger Agreement (Sapiens International Corp N V), Merger Agreement (Ness Technologies Inc)
Contracts. Except as Previously Disclosed, neither (a) Section 3.16 of the Company nor Disclosure Letter lists, as of the date of this Agreement, each Contract (other than any Company Subsidiary Plan) of the following types to which the Company or any of its Subsidiaries is a party to or by which any contracts of their respective properties or agreementsassets is bound:
(1i) 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 or disclosed by the Company on a Current Report on Form 8-K;
(ii) any Contract that (A) limits the ability of the Company or any of its Subsidiaries to compete in any line of business or with any Person or in any geographic area, or (B) restricts the right of the Company and its Subsidiaries to sell to or purchase from any Person or to hire any Person, in each case, in a manner that is material to the business of the Company and its Subsidiaries, taken as a whole;
(iii) any Contract that grants the other party or any third Person “most favored nation” status or any type of special discount rights, in each case, that is material to the business of the Company and its Subsidiaries, taken as a whole;
(iv) any Contract with respect to the formation, creation, operation, management or control of a joint venture, partnership or other similar agreement or arrangement;
(v) any Contract relating to indebtedness Indebtedness (other than such Contracts solely between or among the Company and its Subsidiaries) and having an outstanding principal amount in excess of $25,000,000;
(vi) any Contract involving the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests for borrowed money, letters aggregate consideration (in one or a series of credit, capital lease obligations, obligations secured by a Lien transactions) under such Contract of $25,000,000 or interest rate more (other than acquisitions or currency hedging agreements (including guarantees in respect dispositions of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising inventory in the ordinary course of business consistent with past practice, intercompany indebtedness ) and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $100,000, except for those issued in under which the ordinary course of businessCompany or its Subsidiaries have a continuing obligation or liability;
(2vii) that constitutes a collective bargaining or other arrangement with any labor union;
(3) that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(4) that is a lease or agreement under Contract pursuant to which the Company or any of the Company its Subsidiaries is lessee ofhas continuing indemnification, guarantee, “earn-out” or holds other contingent payment obligations (other than indemnification or operates, any property owned by any other Person;
(5) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled guarantee obligations contained in commercial Contracts entered into by the Company or any of its Subsidiaries in the Company Subsidiariesordinary course of business consistent with past practice), in each case, that could result in payments in excess of $15,000,000;
(6viii) limiting any Contract not entered into in the ability ordinary course of business between the Company or any of its Subsidiaries, on the Company Subsidiaries to engageone hand, in and any material respect, in Affiliate thereof other than any line Subsidiary of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Personthe Company;
(7ix) any Government Contract that is a settlement, conciliation or similar agreement, the performance of which will involve payment after the First Closing Date of consideration in excess of $100,000;
(8) that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000);
(9) that concerns the sale or acquisition of any material portion of the Company’s business;
(10) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability in excess of $100,000 and which, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice;
(12) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking; and
(13) any other contract, agreement or understanding material to the Company and its Subsidiaries, taken as a whole; or
(x) any Contract with a Top Supplier or Top Customer that by its terms calls for aggregate payment or receipt by the Company and its Subsidiaries under such Contract of more than $15,000,000 over the remaining term of such Contract (including for any capital commitment, loan or expenditure). Each contract of the Company Subsidiaries or their respective operations. Each Contract of a type Previously Disclosed above to this Section 2.2(t) (collectively, the “Material Contracts”), is described in clauses (i) legal, through (x) is referred to herein as a “Company Material Contract.”
(b) (i) Each Company Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, and, to the knowledge of the Company, each other party thereto, and the Company Subsidiaries which are a party to such contract, (ii) is in full force and effect and enforceable in accordance with its terms and (iii) will continue terms, except where the failure to be legal, valid, binding, enforceable, enforceable and in full force and effect effect, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect on identical terms following the consummation Company and to the extent that enforceability may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or similar Laws affecting the enforcement of creditors’ rights generally or by general principles of equity; (ii) the Company and each of its Subsidiaries, and, to the knowledge of the transactions contemplated Company, each other party thereto, has performed all obligations required to be performed by it under each Company Material Contract, except where any noncompliance, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect on the Company; and (iii) there is no default under any Company Material Contract by the Transaction DocumentsCompany or any of its Subsidiaries or, to the knowledge of the 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 default on the part of the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto under any such Company Material Contract, nor has the Company or any of its Subsidiaries received any notice of any such default, event or condition, except where any such default, event or condition, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect on the Company; provided, however, that the foregoing is without limitation to the provisions of subsection (c) of this Section 3.16. The Company has made available to Parent true and complete copies of all Company Material Contracts, including all amendments thereto.
(c) Neither the Company nor any of the its Subsidiaries has received any unresolved written notices seeking (i) to excuse a third party’s non-performance, or delay a third party’s performance, under existing Company SubsidiariesMaterial Contracts due to interruptions caused by COVID-19 (through invocation of force majeure or similar provisions, nor or otherwise) or (ii) to the Company’s Knowledge, modify in any other party thereto is in default under material respect any Material Contract. No benefits under any Company Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and due to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the agreement and no party thereto has repudiated any provision of such contractCOVID-19.
Appears in 2 contracts
Sources: Merger Agreement (Evoqua Water Technologies Corp.), Agreement and Plan of Merger (Xylem Inc.)
Contracts. Except as Previously Disclosed, neither (a) Section 3.13(a) of the Company nor Disclosure Schedule sets forth, as of the date hereof, a true and complete list of each Contract to which the Company or any Company Subsidiary is a party to or which binds or affects their respective properties or assets, and which falls within any contracts or agreementsof the following categories:
(1i) any joint venture, partnership, strategic alliance, limited liability or other similar Contract related to the formation, creation, operation, management or control of any partnership, limited liability company or joint venture in which the Company or any Company Subsidiary owns any interest;
(ii) any agreement that involves future expenditures or receipts by the Company or any Company Subsidiary of more than $3,000,000 in any one year period that cannot be terminated on less than 90 days’ notice without material payment or penalty;
(iii) any Contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Company Subsidiary, or any of their respective affiliates (including the Parent and its affiliates after the Effective Time) to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or businesses;
(iv) any Contract that limits the freedom of the Company or any Company Subsidiary and/or their respective affiliates, and that would bind the Parent or its affiliates after the Effective Time so as to similarly limit its or their freedom, to engage in any line of business, solicit or hire any Person, compete with any Person or purchase, sell, supply or distribute any product, or service or that otherwise has the effect of restricting the Company, its Subsidiaries and their respective affiliates (including Parent and its affiliates after the Effective Time) from the development, manufacture, marketing or distribution of products and services, in each case, in any geographic area;
(v) any (i) Contract that contains any (A) exclusivity rights or (B) “most favored nations” provisions that would reasonably be expected to materially impair the business of the Company or its affiliates after the Closing, including the Parent or its affiliates after the Effective Time, or (ii) supply Contract with respect to air or hotel or payment processing Contract in either case that, to the Knowledge of the Company, contains any minimum use, supply or display requirements, in any such case binding the Company or any Company Subsidiary or any of their respective affiliates (including the Parent and its affiliates after the Effective Time);
(vi) any Contract involving derivative financial instruments or arrangements (including swaps, caps, floors, futures, forward contracts, option agreements) with a notional value in excess of $1,000,000;
(vii) any Contract that obligates the Company or any Company Subsidiary to make any capital investment or capital expenditure outside the ordinary course of business and in excess of $2,000,000;
(viii) any acquisition Contract that contains “earn-out” provisions or other contingent payment obligations that could reasonably be expected to result in future payments by the Company or a Company Subsidiary in excess of $2,000,000;
(ix) any Contract relating to indebtedness for borrowed money, letters Indebtedness in excess of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements $1,000,000;
(including guarantees in x) (a) with respect of to any Person that is one of the foregoingtop 10 customers of the Company’s Orbitz Partner Network business line as measured by total revenue for the fiscal year ending December 31, but 2014, any Contract with such Person related to such business line; (b) with respect to any Person that is one of the top 10 customers of the Company’s Orbitz For Business business line, as measured by total revenue for the fiscal year ending December 31, 2014, any Contract with such Person related to such business line; (c) with respect to any Person that is one of the top 10 vendors of the Company’s air business line, as measured by number of tickets booked in the fiscal year ending December 31, 2014, any event excluding trade payablesContract with such Person related to such business line; (d) with respect to any Person that is one of the top 10 vendors of the Company’s hotel business line, securities transactions as measured by net booking amount (net of cancellations) for check-in dates during the fiscal year ending December 31, 2014, any Contract with such Person related to such business line; or (e) with respect to any Person that is one of the top 10 vendors of the Company’s car business line, as measured by gross bookings in the fiscal year ending December 31, 2014, any Contract with such Person related to such business line;
(xi) any Contract for the provision of global distribution services;
(xii) any lease or sublease with respect to the Leased Real Property;
(xiii) any Contract pursuant to which the Company or any Company Subsidiary licenses (in or out) Intellectual Property that is material to the conduct of the Company’s and brokerage agreements arising the Company Subsidiaries’ business as currently conducted except (A) Contracts for off-the-shelf, shrink-wrap, click through or pre-installed software, hardware or databases licensed to the Company or any Company Subsidiary with annual fees of less than $1,000,000 and (B) standard form licenses granted to customers by the Company or its Subsidiaries in the ordinary course of business consistent with past practice, intercompany indebtedness ; and
(xiv) any settlement agreement or similar Contract imposing material operational restrictions or conduct requirements on the Company or any Company Subsidiary or any of their respective affiliates (including the Parent and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $100,000, except for those issued in its affiliates after the ordinary course of businessEffective Time);
(2xv) that constitutes a collective bargaining or any other arrangement with any labor union;
(3) that is a “material contract” within the meaning of (as such term is defined in Item 601(b)(10) of Regulation S-K;K of the SEC).
(4b) that Each Contract of the type described in this Section 3.13(a) is referred to herein as a “Company Material Contract.” True and complete copies of each Company Material Contract in effect as of the date hereof has been made available to Merger Sub (including pursuant to agreed-upon procedures to protect competitively sensitive information) or publicly filed with the SEC.
(c) Except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect: (i) each Company Material Contract is a lease or agreement under which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person;
(5) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(6) limiting the ability legally valid and enforceable obligation of the Company or any of the Company Subsidiaries to engageSubsidiary party thereto, in any material respectaccordance with its terms, in any line of business or subject to competeapplicable bankruptcy, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(7) that is a settlement, conciliation insolvency or similar agreementLaws affecting creditors’ rights generally and subject, the performance as to enforceability, to general principles of which will involve payment after the First Closing Date of consideration in excess of $100,000;
(8) that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000);
(9) that concerns the sale or acquisition of any material portion of the Company’s business;
(10) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability in excess of $100,000 and which, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice;
(12) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertakingequity; and
(13) any other contract, agreement or understanding material to the Company or any of the Company Subsidiaries or their respective operations. Each Contract of a type Previously Disclosed above to this Section 2.2(t) (collectively, the “Material Contracts”), is (i) legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (ii) each Company Material Contract is in full force and effect and enforceable in accordance with its terms and (iii) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Company’s Knowledge, any other party thereto is in default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each Company none of the Company or any Company Subsidiary or any other parties party thereto, have performed is in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default under any Company Material Contract to which it is a party or permit termination, modification, by which it or acceleration, under the agreement and no party thereto has repudiated any provision of such contractits properties or assets is bound or affected.
Appears in 2 contracts
Sources: Merger Agreement (Expedia, Inc.), Merger Agreement (Orbitz Worldwide, Inc.)
Contracts. Except as Previously Disclosed, neither (a) Section 3.13(a) of the Company nor Disclosure Letter sets forth, as of the date hereof, a true, correct and complete list of each Contract (other than any Company Real Property Lease or Benefit Plan) that is in effect and to which the Company or any Company Subsidiary is a party to or which binds their respective properties or assets, and that falls within any contracts or agreementsof the following categories:
(1i) relating any joint venture, partnership, or strategic alliance Contract with a Third Party member that is material to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any the business of the foregoingCompany and the Company Subsidiaries, but taken as a whole, in which the Company or any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $100,000, except for those issued in the ordinary course of businessCompany Subsidiary owns an Equity Interest;
(2ii) any Contract that constitutes a collective bargaining or other arrangement with any labor union;
(3) that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(4) that is a lease or agreement under which requires aggregate capital expenditures by the Company or any of the Company Subsidiaries is lessee ofin an amount in excess of four million dollars ($4,000,000) per annum individually, other than (A) any purchase order or Contract for supply, inventory or trading stock acquired in the ordinary course of business, or holds or operates(B) any ordinary course Contracts with respect to land acquisitions, any property owned by any other Personland development and construction;
(5iii) any settlement, conciliation or similar Contract (A) with any Governmental Entity, (B) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(6) limiting the ability of requires the Company or any of the Company Subsidiaries to engage, pay any monetary consideration of more than four hundred thousand dollars ($400,000) after the date of this Agreement or (C) that would otherwise limit in any material respect, in any line respect the operation of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(7) that is a settlement, conciliation or similar agreement, the performance of which will involve payment after the First Closing Date of consideration in excess of $100,000;
(8) that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000);
(9) that concerns the sale or acquisition of any material portion of the Company’s business;
(10) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability in excess of $100,000 and which, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice;
(12) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking; and
(13) any other contract, agreement or understanding material to the Company or any of the Company Subsidiaries or their respective operations. Each Contract of a type Previously Disclosed above to this Section 2.2(t) Subsidiary (collectivelyor, the “Material Contracts”), is (i) legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (ii) is in full force and effect and enforceable in accordance with its terms and (iii) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Company’s Knowledge, any other party thereto is in default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each Parent or any of its other affiliates from and after the Closing) as currently operated;
(iv) any Contract that contains any covenant limiting in any material respect the ability of the Company or the Company Subsidiaries to engage in any line of business or compete with any Person, in each case, in any geographic area;
(v) any Contract (A) that relates to any completed acquisition, divestiture, merger or similar transaction and contains representations, covenants, indemnities or other parties theretoobligations that remain in effect (excluding any transactions solely among the Company and any wholly owned Company Subsidiary) and that are material to the business of the Company and the Company Subsidiaries, have performed taken as a whole, (B) for any pending acquisition, directly or indirectly (by merger or otherwise) of a portion of the assets (other than goods, products or services in all the ordinary course of business) or Equity Interests of any Person for aggregate consideration in excess of two million dollars ($2,000,000) pursuant to which the Company or any Company Subsidiary has continuing “earn-out” or other similar contingent payment obligations following the date hereof in excess of two million dollars ($2,000,000) or (C) that gives any Person the right to acquire any assets of the Company or the Company Subsidiaries (excluding ordinary course commitments to purchase homes, lots, goods, products or services) after the date hereof with a total consideration of more than two million dollars ($2,000,000);
(vi) any Contract that is an indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage or other Contract providing for or securing indebtedness for borrowed money or deferred payment (in each case, whether incurred, assumed, guaranteed or secured by any asset) in an outstanding principal amount in excess of one million dollars ($1,000,000), other than any such contract between the Company or any Company Subsidiary, on the one hand, and any other Company Subsidiary, on the other hand;
(vii) any Contract for (A) the sale of any land parcels (whether or not developed) of the Company or a Company Subsidiary with a purchase price in excess of four million dollars ($4,000,000) (other than individual home sales in the ordinary course of business), (B) the purchase of any land parcels (whether or not developed) of the Company or a Company Subsidiary or (C) the option to purchase any land parcels (whether or not developed) of the Company or a Company Subsidiary, in the case of clauses (B) and (C), with a total purchase price for the land parcels subject thereto in excess of eight million dollars ($8,000,000) (other than individual home sales in the ordinary course of business); and
(viii) any material respects all Contract (A) pursuant to which the Company or any Company Subsidiary receives a license to use any material obligations required Intellectual Property that is used in the business (other than licenses for “off-the-shelf” or other software widely available on generally standard terms and conditions) or (B) pursuant to be performed by them under each which the Company or any Company Subsidiary grants to a third party a license to use any material Company Intellectual Property. Each Contract of the type described in this Section 3.13(a) is referred to herein as a “Company Material Contract.” True and complete copies of each Company Material Contract in effect as of the date hereof have been made available to Parent (including pursuant to agreed-upon procedures to protect competitively sensitive information) or publicly filed with the SEC.
(b) Except as would not have and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Company Material Contract is a legal, valid, binding and enforceable obligation of the Company or the Company Subsidiary party thereto and is in full force and effect (except as may be limited by the Enforceability Exceptions) and (ii) none of the Company, any Company Subsidiary or, to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material any counterparty is in breach or default or permit termination, modification, or acceleration, under the agreement and no party thereto has repudiated any provision of such contractCompany Material Contract.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (William Lyon Homes), Merger Agreement (Taylor Morrison Home Corp)
Contracts. Except as Previously Disclosedset forth in the Disclosure Letter, neither the Company nor any Company Subsidiary is of its Subsidiaries has any current or future rights, responsibilities, obligations or liabilities, in each case as of the date of this Agreement, under any of the following (each, a party to any contracts or agreements:“Material Contract”):
(1a) any Contract relating to indebtedness Intellectual Property that is material to the Company and its Subsidiaries, taken as a whole;
(b) any Contract that would be required to be filed or furnished by the Company pursuant to Item 19 and paragraph 4 of the Instructions to Exhibits of Form 20-F under the Exchange Act;
(c) any Contract involving payments by the Company or any of its Subsidiaries in excess of US$7 million in the aggregate under each such Contract;
(d) any Contract, including any distribution agreements, containing covenants directly or explicitly limiting in any material respect the freedom of the Company and its Subsidiaries as a whole to compete in any geographic area, industry or line of business or with any Person or to offer any of its products or services, or any material exclusivity agreement relating to Intellectual Property, business opportunity or any resources or assets of the Company or any of its Subsidiaries;
(e) any indenture, mortgage, promissory note, loan agreement, guaranty or other agreement or commitment for borrowed money, letters the borrowing of credit, capital lease obligations, obligations secured by money or pledging or granting a Lien or security interest rate or currency hedging agreements (including guarantees in respect of any an aggregate amount of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $100,000, except for those issued in the ordinary course of businessUS$5 million or more;
(2f) that constitutes a collective bargaining share or stock redemption or purchase agreements or other arrangement agreements affecting or relating to the share capital of the Company or any of its Subsidiaries, including, without limitation, any agreement with any labor unionshareholder of the Company or any of its Subsidiaries which includes, without limitation, anti-dilution rights, voting arrangements or operating covenants;
(3g) any royalty or dividend arrangement that is a “involves the payment by the Company of more than US$4 million annually based on the revenues or profits of the Company or any of its Subsidiaries or based on the revenues or profits derived from any material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(4h) that is a lease any material acquisition, merger, asset purchase or agreement other similar agreement;
(i) any Contract under which the Company or any of the Company its Subsidiaries is lessee ofhas granted any Person any registration rights, or holds any right of first refusal, first offer or operates, first negotiation with respect to any property owned by Securities or securities of any other PersonSubsidiaries of the Company;
(5j) any Contract relating to the formation, creation, operation, management or control of any partnership, joint venture, limited liability company or similar arrangement; or
(k) any Contract that is contains a lease put, call or agreement under similar right pursuant to which the Company or any of the Company its Subsidiaries is lessor ofcould be required to purchase or sell, or permits any Person to hold or operateas applicable, any property owned or controlled by the Company or equity interests of any Person. Each of the Company Subsidiaries;
(6) limiting the ability of the Company or any of the Company Subsidiaries to engage, in any material respect, in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(7) that Material Contracts is a settlement, conciliation or similar agreement, the performance of which will involve payment after the First Closing Date of consideration in excess of $100,000;
(8) that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000);
(9) that concerns the sale or acquisition of any material portion of the Company’s business;
(10) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability in excess of $100,000 and which, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice;
(12) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking; and
(13) any other contract, agreement or understanding material to the Company or any of the Company Subsidiaries or their respective operations. Each Contract of a type Previously Disclosed above to this Section 2.2(t) (collectively, the “Material Contracts”), is (i) legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (ii) is in full force and effect and effect, is enforceable in accordance with its terms terms, subject to the Bankruptcy and (iii) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated by the Transaction DocumentsEquity Exception. Neither the Company nor any of the Company Subsidiariesits Subsidiaries has violated or breached, nor or committed any default under, any Material Contract, and, to the Company’s Knowledgeknowledge, no other Person has violated or breached, or committed any other party thereto is in default under any Material Contract, except for violations, breaches or defaults which would not, individually or in the aggregate, in each case, reasonably be expected to have a Material Adverse Effect. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of To the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company’s knowledge, no event has occurred occurred, and no circumstance or condition exists, that (with or without notice or lapse of time or both) would constitute reasonably be expected to: (A) result in a material violation or breach or of any of the provisions of any Material Contract, (B) give any Person the right to declare a default or permit terminationexercise any remedy under any Material Contract, modification(C) give any Person the right to accelerate the maturity or performance of any Material Contract or (D) give any Person the right to cancel, terminate or accelerationmodify any Material Contract, under the agreement and no party thereto has repudiated any provision of such contractexcept, in each case, as would not reasonably be expected to have a Material Adverse Effect.
Appears in 2 contracts
Sources: Investment Agreement (Alibaba Group Holding LTD), Investment Agreement (Ali YK Investment Holding LTD)
Contracts. Except as Previously DisclosedThe Company has provided to each Investor that has made a request (including via access in any virtual data room) or such Investor’s representatives true, neither correct and complete copies of each of the following to which the Company nor or any Company Subsidiary is a party to any contracts or agreements:party, each of which has been Previously Disclosed (each, a “Material Contract”):
(1i) any contract or agreement relating to indebtedness of the Company or any Company Subsidiary for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course Ordinary Course of business consistent with past practiceBusiness, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $100,000300,000, except for those issued in the ordinary course Ordinary Course of businessBusiness;
(2ii) that constitutes a collective bargaining or other arrangement with any labor union;
(3) that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(4) that is a lease contract or agreement under which the Company or limiting, in any of the Company Subsidiaries is lessee ofmaterial respect, or holds or operates, any property owned by any other Person;
(5) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(6) limiting the ability of the Company or any of the Company Subsidiaries to engage, in any material respect, engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(7iii) that is a settlement, conciliation any contract or similar agreement, the performance of which will involve payment after the First Closing Date of consideration in excess of $100,000;
(8) that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000);
(9) agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(10iv) that concerns a any alliance, cooperation, joint venture, shareholders, partnership or joint venturesimilar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(11v) any contract or agreement involving aggregate consideration liability annual payments in excess of $100,000 and which, in each case, 300,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty or without on not more than 90 60 days’ notice;
(12vi) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking; and;
(13vii) any other contractcontract or agreement with respect to the employment or service of any current or former directors, agreement officers, employees or understanding material to consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the Ordinary Course of Business; and
(viii) any contract or their respective operationsagreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business. Each Material Contract of a type Previously Disclosed above to this Section 2.2(t(A) (collectively, the “Material Contracts”), is (i) legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (iiB) is in full force and effect and enforceable in accordance with its terms and (iiiC) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms in all material respects following the consummation of the transactions contemplated by the Transaction Documentsthis Agreement. Neither the Company nor any of the Company Subsidiaries, nor to the Knowledge of the Company’s Knowledge, any other party thereto is in material violation or default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documentsthis Agreement, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documentsthis Agreement. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the agreement and no party thereto has repudiated any provision of such contractMaterial Contracts.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Professional Holding Corp.), Stock Purchase Agreement (Professional Holding Corp.)
Contracts. Except as Previously Disclosed, neither the Company nor any Company Subsidiary is a party to any contracts or agreements:
(1) relating to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any Part 3.10 of the foregoingDisclosure Schedule sets forth a complete and correct list of each of the following contracts, but in any event excluding trade payablesagreements, securities transactions leases, licenses and brokerage agreements arising in obligations related to the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $100,000, except for those issued in the ordinary course of business;
(2) that constitutes a collective bargaining or other arrangement with any labor union;
(3) that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(4) that is a lease or agreement under Business to which the Company or any of the Company Subsidiaries Shareholders is lessee ofa party or bound (the “Contracts”). The Contracts are valid, binding and enforceable in accordance with their respective terms, and are in full force and effect. There are no existing material defaults thereunder and no event of default has occurred which (whether with or holds without notice, lapse of time or operates, any property owned by any other Person;both) would constitute a material default thereunder:
(5a) Contracts concerning confidentiality (other than typical confidentiality provisions contained in Contracts entered into in the ordinary course of business) or that is a lease purport to limit, curtail or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(6) limiting restrict the ability of the Company or any of the Company Subsidiaries its future subsidiaries or Affiliates to engage, conduct business in any material respect, in any geographic area or line of business or to compete, whether by restricting territories, customers restrict the Persons with whom the Company or otherwise, any of its future subsidiaries or in any other material respect, with any PersonAffiliates may do business;
(7b) that is a settlementContracts with any employee, conciliation consultant or similar agreementother independent contractor (including contracts with or “leases” from any truck owner-operator), and any offer letters for employment with the performance Company outstanding, including but not limited to any Contracts providing for any commission based compensation, profit sharing, severance payments or benefits, relocation payments or benefits, bonuses, change in control payments or benefits, and the details of which will involve payment after the First Closing Date of consideration in excess of $100,000any such compensation agreement or arrangement;
(8) that relates to Intellectual Property Rights c) Contracts with any labor union or other representative of employees (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000including any collective bargaining agreement);
(9d) that concerns Contracts with any employee leasing or temporary staffing agencies for the sale or acquisition engagement of any material portion leased employees or independent contractors;
(e) Contracts with any present or former officer, director or stockholder of the Company’s business;
(10) that concerns a partnership , or joint venture;
(11) involving aggregate consideration liability in excess any Affiliate of $100,000 and whichsuch officer, director or stockholder, including any agreement providing for the employment of, furnishing of services by, rental of assets from or to, or otherwise requiring payments to, any such officer, director, stockholder or Affiliate, in each case, cannot be cancelled by other than (A) advances or reimbursements for travel and entertainment expenses, (B) employee confidentiality and non-disclosure agreements on the Company’s standard form, and (C) employee benefits generally available to employees.
(f) Contracts under which the Company without penalty has advanced or without more than 90 days’ noticeloaned any amount to any of its employees or Affiliates of the Company and which has not been repaid in full prior to the date of this Purchase Agreement;
(12g) that concerns Contracts granting any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking; and
(13) any other contract, agreement or understanding material power of attorney with respect to the affairs of the Company or any of otherwise conferring agency or other power or authority to bind the Company Subsidiaries Company;
(h) partnership or their respective operations. Each Contract of a type Previously Disclosed above to this Section 2.2(t) (collectively, the “Material Contracts”), is joint venture agreements;
(i) legalContracts for the acquisition, valid and binding on the Company and the Company Subsidiaries which are a party to such contractsale or lease of material properties or material assets (by merger, purchase or sale of stock or assets or otherwise);
(iij) is in full force and effect and enforceable in accordance Contracts with its terms and (iii) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Company’s Knowledge, any other party thereto is in default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the agreement and no party thereto has repudiated any provision of such contract.Governmental Body;
Appears in 2 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (Heckmann CORP)
Contracts. Except as Previously Disclosed, neither (a) The Company has Made Available to AcquisitionCo a correct and complete copy of each of the following written contracts to which the Company nor or any Company Subsidiary of its Subsidiaries is a party to party, or by which the Company or any contracts or agreementsof its Subsidiaries is bound, that are in effect as of the date hereof:
(1i) relating any contract (or group of related contracts) involving the performance of services or the purchase of goods, materials or other assets by or to the Company or any of its Subsidiaries, the performance of which will involve (A) annual payments to or from the Company or any of its Subsidiaries of $50,000 or more, or (B) aggregate payments (including termination penalties) to or from the Company or any of its Subsidiaries of $100,000 or more;
(ii) any contract concerning a partnership or joint venture;
(iii) any contract (or group of related contracts) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, letters or any capitalized lease obligation, in excess of credit$100,000;
(iv) any contract concerning noncompetition that limits or otherwise restricts the Company or any of its Subsidiaries or that would, capital lease obligationsafter the Effective Time, obligations secured by a Lien limit or interest rate restrict Parent, AcquisitionCo, the Surviving Corporation or currency hedging agreements any of their respective Affiliates, from engaging or competing in any line of business or in any geographic area, including any contract containing any “radius clause” applicable to markets in which the Company or any of its Subsidiaries has operations;
(including guarantees in respect v) any contract relating to collective bargaining or employee association;
(vi) any contract for the employment of any individual on a full-time, part-time, consulting, or other basis who is an officer or director of the foregoingCompany or any of its Subsidiaries that provides for annual compensation in excess of $100,000;
(vii) any contract under which the consequences of a default or termination would reasonably be expected to have a Material Adverse Effect;
(viii) any contract providing for the sale or exchange of, but in or option to sell or exchange, any event excluding trade payablesmaterial Company Property, securities transactions and brokerage agreements arising in or for the ordinary course purchase or exchange of, or option to purchase or exchange, any real estate;
(ix) any contract for the acquisition or disposition, directly or indirectly (by merger or otherwise), of business consistent with past practice, intercompany indebtedness and immaterial leases assets or Equity Interests of another person for telephones, copy machines, facsimile machines and other office equipment) aggregate consideration in excess of $100,000, except for those issued in each case other than in the ordinary course of business;
(2x) that constitutes a collective bargaining any license, royalty or other arrangement with contract concerning Intellectual Property (other than shrink-wrap software and databases licensed to the Company or any labor union;of its Subsidiaries under nonexclusive software licenses granted to end-user customers by third parties in the ordinary course of business of such third parties’ businesses), such Company Disclosure Letter indicating, in the case of any such license, whether the Company or any of its Subsidiaries is the licensee or licensor; and
(3xi) that is a “material contract” within each written amendment, supplement and modification in respect of any of the meaning of Item 601(b)(10foregoing.
(b) Except as set forth in Section 4.14(b) of Regulation S-K;
(4) that is a lease or agreement under the Company Disclosure Letter, with respect to each such contract to which the Company or any of the Company its Subsidiaries is lessee ofa party, or holds or operates, any property owned by any other Person;
(5) that is a lease or agreement under which the Company or any of its Subsidiaries is bound, of a type described in Section 4.14(a) and in effect as of the date hereof: (i) the contract is legal, valid, binding, and enforceable against the Company Subsidiaries is lessor ofand/or certain of its Subsidiaries, or permits any Person as applicable, and, to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(6) limiting the ability of the Company or any of the Company Subsidiaries to engage, in any material respect, in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(7) that is a settlement, conciliation or similar agreement, the performance of which will involve payment after the First Closing Date of consideration in excess of $100,000;
(8) that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000);
(9) that concerns the sale or acquisition of any material portion of the Company’s business;
(10) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability in excess of $100,000 and which, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice;
(12) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking; and
(13) any other contract, agreement or understanding material to the Company or any of the Company Subsidiaries or their respective operations. Each Contract of a type Previously Disclosed above to this Section 2.2(t) (collectivelyknowledge, the “Material Contracts”)other party thereto, is (i) legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (ii) is in full force and effect and enforceable effect; (ii) except for any such contract that expires in accordance with its terms and (iii) terms, the contract will continue to be legal, valid, bindingbinding and enforceable against the Surviving Corporation and/or certain of its Subsidiaries, enforceableas applicable, and, to the Company’s knowledge, the other party thereto, and in full force and effect on identical terms following the consummation of the transactions contemplated by the Transaction Documents. Neither Effective Time; (iii) neither the Company nor any of the Company its Subsidiaries, nor to the Company’s Knowledgeas applicable, any other party thereto is in default under any Material Contract. No benefits under any Material Contract will be increasedmaterial breach or default, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse the passage of time or giving of notice would constitute a material breach or default by the Company or any of its Subsidiaries, or permit termination, modification, termination or accelerationacceleration by the other party, under the agreement contract; and (iv) to the Company’s knowledge, no other party to the contract is in material breach or default, and no party thereto event has repudiated any provision occurred that with the passage of time or giving of notice would constitute a material breach or default by such other party, or permit termination or acceleration by the Company or its Subsidiary, under the contract.
Appears in 2 contracts
Sources: Merger Agreement (Sl Industries Inc), Merger Agreement (Handy & Harman Ltd.)
Contracts. Except as Previously Disclosed, neither (a) Section 3.8(a) of the Company nor Disclosure Schedule sets forth a list of each of the following contracts that are in force and effect as of the date of this Agreement to which the Company or any Company Subsidiary of its Subsidiaries is a party to any contracts or agreementsparty:
(1i) relating each contract that would be required to be filed as an exhibit to a Registration Statement on Form S-1 under the Securities Act or an Annual Report on Form 10-K under the Exchange Act (if such registration statement or report was filed by the Company with the SEC on the date of this Agreement);
(ii) each contract that restricts in any material respect the ability of the Company or any of its Subsidiaries to compete in any geographic area or line of business or to make use of any material IP Rights, develop market or distribute material products or services or compete with any Person;
(iii) each contract granting any exclusive rights or otherwise limiting the right of the Company or any of its Subsidiaries to sell, distribute or manufacture any material products or services or to purchase or otherwise obtain any material Software, components, parts, subassemblies or services;
(iv) each indemnification, employment, severance or change of control contract with any director or officer of the Company or its Subsidiaries or with any employee or consultant of the Company or its Subsidiaries providing for an annual base salary or annual consulting fee to such employee or consultant of $300,000 or more in fiscal year 2007 (other than offer letters with employees providing for at-will employment);
(v) each collective bargaining agreement, memorandum of understanding, settlement or other labor agreement with any union or labor organization applicable to the Company or its Subsidiaries;
(vi) each loan or credit agreement, mortgage, note or other contract evidencing indebtedness for money borrowed by the Company or any of its Subsidiaries from a third party lender and each contract pursuant to which any such indebtedness for borrowed money, letters money is guaranteed by the Company or any of credit, capital lease obligations, obligations secured by a Lien its Subsidiaries;
(vii) each customer or interest rate supply contract (excluding purchase orders given or currency hedging agreements received in the ordinary course of business) under which the Company or any Subsidiary of the Company paid to or received from such customer or supplier in excess of $2,000,000 in fiscal year 2006;
(including guarantees in respect of viii) each material contract to license to any third party to manufacture or reproduce any of the foregoingproducts, but services or technology of the Company or any of its Subsidiaries or any material contract to sell or distribute any of the products, services or technology of the Company or any of its Subsidiaries;
(ix) each operating system software license or other contract with the top two providers (as measured by fees paid under such contracts) in fiscal 2006 pursuant to which the Company licenses operating system software for use in its end-user products;
(x) each contract with the top two providers (as measured by fees paid under such contracts) in fiscal 2006 pursuant to which the Company purchases microprocessors;
(xi) each contract with the top five third-party manufacturers (as measured by fees paid under such contracts) in fiscal 2006 pursuant to which such Company products (or subassemblies thereof) are manufactured;
(xii) each material contract containing any support, service or maintenance obligation on the part of the Company or any of its Subsidiaries outside of the ordinary course of business consistent with past practice;
(xiii) each Real Property Lease;
(xiv) each lease or rental contract involving personal property (and not relating primarily to real property) pursuant to which the Company or any of its Subsidiaries is required to make rental payments in excess of $250,000 per year;
(xv) each contract relating to a joint venture, partnership or other strategic arrangement involving a sharing of material costs, profits or losses with another Person;
(xvi) each contract which would reasonably be expected to prohibit or delay the consummation of any material transaction contemplated in this Agreement;
(xvii) each material agreement that includes the grant to the Company or any of its Subsidiaries of a license or cross-license to material IP Rights owned by a third party and that is not a standard license agreement for a commercially available product;
(xviii) any material agreement pursuant to which the Company or any of its Subsidiaries have continuing obligations to jointly develop any material item of IP Right;
(xix) each material contract to provide source code to any third party for any material product or technology of the Company or its Subsidiaries;
(xx) each material contract for indemnification or any guaranty by the Company or any of its Subsidiaries other than any agreement of indemnification entered into in connection with the sale or license of the Company’s or any of its Subsidiaries’ products in the ordinary course of business;
(xxi) each contract relating to the disposition or acquisition by the Company or any of its Subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business, or pursuant to which the Company or any of its Subsidiaries has any material ownership interest or a right to any ownership interest, in any event excluding trade payablesother Person or other business enterprise other than the Company’s Subsidiaries;
(xxii) each material contract which grant or benefit a right of first refusal or first offer or similar rights;
(xxiii) each agreement, securities transactions and brokerage agreements arising contract or commitment pursuant to which the Company or any of its Subsidiaries is obligated to pay in the future in excess of $1,000,000 in any one-year period which is not terminable by the Company or its Subsidiaries without penalty in excess of $100,000 upon notice of 30 days or less, other than any agreement, contract or commitment to purchase inventory in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $100,000, except for those issued in the ordinary course of business;
(2xxiv) that constitutes a collective bargaining each material “single source” supply contract pursuant to which goods or other arrangement with any labor union;
(3) that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(4) that is a lease or agreement under which materials are supplied to the Company or any Subsidiary of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Personfrom an exclusive source;
(5xxv) each material contract which following the Offer or the Merger that is would by its terms contain a lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(6) limiting the ability of the Company or any of the Company Subsidiaries to engage, material restriction on sales in any material respect, in any line of business jurisdiction or to compete, whether which by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(7) that is a settlement, conciliation or similar agreement, the performance of which will involve payment after the First Closing Date of consideration in excess of $100,000;
(8) that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard its terms with a total replacement cost of less than $100,000);
(9) that concerns the sale or acquisition of would impose any material portion of the Company’s business;
(10) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability in excess of $100,000 and whichfinancial obligation, in each case, cannot be cancelled by on the Parent or its Affiliates (other than the Company without penalty or without more than 90 days’ noticeand its Subsidiaries);
(12xxvi) that concerns any each material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertakingexecutory settlement agreement entered into within three years prior to the date of this Agreement; and
(13xxvii) any other contract, agreement or understanding group of contracts with a Person (or group of affiliated Persons), not described in clauses (i) through (xxvi) above the termination or breach of which would be reasonably expected to have a material to adverse effect on any material product or service offerings of the Company or any its Subsidiaries or otherwise have a Company Material Adverse Effect.
(b) Each contract listed in Section 3.8(a) of the Company Subsidiaries or their respective operationsDisclosure Schedule is referred to as a “Material Contract”. Each Contract of a type Previously Disclosed above to this Section 2.2(t) (collectively, the “Material Contracts”), Contracts is (i) legal, valid and binding on the Company and or the Company Subsidiaries which are a party to such contract, (ii) is in full force and effect and enforceable in accordance with its terms and (iii) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any Subsidiary of the Company Subsidiaries, nor to the Company’s Knowledge, any other that is a party thereto is in default under any Material Contract. No benefits under any Material Contract will be increasedand, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each other party thereto, and is in full force and effect.
(c) There is no existing breach or default on the part of the other parties theretoCompany or any of its Subsidiaries under any Material Contract except for breaches and defaults that do not constitute a Company Material Adverse Effect and, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, there is no existing breach or default on the part of any other Person under any Material Contract except for breaches and defaults that do not constitute a Company Material Adverse Effect. No event has occurred that that, with notice or lapse of time time, would constitute a material breach or default by the Company or any of its Subsidiaries, or permit termination, modification, material modification or acceleration, under the agreement any Material Contract, except for breaches and no party thereto defaults that do not constitute a Company Material Adverse Effect.
(d) The Company has repudiated any provision made available to Parent correct and complete copies of such contracteach Material Contract, together with all amendments and supplements thereto.
Appears in 2 contracts
Sources: Merger Agreement (Acer Inc), Merger Agreement (Gateway Inc)
Contracts. (a) Except as Previously Disclosedfiled as an exhibit to a Company SEC Document prior to the date of this Agreement, and except for the Company Benefit Plans, neither the Company nor any Company Subsidiary is a party to or bound by, nor are any contracts of their respective assets, businesses or agreementsoperations party to, or bound or affected by, or receive benefits under:
(1i) any agreement relating to indebtedness for borrowed money(other than agreements among direct or indirect wholly-owned Company Subsidiaries) in excess of $5 million;
(ii) any joint venture, letters partnership, limited liability company or other similar agreements or arrangements relating to the formation, creation, operation, management or control of creditany partnership, capital lease obligationsstrategic alliance or joint venture;
(iii) any agreement or series of related agreements, obligations secured including any option agreement, relating to the acquisition or disposition of any material business or material real property (whether by a Lien merger, sale of stock, sale of assets or interest rate or currency hedging agreements otherwise);
(iv) any agreement (including guarantees any exclusivity agreement) that purports to limit or restrict in any material respect either the type of business in which the Company or any Company Subsidiary (or, after the Effective Time, the Surviving Corporation or its Subsidiaries) may engage or the manner or locations in which any of them may so engage in any business including any covenant not to compete or could require the disposition of any material assets or line of business of the foregoing, but Company or any Company Subsidiary;
(v) any agreement providing for the production by the Company or any Company Subsidiary of any product on an exclusive or requirements basis or the purchase by the Company or any Company Subsidiary of any product on an exclusive or output basis;
(vi) any other agreement or amendment thereto that would be required to be filed as an exhibit to any Company SEC Document (as described in Items 601(b)(4) and 601(b)(10) of Regulation S—K under the Securities Act) that has not been filed as an exhibit to or incorporated by reference in the Company SEC Documents filed prior to the date of this Agreement;
(vii) any event excluding trade payables, securities transactions and brokerage agreements arising agreement that involves expenditures or receipts of the Company or any Company Subsidiary in excess of $5 million per year not entered into in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $100,000, except for those issued in the ordinary course of business;
(2viii) that constitutes a collective bargaining or other arrangement with any labor union;
(3) that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(4) that is a lease or agreement under by which the Company or any Company Subsidiary licenses or otherwise obtains the right to use material Intellectual Property rights of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person;
Person (5other than licenses for readily available commercial software) that is a lease or agreement under by which the Company or any Company Subsidiary is restricted in its right to use or register, or licenses or otherwise permits any other Person to use, enforce, or register any material Company Owned Intellectual Property; or
(ix) any agreement the termination or breach of which or the failure to obtain consent in respect of would reasonably be expected to result in a Material Adverse Effect on the Company.
(b) The agreements, commitments, arrangements and plans, whether written or oral, listed or required to be listed in Section 3.18(a) of the Company Subsidiaries Disclosure Letter are referred to herein as the “Company Contracts.” Each Company Contract is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(6) limiting the ability a valid and binding agreement of the Company or any of a Company Subsidiary, as the Company Subsidiaries to engagecase may be, in any material respect, in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(7) that is a settlement, conciliation or similar agreement, the performance of which will involve payment after the First Closing Date of consideration in excess of $100,000;
(8) that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000);
(9) that concerns the sale or acquisition of any material portion of the Company’s business;
(10) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability in excess of $100,000 and which, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice;
(12) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking; and
(13) any other contract, agreement or understanding material to the Company or any of the Company Subsidiaries or their respective operations. Each Contract of a type Previously Disclosed above to this Section 2.2(t) (collectively, the “Material Contracts”), is (i) legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (ii) is in full force and effect and enforceable in accordance with its terms and (iii) will continue to be legal, valid, binding, enforceableeffect, and in full force and effect on identical terms following the consummation none of the transactions contemplated by Company, any Company Subsidiary or, to the Transaction Documents. Neither the Company nor any knowledge of the Company Subsidiaries, nor to the Company’s Knowledge, any other party thereto is in default or breach in any material respect under the terms of any Material such Company Contract. No benefits under any Material Contract will be increased, ; and no vesting event has occurred, which, after the giving of any benefits under any Material Contract will be acceleratednotice, with lapse of time, or otherwise, would constitute a material default by the occurrence of Company or any of the transactions contemplated by the Transaction DocumentsCompany Subsidiary or, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge knowledge of the Company, any other party under such Company Contract. True, correct and complete copies of each of the other parties thereto, such Company Contract (including all modifications and amendments thereto and waivers thereunder) have performed in all material respects all material obligations required been made available to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the agreement and no party thereto has repudiated any provision of such contractParent.
Appears in 2 contracts
Sources: Merger Agreement (CF Industries Holdings, Inc.), Merger Agreement (CF Industries Holdings, Inc.)
Contracts. Except as Previously DisclosedAs of the date of this Agreement, neither the Company nor any Company Subsidiary of its Subsidiaries is a party to any contracts or agreementsto:
(1i) relating any Contract that would be required to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured be filed by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $100,000, except for those issued in the ordinary course of business;
(2) that constitutes a collective bargaining or other arrangement with any labor union;
(3) that is Company as a “material contract” within the meaning of pursuant to Item 601(b)(10) of Regulation S-KK under the Securities Act;
(4ii) any Contract that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person;
(5A) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(6) limiting restricts the ability of the Company or any of its Subsidiaries (or, after the Company Subsidiaries to engageClosing, would restrict Parent, TopCo or any of their respective Subsidiaries) in any material respect, in any line of business or respect to compete, whether by restricting territories, customers or otherwise, or in compete with any other person or acquire or dispose of the securities of another person and (B) is material respectto the Company and its Subsidiaries, with any Persontaken as a whole;
(7iii) any loan, mortgage, note, debenture, bond, indenture or other similar Contract pursuant to which any Indebtedness of the Company or any of its Subsidiaries, in each case in excess of $500.0 million, is outstanding or may be incurred, other than any such Contract solely between or among any of the Company and any of its Subsidiaries;
(iv) any Contract that is a settlementrelated to the governance or operation of any joint venture, conciliation partnership or similar agreementarrangement, other than such Contract solely between or among any of the performance Company and any of which will involve payment its Subsidiaries;
(v) any Contract expressly limiting or restricting the ability of the Company or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests or other equity interests, as the case may be;
(vi) any Contract that by its terms calls for aggregate payments by the Company or any of its Subsidiaries of more than $500.0 million in any fiscal year period or $1.0 billion in the aggregate over the term of such Contract, except for any such Contract that may be canceled by the Company, without any material penalty or other liability to the Company or any of its Subsidiaries, upon notice of 180 days or less;
(vii) any Contract that involves, or is reasonably expected in the future to involve, annual revenues of $500.0 million in the aggregate;
(viii) any material Contract, other than Contracts for transportation services to be provided for FERC-regulated Natural Gas Act or Interstate Commerce Act transportation services pursuant to an open season, that contains a “most favored nation” or any similar term for the benefit of a third party that restricts the business of the Company (or would, after the First Closing Date Closing, restrict the business of consideration Parent, TopCo or any of their respective Subsidiaries) in a material manner;
(ix) any collective bargaining agreement;
(x) any Contract under which the Company or any of its Subsidiaries has advanced or loaned any amount of money to any of its current or former directors, officers, employees or consultants, in each case with a principal amount in excess of $100,000;
(8) xi) any material Contract that relates to Intellectual Property Rights includes any Affiliate of the Company (other than a license granted to Subsidiary of the Company for commercially available software licensed on standard terms with Company) as a total replacement cost of less than $100,000)counterparty or third party beneficiary;
(9xii) that concerns the sale any Contract to acquire all or acquisition of any material a portion of the Company’s capital stock, business;
, property or assets of any other person for an amount of cash (10or value of non-cash consideration) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability in excess of $100,000 and which, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice500.0 million;
(12xiii) that concerns any material hedge, collar, option, forward purchasing, swap, derivative Contract in favor of directors or similar agreement, understanding executive officers relating to employment or undertakingcompensation or providing rights to indemnification; andor
(13xiv) any other contract, agreement Contract the loss or understanding material breach of which would reasonably be expected to the have a Company Material Adverse Effect. Each such Contract described in clauses (i) through (xiv) above is referred to herein as a “Company Specified Contract”. The Company has delivered or any made available to Parent true and complete copies of all Company Specified Contracts. Each of the Company Subsidiaries or their respective operations. Each Contract of a type Previously Disclosed above to this Section 2.2(t) (collectively, the “Material Contracts”), Specified Contracts is (i) legal, valid and binding on the Company and or the Company Subsidiaries which are a party to such contract, (ii) is in full force and effect and enforceable in accordance with its terms and (iii) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any Subsidiary of the Company Subsidiaries, nor to the Company’s Knowledge, any other party thereto is in default under any Material Contract. No benefits under any Material Contract will be increasedand, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties party thereto, have performed and is in all material respects all material obligations required full force and effect, except for such failures to be performed 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 Company Specified Contract by them under each Material Contractthe Company or any of its Subsidiaries or, and to the Knowledge of the Company, no event has occurred by any other party thereto, in each case except for such defaults that with notice have not had and would not reasonably be expected to have, individually or lapse of time would constitute in the aggregate, a material breach or default or permit termination, modification, or acceleration, under the agreement and no party thereto has repudiated any provision of such contractCompany Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Williams Companies Inc), Merger Agreement (Williams Companies Inc)
Contracts. Except as The Company has Previously DisclosedDisclosed or provided (by hard copy, neither electronic data room or otherwise) to the Investor or its representatives true, correct and complete copies of each of the following to which the Company nor or any Company Subsidiary is a party to any contracts or agreements:(each, a “Material Contract”):
(1i) any contract or agreement relating to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business consistent with past practicebusiness, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $100,000250,000, except for those issued in the ordinary course of business;
(2ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(3iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(4iv) that is a any lease or agreement under which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other PersonPerson with annual rent payments in excess of $250,000;
(5v) that is a any lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(6vi) limiting any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to engage, in any material respect, engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(7vii) that is a any settlement, conciliation or similar agreement, the performance of which will involve payment after the First Closing Date of consideration in excess of $100,000250,000;
(8) viii) any contract or agreement that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000250,000);
(9ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(10x) that concerns a any alliance, cooperation, joint venture, shareholders, partnership or joint venturesimilar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(11xi) any contract or agreement involving aggregate consideration liability annual payments in excess of $100,000 and which, in each case, 250,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty or without more than 90 days’ notice;
(12xii) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking; and;
(13xiii) any other contractcontract or agreement with respect to the employment or service of any current or former directors, agreement officers, employees or understanding material to consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of business;
(xiv) any contract or their respective operationsagreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract of a type Previously Disclosed above to this Section 2.2(t(A) (collectively, the “Material Contracts”), is (i) legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (iiB) is in full force and effect and enforceable in accordance with its terms and (iiiC) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms in all material respects following the consummation of the transactions contemplated by the Transaction Documents, except in the cases of (B) and (C) as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights in general. Neither the Company nor any of the Company Subsidiaries, nor to the Knowledge of the Company’s Knowledge, any other party thereto is in material violation or default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the agreement and no party thereto has repudiated any provision of such contractMaterial Contracts.
Appears in 2 contracts
Sources: Investment Agreement (FNB United Corp.), Investment Agreement (FNB United Corp.)
Contracts. Except (a) Section 6.13 (a) of the Parent Disclosure Letter lists the following Contracts to which Parent or any of its Subsidiaries is a party that are in effect as Previously Disclosed, neither of the Company nor date hereof:
(i) each “material contract” (as such term is defined in Item 10.C and in Instructions As To Exhibits of Form 20-F) to which Parent or any Company Subsidiary of its Subsidiaries is a party to any contracts or agreements:bound;
(1ii) relating each Contract not contemplated by this Agreement that materially limits the ability of Parent or any of its Subsidiaries to indebtedness engage in its business or compete in any manner;
(iii) each Contract that creates a partnership, joint venture or any strategic alliance with respect to Parent or any of its Subsidiaries, other than the organizational documents of Parent or its Subsidiaries;
(iv) each employment, consulting, services or similar Contract with any employee, consultant or independent contractor of Parent or any of its Subsidiaries;
(v) each indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage or other evidence of Indebtedness or Contract providing for borrowed moneyIndebtedness in excess of $1,000,000;
(vi) each Contract that relates to the acquisition or disposition, letters directly or indirectly, of creditany material business (whether by merger, capital lease obligationssale of stock, obligations secured sale of assets or otherwise) or material asset, including any vessel, other than this Agreement;
(vii) each Contract that relates to the acquisition or disposition, directly or indirectly (whether by a Lien or interest rate or currency hedging agreements merger, sale of stock, sale of assets (including guarantees any Parent Vessel) or otherwise), by Parent or any of its Subsidiaries after the date of this Agreement of assets or any material business for consideration with a fair market value in excess of $1,000,000;
(viii) any Contract related to the acquisition or disposition, directly or indirectly (by merger, sale of stock, sale of assets or otherwise), by Parent or any of its Subsidiaries prior to the date of this Agreement that includes provisions that are in effect in respect of “earn-outs” or deferred or contingent consideration;
(ix) each ship-sales, memorandum of agreement, bareboat charter or other vessel acquisition Contract for Newbuildings and secondhand vessels contracted for by Parent or any of its Subsidiaries and other Contracts with respect to Newbuildings and the foregoingfinancing thereof, but in including performance guarantees, counter guarantees, refund guarantees, material supervision agreements and material plan verification services agreements;
(x) each operating agreement, management agreement, crewing agreement, Contract of affreightment or financial lease (including sale/leaseback or similar arrangements) with respect to any event excluding trade payablesParent Vessel;
(xi) any Contract with a Third Party for the charter of any Parent Vessel, securities transactions and brokerage agreements arising other than any (A) voyage charter or (B) time charter with a duration of 12 months or less;
(xii) each collective bargaining agreement or other Contract with a labor union to which Parent or any of its Subsidiaries is a party or otherwise bound;
(xiii) each Contract that provides for indemnification by Parent or any of its Subsidiaries to any Person other than a Contract entered into in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $100,000, except for those issued in the ordinary course of business;
(2) that constitutes a collective bargaining or other arrangement with any labor union;
(3) that is a “not material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(4) that is a lease or agreement under which the Company or to any of the Company Subsidiaries is lessee of, Parent or holds or operates, any property owned by any other Person;
(5) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company its Subsidiaries;
(6xiv) limiting the ability of the Company each Contract to which Parent or any of the Company its Subsidiaries to engage, in any material respect, in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(7) that is a settlement, conciliation party or otherwise bound that contains a so-called “most favored nations” provision or similar agreement, the performance of which will involve payment after the First Closing Date of consideration in excess of $100,000;
(8) provisions requiring Parent or its Affiliates to offer to a Person any terms or conditions that relates are at least as favorable as those offered to Intellectual Property Rights (one or more other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000);
(9) that concerns the sale or acquisition of any material portion of the Company’s business;
(10) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability in excess of $100,000 and which, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice;
(12) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertakingPersons; and
(13xv) any other contract, agreement each Contract involving a standstill or understanding material to the Company similar obligation of Parent or any of its Subsidiaries.
(b) Parent has heretofore made available to the Company Subsidiaries Oceanbulk Companies true and complete copies of the Parent Material Contracts as in effect as of the date hereof. Except for breaches, violations or their respective operations. Each Contract of defaults which would have a type Previously Disclosed above to this Section 2.2(t) (collectivelyParent Material Adverse Effect, the “Material Contracts”), is (i) legal, valid and binding on each of the Company and the Company Subsidiaries which are a party to such contract, (ii) Parent Material Contracts is in full force and effect and enforceable in accordance with its terms and (iii) will continue to be legal, valid, binding, enforceable, enforceable and in full force and effect on identical terms following with respect to Parent and its Subsidiaries and, to the consummation Knowledge of Parent, the transactions contemplated other parties thereto, except to the extent that the enforceability thereof may be limited by the Transaction Documents. Neither Equitable Exceptions and except for any Parent Material Contracts that have expired or been terminated after the Company nor any date hereof in accordance with its terms, and none of the Company Parent, its Subsidiaries, nor to the Company’s Knowledge, Knowledge of Parent any other party thereto is in default under any Material Contract. No benefits under any to a Parent Material Contract will be increasedhas violated any provision of, and no vesting or taken or failed to take any act which, with or without notice, lapse of time, or both, would constitute a breach or default under, or give rise to any benefits under any Material Contract will be acceleratedright of cancellation or termination of or consent under, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each such Parent Material Contract, and to the Knowledge (ii) none of the CompanyParent or its Subsidiaries has received written notice that it has breached, no event has occurred that with notice violated or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, defaulted under the agreement and no party thereto has repudiated any provision of such contractParent Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Oaktree Capital Management Lp), Merger Agreement (Star Bulk Carriers Corp.)
Contracts. Except as Previously DisclosedSet forth in Sections 2.13, neither 2.14, 2.15 and 2.16 of the Company nor Disclosure Letter are the following contracts to which the Company or any Company Subsidiary of its subsidiaries is a party or by which any of them is bound (collectively, together with all contracts referred to in Sections 2.16, 2.20(c), 2.25 and 2.28, the (“Company Material Contracts”) (i) contracts between any current officer, director or stockholder of the Company or any Affiliate thereof on the one hand, and the Company or any subsidiary thereof on the other hand; (ii) contracts under which any employee of the Company or agreements:
(1) relating any of its subsidiaries is entitled to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements receive annual payments (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions salary and brokerage agreements arising in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipmentbonuses) in excess of $100,000, except for those issued in the ordinary course of business;
; (2iii) contracts that constitutes a collective bargaining or other arrangement with any labor union;
(3) that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(4) that is a lease or agreement under which restrict the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person;
(5) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(6) limiting the ability of the Company or any of the Company Subsidiaries to engage, in any material respect, its subsidiaries from competing in any line of business or to compete, whether by restricting territories, customers or otherwise, or with any person in any geographical area; (iv) contracts entitling any person to change in control or other material respectseverance payments; (v) indentures, with credit agreements, security agreements, mortgages, guarantees, promissory notes and other contracts relating to the borrowing of money, other than any Person;
such document or agreement between the Company and a subsidiary of the Company or among subsidiaries of the Company; (7vi) that is a settlement, conciliation contracts involving the sale or similar agreement, the performance purchase of which will involve payment after the First Closing Date of consideration goods or service in excess of $100,000;
(8) that relates to Intellectual Property Rights (other than a license granted to 500,000 in any year or $5,000,000 over the life of such Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000);
(9) that concerns the sale or acquisition of any material portion of the Company’s business;
(10) that concerns a partnership or Material Contract; joint venture;
, partnership and similar agreements; (11viii) involving aggregate consideration liability contracts with respect to capital expenditures or commitments for such expenditures in excess of $100,000 500,000; (ix) contracts providing for payments in excess of $500,000 from the United States Government or any prime contractor of the United States Government over the life of such Company Material Contract; and which(x) all other agreements, contracts or instruments entered into outside of the ordinary course of business or which are material to the Company and its subsidiaries taken as a whole. The Company has delivered or made available to Purchaser true and correct copies of all such Company Material Contracts. All such Company Material Contracts are the legal, valid and binding obligations of the Company and/or its subsidiaries enforceable against the Company or such subsidiary, and, to the knowledge of the Company, against the other parties to the Company Material Contracts, in accordance with their respective terms, subject, in each case, cannot be cancelled by to the Company without penalty or without more than 90 days’ notice;
(12) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking; and
(13) any other contract, agreement or understanding material to Enforceability Exceptions. Neither the Company or any of its subsidiaries nor, to the Company Subsidiaries or their respective operations. Each Contract of a type Previously Disclosed above to this Section 2.2(t) (collectively, the “Material Contracts”), is (i) legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (ii) is in full force and effect and enforceable in accordance with its terms and (iii) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation knowledge of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Company’s Knowledge, any other party thereto thereto, is in material violation of or in material default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documentsin respect of, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiarieshas there occurred an event or condition, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse the passage of time or giving of notice (or both), would constitute a material breach or default under or permit terminationthe termination of, modification, or acceleration, under the agreement and no party thereto has repudiated any provision of such contractCompany Material Contract.
Appears in 2 contracts
Sources: Acquisition Agreement (Parker Hannifin Corp), Acquisition Agreement (Parker Hannifin Corp)
Contracts. Except (a) The Company has made available to Parent true, correct and complete copies, as Previously Disclosedof the date of this Agreement, neither of the following Contracts to which the Company nor or any of its Subsidiaries is a party:
(i) each “material contract” (as such term is defined in Item 10.C and in Instructions As To Exhibits of Form 20-F) to which the Company Subsidiary or any of its Subsidiaries is a party to any contracts or agreements:bound;
(ii) each Contract not contemplated by this Agreement that limits the ability of the Company or any of its Subsidiaries or Affiliates to engage in or compete with any line of business in any location or with any Person in any material manner;
(iii) each Contract that creates a partnership, joint venture or any strategic alliance with respect to the Company or any of its Subsidiaries;
(iv) each employment, consulting, services or similar Contract with any employee or independent contractor of the Company or any of its Subsidiaries involving more than $500,000 of annual compensation;
(v) each indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage or other evidence of Indebtedness or Contract providing for Indebtedness individually in excess of $10,000,000;
(vi) each Contract entered into since January 1) relating , 2024 that relates to indebtedness for borrowed moneythe acquisition or disposition, letters of creditdirectly or indirectly, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any business (whether by merger, amalgamation, sale of the foregoingstock, but in sale of assets or otherwise) or any event excluding trade payablesmaterial assets, securities transactions and brokerage agreements arising including any vessel (other than (A) this Agreement or (B) acquisitions or dispositions of supplies, inventory, merchandise or products (other than vessels) in the ordinary course of business consistent with past practiceor that are obsolete, intercompany indebtedness worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries), including also any such Contract whenever entered into that includes provisions that remain in effect in respect of “earn-outs” or deferred or contingent consideration;
(vii) each ship-sales, memorandum of agreement, bareboat charter, or other vessel acquisition Contract entered into since January 1, 2024 for Newbuildings and immaterial leases secondhand vessels contracted for telephones, copy machines, facsimile machines by the Company or any of its Subsidiaries (other than Company Owned Vessels) and other office equipmentContracts entered into since January 1, 2024 with respect to Newbuildings of the Company or any of its Subsidiaries and the financing thereof, including performance guarantees, counter guarantees, refund guarantees, supervision agreements and plan verification services agreements;
(viii) in excess each pool agreement, management agreement, crewing agreement or financial lease (including sale/leaseback or similar arrangements) with respect to any Company Vessel;
(ix) any Contract with a Third Party for the charter of $100,000, except 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 those issued indemnification by the Company or any of its Subsidiaries to any Person other than a Contract entered into in the ordinary course of business;
(2xii) that constitutes a collective bargaining or other arrangement with any labor union;
(3) that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(4) that is a lease or agreement under each Contract pursuant to which the Company or any of its Subsidiaries spent or received, in the Company Subsidiaries is lessee ofaggregate, more than $2,500,000 during the twelve (12) months prior to the date hereof or holds could reasonably be expected to spend or operatesreceive, any property owned by any other Personin the aggregate, more than $2,500,000 during the twelve (12) months immediately after the date hereof;
(5xiii) that is a lease or agreement under each Contract to which the Company or any of the Company its Subsidiaries is lessor of, a party or permits any Person to hold otherwise bound that contains a so-called “most favored nations” provision or operate, any property owned or controlled by similar provisions requiring the Company or its Affiliates to offer to a Person any of the Company Subsidiaries;terms or conditions that are at least as favorable as those offered to one or more other Persons; and
(6xiv) limiting the ability each Contract involving a standstill or similar obligation of the Company or any of its Subsidiaries.
(b) Except as set forth on Section 4.15(b) of the Company Subsidiaries Disclosure Letter or would not reasonably be expected to engage, in any material respect, in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(7) that is a settlement, conciliation or similar agreement, the performance of which will involve payment after the First Closing Date of consideration in excess of $100,000;
(8) that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000);
(9) that concerns the sale or acquisition of any material portion of the Company’s business;
(10) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability in excess of $100,000 and which, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice;
(12) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking; and
(13) any other contract, agreement or understanding material to the Company or any of the Company Subsidiaries or their respective operations. Each Contract of and its Subsidiaries, taken as a type Previously Disclosed above to this Section 2.2(t) (collectivelywhole, the “Material Contracts”), is (i) legal, valid and binding on each of the Company and the Company Subsidiaries which are a party to such contract, (ii) Material Contracts is in full force and effect and enforceable in accordance with its terms and (iii) will continue to be legal, valid, binding, enforceable, enforceable and in full force and effect on identical terms following the consummation of the transactions contemplated by the Transaction Documents. Neither with respect to the Company nor any of the Company Subsidiaries, nor to the Company’s Knowledge, any other party thereto is in default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company its Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, except to the extent that the enforceability thereof may be limited by the Equitable Exceptions and except for any Material Contracts that have performed expired or been terminated after the date hereof in all material respects all material obligations required to be performed by them under each Material Contractaccordance with its terms, and (ii) neither the Company nor any of its Subsidiaries, nor to the Knowledge of the CompanyCompany any other party to a Material Contract, no event has occurred that violated any provision of, or taken or failed to take any act which, with notice or without notice, lapse of time time, or both, would constitute a material breach or default or permit termination, modificationunder, or accelerationgive rise to any right of cancellation or termination of or consent under, such Material Contract, and neither the Company nor any of its Subsidiaries has received written notice that it has breached, violated or defaulted under the agreement and no party thereto has repudiated any provision of such contractMaterial Contract.
Appears in 2 contracts
Sources: Merger Agreement (CMB.TECH Nv), Merger Agreement (Golden Ocean Group LTD)
Contracts. (a) Except for the Benefit Plans listed on Section 4.12(b) of the Company Schedule of Exceptions, and as Previously Disclosedset forth in Section 4.15(a) of the Company Schedule of Exceptions, neither the Company nor any Company Subsidiary of its Subsidiaries is a party to any contracts or agreements:
(1) relating to indebtedness for borrowed moneybound by, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any as of the foregoingdate hereof, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipmentcontract (whether written or oral) in excess of $100,000, except for those issued in the ordinary course of business;
(2) that constitutes a collective bargaining or other arrangement with any labor union;
(3i) that is a “material contract” within the meaning of (as such term is defined in Item 601(b)(10) of Regulation S-K;
K of the SEC), (4ii) that is a lease purports to limit, curtail or agreement under which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person;
(5) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(6) limiting restrict the ability of the Company or any of the Company its existing Subsidiaries to engage, compete in any material respect, in any geographic area or line of business or restrict the Persons to competewhom the Company or any of its Subsidiaries may sell products or deliver services, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(7iii) that is a settlementpartnership or joint venture agreement for the acquisition, conciliation sale or similar agreementlease of material properties or assets, including equipment (by merger, purchase or sale of stock or assets or otherwise), with a value at the performance time of which will involve payment after the First Closing Date of consideration such acquisition, sale or lease in excess of $100,000;
1,000,000 and entered into since January 1, 2010, (8) v) with any Governmental Entity that relates to Intellectual Property Rights (other than is not a license granted to customer, client or supply franchise or any director, Executive Officer of the Company for commercially available software licensed on standard terms with a total replacement cost or any of less than $100,000);
(9) that concerns the sale its Subsidiaries or acquisition of any material portion Affiliate of the Company’s business;
, (10vi) that concerns is a partnership loan or joint venture;
(11) involving aggregate consideration liability credit agreement, mortgage, indenture, note or other contract or instrument evidencing indebtedness for borrowed money by the Company or any of its Subsidiaries or any contract or instrument pursuant to which indebtedness for borrowed money may be incurred or is guaranteed by the Company or any of its Subsidiaries having an outstanding principal amount in excess of $100,000 and whichindividually, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice;
(12vii) that concerns is a financial derivatives master agreement or confirmation, or futures account opening agreements and/or brokerage statements, evidencing financial hedging or similar trading activities, (viii) that is a voting agreement or registration rights agreement, (ix) that is a mortgage, pledge, security agreement, deed of trust or other contract granting a Lien on any material hedge, collar, option, forward purchasing, swap, derivative property or similar agreement, understanding or undertaking; and
(13) any other contract, agreement or understanding material to assets of the Company or any of its Subsidiaries, (x) that is a contract (other than customer, client, employment, consulting or supply contract) that involves cash consideration of greater than $100,000, (xi) that is a collective bargaining agreement, (xii) that is a “standstill” or similar agreement, (xiii) that is a contract that restricts or otherwise limits the payment of dividends or other distributions on equity securities, (xiv) to the extent material to the business or financial condition of the Company Subsidiaries and its Subsidiaries, taken as a whole, that is a (A) lease or their respective operations. Each Contract rental contract, (B) project design or development contract, (C) consulting contract, (D) indemnification contract, (E) license or royalty contract, (F) merchandising, sales representative or distribution contract or (G) contract granting a right of first refusal, offer or first negotiation, or (xv) that is a type Previously Disclosed above commitment or agreement to enter into any of the foregoing (the contracts and other documents described in clauses (i) through (xv) of this Section 2.2(t4.15(a) (collectivelyand to which the Company and any of its Subsidiaries is a party to or bound by, all contracts set forth in Section 4.15(a) of the Company Schedule of Exceptions and all contracts which have been filed with the SEC prior to the date hereof and are still in effect as of the date hereof, being referred to herein as “Material Contracts”), is .
(b) (i) legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (ii) is in full force and effect and enforceable in accordance with its terms and (iii) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company its Subsidiaries, nor nor, to the Company’s Knowledge, any other party thereto party, is in default under any Material Contract. No benefits under any Material Contract will be increasedin the performance, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence observance or fulfillment of any of the transactions contemplated by the Transaction Documentsobligations, nor will the value of any of the benefits under covenants or conditions contained in any Material Contract to which it is a party, except for such defaults that would not reasonably be calculated on expected to have a Company Material Adverse Effect and (ii) to the 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 that would reasonably be expected to have a Company Material Adverse Effect. All Material Contracts to which the Company or any of the transactions contemplated its Subsidiaries is a party, or by the Transaction Documents. The Company which any of their respective assets are bound, are valid and binding, in full force and effect and enforceable against the Company Subsidiariesor any such Subsidiary, as the case may be, and to the Knowledge of the Company’s Knowledge, each of the other parties theretothereto in accordance with their respective terms, have performed in all material respects all material obligations required subject to be performed by them under each Material Contractapplicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws relating to creditors’ rights generally and to the Knowledge general principles of equity.
(c) No Material Contract will, by its terms, terminate as a result of the Company, no event has occurred that with notice Transactions or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the agreement and no require any consent from any party thereto has repudiated any provision in order to remain in full force and effect immediately after the Effective Time.
(d) There are no contracts or agreements of such contractthe Company having terms or conditions which have had a Company Material Adverse Effect which is continuing or that materially impair the ability of the Company to conduct its business as currently conducted.
Appears in 2 contracts
Sources: Merger Agreement (Blackbaud Inc), Merger Agreement (Convio, Inc.)
Contracts. Except (a) All Contracts required to be filed as Previously Disclosed, neither exhibits to the Company nor SEC Documents have been so filed in a timely manner. Section 3.11(a) of the Company Disclosure Letter sets forth a true and complete list of each of the following Contracts to which the Company or any Company Subsidiary is a party to or by which the Company or any contracts Company Subsidiary or agreements:any of their assets or businesses are bound (and any amendments, supplements and modifications thereto):
(1) relating to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $100,000, except for those issued in the ordinary course of business;
(2) that constitutes a collective bargaining or other arrangement with any labor union;
(3) Contract that is a “material contract” within the meaning of (as such term is defined in Item 601(b)(10) of Regulation S-KK of the Exchange Act other than any such Contract that is not required to be filed under clause (iii)(C) thereof);
(2) any employment Contract that has an aggregate future liability in excess of $1,000,000 and is not terminable by the Company or a Company Subsidiary by notice of not more than 60 days;
(3) any collective bargaining agreement or other Contract with any labor organization, union or association;
(4) any Contract that is a lease or agreement under which the Company or limits in any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person;
(5) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(6) limiting material respect the ability of the Company or any Company Subsidiary (or, following the consummation of the Company Subsidiaries to engageTransactions, would limit in any material respectrespect the ability of Parent or any Parent Subsidiary, including the Surviving Corporation or the Surviving Company) to compete in any line of business or to compete, whether by restricting territories, customers or otherwise, with any Person or in any other material respect, with geographic area;
(5) any PersonContract that would be required to be disclosed pursuant to Item 404 of Regulation S-K of the Exchange Act;
(6) any Contract for the lease of real property by the Company or any Company Subsidiary that by its terms calls for aggregate annual rent payments of more than $2,000,000 by the Company and the Company Subsidiaries;
(7) any license, sublicense, option or other Contract relating in whole or in part to the Company Intellectual Property (including any license or other Contract under which the Company or a Company Subsidiary is licensee or licensor of any Intellectual Property) or to any Technology, in each case material to the Company and the Company Subsidiaries, taken as a whole, other than licenses granted by the Company or Company Subsidiaries to clients in the Ordinary Course of Business or license agreements for software that is a settlement, conciliation generally commercially available;
(8) any Contract or similar agreement, the performance series of which will involve payment after the First Closing Date of consideration related Contracts relating to indebtedness for borrowed money (i) in excess of $100,000;
5,000,000 or (8) ii) that relates to Intellectual Property Rights (other than becomes due and payable as a license granted to result of the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000)Transactions;
(9) any Contract under which the Company or a Company Subsidiary has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Company Subsidiary), in any such case that concerns the sale or acquisition is in excess of any material portion of the Company’s business$10,000,000;
(10) any Contract that concerns provides for any standstill or similar obligations to which the Company or any Company Subsidiary is subject or a partnership beneficiary thereof, which is material to the Company and Company Subsidiaries taken as a whole (or, following the consummation of the Transactions, would be material to Parent or joint ventureany Parent Subsidiary, including the Surviving Corporation or the Surviving Company);
(11) involving aggregate consideration liability in excess any Contract (including a purchase order) with any of $100,000 and which, in each case, cannot be cancelled the Company’s top-50 suppliers (measured by dollar volume of purchases of the Company without penalty or without more than 90 days’ noticeduring the twelve months ended June 30, 2010);
(12) that concerns any material hedge, collar, option, forward purchasing, swap, derivative master services agreement (or similar master agreements), human resources services agreement, understanding or undertaking; and
(13) any other contract, administrative services agreement or understanding material similar client agreement pursuant to which the Company or and/or any of the Company Subsidiaries or their respective operations. Each Contract of a type Previously Disclosed above to this Section 2.2(t) (collectively, the “Material Contracts”), is provides (i) legal, valid and binding on services or products to any client in its benefits outsourcing segment under which the Company and the Company Subsidiaries which have recognized or are a party reasonably expected to such contractrecognize more than $10,000,000 in revenues in any fiscal year, (ii) services or products to any client in its HR BPO segment under which the Company and the Company Subsidiaries have recognized or are reasonably expected to recognize more than $10,000,000 in revenues in any fiscal year or (iii) services or products to any client in its consulting segment under which the Company and the Company Subsidiaries have recognized or are reasonably expected to recognize more than $10,000,000 in revenues in any fiscal year;
(13) any Contract for any joint venture, partnership or similar arrangement, or any Contract involving a sharing of revenues, profits, losses, costs, or liabilities by the Company or any Company Subsidiary with any other Person involving a potential combined commitment or payment by the Company and any Company Subsidiary in excess of $5,000,000 annually;
(14) any other Contract not otherwise required to be disclosed pursuant to this Section 3.11(a) that has an aggregate payment obligation to any Person in excess of $20,000,000 and is not terminable by the Company or a Company Subsidiary by notice of not more than 60 days; or
(15) any Contract that is material to the business of the Company and the Company Subsidiaries, taken as a whole, that would or would reasonably be expected to prevent, materially delay or impair the consummation of the Transactions.
(b) To the Knowledge of the Company, all Contracts set forth or required to be set forth in Section 3.11(a) of the Company Disclosure Letter or filed or required to be filed as exhibits to the Company SEC Documents (the “Company Contracts”) are valid, binding and in full force and effect and are enforceable by the Company or the applicable Company Subsidiary in accordance with its terms their terms, except as limited by Laws affecting the enforcement of creditors’ rights generally, by general equitable principles or by the discretion of any Governmental Entity before which any Proceeding seeking enforcement may be brought and (iii) will continue except for such failures to be legal, valid, binding, enforceable, and in full force and effect on identical terms following or enforceable that, individually or in the consummation of the transactions contemplated by the Transaction Documentsaggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any of the Company Subsidiaries, nor to the Company’s Knowledge, any other party thereto is in default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to To the Knowledge of the Company, each of the other parties thereto, have Company or the applicable Company Subsidiary has performed in all material respects all material obligations required to be performed by them it under each Material Contractthe Company Contracts, and it is not (with or without notice or lapse of time, or both) in breach or default in any material respect thereunder and, to the Knowledge of the Company, no event has occurred that other party to any Company Contract is (with or without notice or lapse of time would constitute a material time, or both) in breach or default in any material respect thereunder. Since October 1, 2009, to the Knowledge of the Company, neither the Company nor any of the Company Subsidiaries has received written notice of any actual, alleged, possible or permit termination, modificationpotential violation of, or accelerationfailure to comply with, under any material term or requirement of any Company Contract. To the agreement and no Knowledge of the Company, neither the Company nor any of the Company Subsidiaries has received any written notice of the intention of any party thereto has repudiated to terminate any provision of such contractCompany Contract.
Appears in 2 contracts
Sources: Merger Agreement (Aon Corp), Merger Agreement (Hewitt Associates Inc)
Contracts. (a) There have been made available to Parent true, correct and complete copies of all of the following contracts to which Company or any of its Subsidiaries is a party or by which any of them is bound as of the date of this Agreement (collectively, the "MATERIAL CONTRACTS"): (i) contracts with any director of the Company, material contracts (other than those terminable at will without penalty) with any current officer of the Company or any of its Subsidiaries and employment, severance or termination agreements with any executive officer of the Company or any of its Subsidiaries; (ii) contracts (A) for the sale (other than completed sales) of material assets of the Company or any of its Subsidiaries, other than contracts entered into in the ordinary course of business or (B) for the grant to any person of any preferential rights to purchase any of its assets; (iii) contracts which restrict the Company or any of its Subsidiaries from competing in any line of business or with any person in any geographical area, other than those the performance or breach of which could not, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect; and (iv) indentures, credit agreements, security agreements, mortgages, guarantees, promissory notes and other contracts relating to the borrowing of money, other than (A) any of the foregoing with respect to indebtedness to any Person of less than $5.0 million, (B) intercompany loans or guarantees between the 22 Company and any of its Subsidiaries or between any such Subsidiaries or for the benefit of, or guaranteeing or securing obligations of, the Company or a Subsidiary of the Company and (C) security agreements covering personal property that are not individually or in the aggregate material to the Company and its Subsidiaries, taken as a whole.
(b) Except as Previously Disclosedspecified in Section 3.14 of the Company Disclosure Letter, 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 subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity), except where the failure of such Material Contracts to be in full force and effect or to be legal, valid, binding or enforceable against the Company and/or its Subsidiaries has not had and could not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except as specified in Section 3.14 of the Company Disclosure Letter, neither the Company nor any Company Subsidiary is a party to any contracts or agreements:
(1) relating to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $100,000, except for those issued in the ordinary course of business;
(2) that constitutes a collective bargaining or other arrangement with any labor union;
(3) that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(4) that is a lease or agreement under which the Company or any of the Company its Subsidiaries is lessee of, in breach or holds or operates, any property owned by any other Person;
(5) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(6) limiting the ability of the Company or any of the Company Subsidiaries to engage, default in any material respect, in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(7) that is a settlement, conciliation or similar agreement, the performance of which will involve payment after the First Closing Date of consideration in excess of $100,000;
(8) that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000);
(9) that concerns the sale or acquisition of any material portion of the Company’s business;
(10) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability in excess of $100,000 and which, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice;
(12) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking; and
(13) any other contract, agreement or understanding material to the Company or any of the Company Subsidiaries or their respective operations. Each Contract of a type Previously Disclosed above to this Section 2.2(t) (collectively, the “Material Contracts”), is (i) legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (ii) is in full force and effect and enforceable in accordance with its terms and (iii) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Company’s Knowledge, any other party thereto is in default under any Material Contract. No benefits respect under any Material Contract will be increasednor, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the is any other parties thereto, have performed party to any Material Contract in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default thereunder in any material respect, except for such breaches or permit terminationdefaults that have not had and could not, modificationindividually or in the aggregate, or acceleration, under the agreement and no party thereto has repudiated any provision of such contractreasonably be expected to have a Company Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Federated Department Stores Inc /De/), Merger Agreement (Fingerhut Companies Inc)
Contracts. Except as Previously Disclosed, neither Section 5.12 of the Disclosure Schedule sets forth a complete and accurate list of all of the following Contracts to which any Transferred Company nor any Company Subsidiary is a party to any contracts or agreementsby which it is bound:
(1a) relating to indebtedness Contracts for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect the sale of any of the foregoing, but in assets of any event excluding trade payables, securities transactions and brokerage agreements arising Transferred Company other than in the ordinary course of business consistent with past practiceor for the grant to any Person of any preferential rights to purchase any of such assets other than in the ordinary course of business, intercompany indebtedness and immaterial leases in each case for telephones, copy machines, facsimile machines and other office equipment) consideration in excess of $100,0001,000,000;
(b) Contracts for joint ventures, except partnerships or sharing of profits or proprietary information;
(c) Contracts containing covenants not to compete in any line of business or with any Person in any geographical area;
(d) Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) of any operating business or material assets or the capital stock of any other Person for those issued consideration in excess of $2,000,000, other than any such acquisitions in the ordinary course of business or reflected in the capital expenditure budget information provided to Parent;
(e) outstanding Contracts of Indebtedness or guaranty or surety of material Indebtedness or indemnification of any amount in excess of $500,000, other than in the ordinary course of business;
(2f) that constitutes a collective bargaining any Contract under which any Transferred Company has advanced or other arrangement with loaned any labor unionamount to any of its directors, officers and employees;
(3g) that is a “any material contract” within Contracts between any of the meaning Transferred Companies, on the one hand, and ED&F or any Affiliate of Item 601(b)(10) of Regulation S-KED&F, on the other hand;
(4h) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Personcollective bargaining Contracts;
(5i) that is a lease Contracts outside the ordinary course of business for the storage, treatment, disposal, investigation or agreement under which the Company or any remediation of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company SubsidiariesHazardous Substances;
(6j) limiting the ability Contracts providing for indemnification of the Company any officer or director of a Transferred Company, other than any existing directors’ and officers’ insurance policy and as provided in organizational documents of the Company Subsidiaries to engageany such company, as currently in any material respect, in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;effect; and
(7k) other Contracts (other than those listed in clauses (a) through (j) of this Section 5.12 and other than the Employment Contracts) (A) with a term longer than 180 days from the date hereof that is a settlement, conciliation or similar agreement, the performance of which will involve payment after the First Closing Date of consideration payments by any Transferred Company in excess of $100,000;
1,000,000 per year; or (8) that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms B) with a total replacement cost of term less than $100,000);
one (91) year from the date hereof that concerns the sale or acquisition of involve payments by any material portion of the Company’s business;
(10) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability Transferred Company in excess of $100,000 and which1,000,000, that are not terminable without premium or penalty on less than 30 days’ notice, in each case, cannot be cancelled such Contracts that are related primarily to a business included in the Business. Except as set forth in Section 5.12 of the Disclosure Schedule, and assuming due authorization, execution and delivery by the Company without penalty or without more than 90 days’ notice;
(12) that concerns any material hedgeother parties thereto, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking; and
(13) any other contract, agreement or understanding material to the Company or any each Contract listed in Section 5.12 of the Disclosure Schedule, each Employment Contract, each Lease listed in Section 5.9(a) of the Disclosure Schedule and each material Contract pertaining to Intellectual Property to which a Transferred Company Subsidiaries or their respective operations. Each Contract of is a type Previously Disclosed above to this Section 2.2(t) (collectively, the “Material Contracts”), party is (i) legal, valid and is binding on the each Transferred Company party thereto and, to ED&F’s Knowledge, each other party thereto and the Company Subsidiaries which are a party to such contract, (ii) is in full force and effect and enforceable effect. Except as set forth in accordance with its terms and (iii) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation Section 5.12 of the transactions contemplated by the Transaction Documents. Neither the Disclosure Schedule, no Transferred Company nor any of the Company Subsidiariesnor, nor to the CompanyED&F’s Knowledge, any other party thereto is in default or breach in any material respect under the terms of, nor has any Material Contract. No benefits under Transferred Company received any Material Contract will be increased, and no vesting notice of any benefits under material default or breach under, any Material such Contract will be acceleratedor Lease, by the occurrence of any of the transactions contemplated by the Transaction Documentsand, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the CompanyED&F’s Knowledge, no event or circumstance has occurred that that, with the passage of time or the giving of notice or lapse of time both, would constitute a material breach default thereunder or default or would permit termination, material modification, or acceleration, under or termination of any such Contract or the agreement loss of any material benefit thereunder. ED&F has delivered or made available to Parent copies of all of the written Contracts listed in Section 5.12 of the Disclosure Schedule and no party thereto has repudiated any provision of such contractall of the written Employment Contracts that are true, correct and complete in all material respects, together with all material amendments thereto.
Appears in 2 contracts
Sources: Transaction Agreement (Shermen WSC Acquisition Corp), Transaction Agreement (Shermen WSC Acquisition Corp)
Contracts. Except (a) Schedule 4.14(a) sets forth a true, complete and accurate list, as Previously Disclosedof the date of this Agreement, neither of all of the following Contracts as amended to date which are currently in effect (collectively, “Material Contracts”):
(i) all Contracts that require annual payments or expenses incurred by, or annual payments or income to, the Company nor any Company Subsidiary is a party to any contracts Group of US$200,000 or agreements:
more (1) relating to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions other than standard purchase and brokerage agreements arising sale orders entered into in the ordinary course of business consistent with past practicepractices) including sales, intercompany indebtedness advertising, agency, sales promotion, market research, marketing or similar contracts;
(ii) each Contract with any current employee of the Company Group (A) which has continuing obligations for payment of an annual compensation of at least US$200,000, and immaterial leases which is not terminable for telephonesany reason or no reason upon reasonable notice without payment of any penalty, copy machines, facsimile machines and severance or other office equipmentobligation; (B) providing for severance or post-termination payments or benefits to such employee in excess of $100,000, except for those issued in the ordinary course of business;
US$60,000 (2) that constitutes a collective bargaining or other arrangement with any labor union;
(3) that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(4) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person;
(5) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(6) limiting the ability of the Company or any of the Company Subsidiaries to engage, in any material respect, in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(7) that is a settlement, conciliation than COBRA obligations or similar agreement, the performance of which will involve requirements under applicable local Law); or (C) providing for a payment after the First Closing Date of consideration or benefit in excess of $100,000;
(8) that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000);
(9) that concerns the sale or acquisition of any material portion of the Company’s business;
(10) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability in excess of $100,000 and which, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice;
(12) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking; and
(13) any other contract, agreement or understanding material to the Company or any of the Company Subsidiaries or their respective operations. Each Contract of a type Previously Disclosed above to this Section 2.2(t) (collectively, the “Material Contracts”), is (i) legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (ii) is in full force and effect and enforceable in accordance with its terms and (iii) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following US$60,000 upon the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control of the Transaction DocumentsCompany;
(iii) all Contracts creating a joint venture, strategic alliance, limited liability company or partnership arrangement to which a member of the Company Group is a party;
(iv) all Contracts relating to any acquisitions or dispositions of assets of value in excess of US$100,000 by the Company Group (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices);
(v) all IP Contracts, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vi) all Contracts limiting the freedom of the Company Group to compete in any line of business or industry, with any Person or in any geographic area;
(vii) all Contracts providing for guarantees, indemnification arrangements and other hold harmless arrangements made or provided by the Company, including all ongoing agreements for repair, warranty, maintenance, service, indemnification or similar obligations, other than Standard Contracts;
(viii) all Contracts with or pertaining to the Company Group to which any Affiliate of the Company Group is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or Contracts entered into on arms’ length terms by which any Company Group company provides goods or services to any other Company Group company;
(ix) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of US$200,000 per year;
(x) all Contracts creating or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate that are valued at US$250,000 or greater;
(xi) all Contracts relating to the voting or control of the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group);
(xii) all Contracts not cancellable by the Company Group with no more than ninety (90) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess of US$200,000 per the terms of such Contract;
(xiii) all Contracts that may be terminated, or the provisions of which may be altered, as a result of the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement and which constitute Material Contracts as defined by the other subsections of this Section 4.14(a);
(xiv) all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) all collective bargaining agreements or other agreement with a labor union, labor organization or works council or other representative of a group of employees.
(b) Each Material Contract is (i) a valid and binding agreement, (ii) in full force and effect and (iii) enforceable by and against the Company Group and, to the Company’s Knowledge, each counterparty that is party thereto, subject, in the case of this clause (iii), to the Enforceability Exceptions. Neither the Company nor any of the Company SubsidiariesGroup nor, nor to the Company’s Knowledge, any other party thereto to a Material Contract is in material breach or default (whether with or without the passage of time or the giving of notice or both) under the terms of any such Material Contract. No benefits The Company Group has not assigned, delegated or otherwise transferred any of its rights or obligations under any Material Contract will be increasedor granted any power of attorney with respect thereto.
(c) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and no vesting of other instruments or Contracts establishing or evidencing any benefits under any Material Contract will be accelerated, by the occurrence of any Indebtedness. The consummation and closing of the transactions contemplated by the Transaction Documents, nor will the value this Agreement shall not cause or result in an event of any of the benefits default under any Material Contract be calculated on the basis of instruments or Contracts establishing or evidencing any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the agreement and no party thereto has repudiated any provision of such contractIndebtedness.
Appears in 2 contracts
Sources: Merger Agreement (Aerkomm Inc.), Merger Agreement (IX Acquisition Corp.)
Contracts. (a) Except as Previously Disclosedfor the contracts and agreements described in Schedule 5.11 of the Parent Disclosure Schedule (collectively, the "PARENT MATERIAL CONTRACTS"), neither Parent nor the Company nor any Company Subsidiary Parent Subsidiaries is a party to any or bound by the following contracts or agreements:(which for purposes of this Agreement shall be deemed Parent Material Contracts):
(1i) relating any distribution or software manufacturer's representative contract that represents ten percent (10%) or more of Parent's combined annual revenues;
(ii) any contract for the provision of software, outsourcing or consulting services or computer hardware, including contracts billed on time plus materials and fixed-price contracts involving in the case of any such contact more than $3,000,000 per annum;
(iii) any contract related to indebtedness the provision of services to early-stage entities in consideration for, among other things, equity interests in such entities, along with any subscription or agreements with respect to investments in such entities and instruments or securities evidencing such equity interests, including any warrants or options;
(iv) any hedging arrangements, including any puts or call options;
(v) any trust indenture, mortgage, promissory note, loan agreement or other contract for borrowed the borrowing of money, letters of creditany currency exchange, capital lease obligations, obligations secured by a Lien commodities or interest rate other hedging arrangement or currency hedging agreements (including guarantees in respect of any leasing transaction of the foregoing, but type required to be capitalized in accordance with US GAAP;
(vi) any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases contract for telephones, copy machines, facsimile machines and other office equipment) capital expenditures in excess of $100,000, except for those issued 3,000,000 in the ordinary course of businessaggregate;
(2vii) that constitutes a collective bargaining or other arrangement with any labor union;
(3) that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(4) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person;
(5) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(6) contract limiting the ability of the Company or any of the Company Subsidiaries to engage, in any material respect, respects the freedom of the Parent or any Parent Subsidiary to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in compete with any other material respect, with any Person;
(7viii) that any contract pursuant to which the Parent or any Parent Subsidiary is a settlementlessor of any machinery, conciliation equipment, motor vehicles, office furniture, fixtures or other personal property involving in the case of any such contract more than $3,000,000 in any calendar year;
(ix) any contract with any Person (other than the Parent or any Parent Subsidiary) with whom the Parent or any Parent Subsidiary does not deal at arm's length within the meaning of the Code;
(x) any agreement of guarantee, support, indemnification, assumption or endorsement of, or any similar agreementcommitment with respect to, the performance obligations, liabilities (whether accrued, absolute, contingent or otherwise) or indebtedness of which will involve payment after any other Person; or
(xi) any agreement relating to the First Closing Date acquisition of a business for aggregate consideration in excess of $100,000;1,000,000 entered into in the last three years.
(8) that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000);
(9b) that concerns the sale or acquisition of any material portion Parent and each Parent Subsidiary has performed all of the Company’s business;
(10) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability in excess of $100,000 and which, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice;
(12) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking; and
(13) any other contract, agreement or understanding material to the Company or any of the Company Subsidiaries or their respective operations. Each Contract of a type Previously Disclosed above to this Section 2.2(t) (collectively, the “Material Contracts”), is (i) legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (ii) is in full force and effect and enforceable in accordance with its terms and (iii) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Company’s Knowledge, any other party thereto is in default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contractit and is entitled to all benefits under, and to the Knowledge of Parent, is not alleged to be in default in respect of any Parent Material Contract. Each of the CompanyParent Material Contracts is in full force and effect, unamended, and there exists no default or event has occurred that of default or event, occurrence, condition or act, with notice respect to Parent or any Parent Subsidiary or to the Knowledge of Parent with respect to the other contracting party, which, with the giving of notice, the lapse of the time or the happening of any other event or conditions, would constitute become a material breach or default or permit terminationevent of default under any Parent Material Contract. True, modification, correct and complete copies of all Parent Material Contracts have been delivered or acceleration, under the agreement and no party thereto has repudiated any provision of such contractmade available to Company.
Appears in 2 contracts
Sources: Merger Agreement (Sapiens International Corp N V), Merger Agreement (Ness Technologies Inc)
Contracts. Except as Previously Disclosed, neither disclosed in the applicable subsection of Section 3.16 of the Company nor any Disclosure Schedule (which is arranged in subsections numbered (i) to (xiv) to correspond to the subsections of this Section 3.16 of the Company Subsidiary Disclosure Schedule), the Company is not bound by or a party to any contracts or agreementsto:
(1i) relating any Contractual Obligation (or group of related Contractual Obligations) for the purchase, sale, construction, repair or maintenance of inventory, raw materials, commodities, supplies, goods, products, equipment or other property, or for the furnishing or receipt of services, in each case, the performance of which will extend over a period of more than one year or which provides for (or would be reasonably expected to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured involve) annual payments to or by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) Company in excess of $100,000, except for those issued 100,000 or aggregate payments to or by the Company in the ordinary course excess of business$200,000;
(2ii) that constitutes a collective bargaining any Contractual Obligation relating to the acquisition or disposition by the Company of (A) any business (whether by merger, consolidation or other arrangement with business combination, sale of securities, sale of assets or otherwise) or (B) any labor unionmaterial Asset (other than in the Ordinary Course of Business);
(3iii) that is any Contractual Obligation concerning or consisting of a “material contract” within the meaning of Item 601(b)(10) of Regulation S-Kpartnership, limited liability company, joint venture or similar agreement;
(4iv) that is a lease or agreement any Contractual Obligation under which the Company or has permitted any of the Company Subsidiaries is lessee of, or holds or operates, any property owned Asset to become Encumbered (other than by any other Persona Permitted Encumbrance);
(5v) that is a lease or agreement any Contractual Obligation (A) under which the Company has created, incurred, assumed or guaranteed any Debt or (B) under which any other Person has guaranteed any Debt of the Company Subsidiaries is lessor ofCompany;
(vi) any Contractual Obligation containing covenants that in any way purport to (A) restrict any business activity (including the solicitation, hiring or permits engagement of any Person to hold or operate, the solicitation of any property owned or controlled customer) by the Company or any of (B) limit the Company Subsidiaries;
(6) limiting the ability freedom of the Company or any of the Company Subsidiaries Affiliate thereof to engage, in any material respect, engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, compete with any Person;
(7vii) any Contractual Obligation under which the Company is, or may become, obligated to incur any severance pay or Compensation obligations that is a settlement, conciliation would become payable by reason of this Agreement or similar agreement, the performance of which will involve payment after the First Closing Date of consideration in excess of $100,000Contemplated Transactions;
(8) that relates viii) any Contractual Obligation under which the Company is, or may, have any Liability to any investment bank, broker, financial advisor, finder or other similar Person (including an obligation to pay any legal, accounting, brokerage, finder’s, or similar fees or expenses) in connection with this Agreement or the Contemplated Transactions;
(ix) any Contractual Obligation providing for the employment or consultancy of any 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 (other than a Company Plan and other than any consultancy involving Compensation of less than $50,000 per year);
(x) any 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;
(xii) any Contractual Obligation, other than Real Property Leases, relating to the lease or license of any material Asset, including Company Products and material Intellectual Property Rights (other than a and including all material customer license granted to and maintenance agreements) that is not included on Section 3.11(d) of the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000)Disclosure Schedule;
(9xiii) any Contractual Obligation under which the Company 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, on the one hand, and any Seller (or Affiliate or Family Member thereof), on the other hand, that concerns will continue in effect after the sale or acquisition Closing. The Company has delivered to the Buyer accurate and complete copies of any material portion each written Contractual Obligation listed on Section 3.16 of the Company’s business;
(10) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability in excess of $100,000 and whichCompany Disclosure Schedule, in each case, cannot be cancelled by the as amended or otherwise modified and in effect. The Company without penalty or without more than 90 days’ notice;
(12) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking; and
(13) any other contract, agreement or understanding material has delivered to the Company or any Buyer written summary setting forth all of the material terms and conditions of each oral Contractual Obligation listed on Section 3.16 of the Company Subsidiaries or their respective operations. Each Contract of a type Previously Disclosed above to this Section 2.2(t) (collectively, the “Material Contracts”), is (i) legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (ii) is in full force and effect and enforceable in accordance with its terms and (iii) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Company’s Knowledge, any other party thereto is in default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the agreement and no party thereto has repudiated any provision of such contractDisclosure Schedule.
Appears in 2 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (Mercury Computer Systems Inc)
Contracts. (a) Except as Previously Disclosedset forth in the Company Disclosure Schedule corresponding to this Section 3.13(a), neither the Company nor any Company Subsidiary is a party to any contracts or agreements:
(1) relating to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured bound by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $100,000, except for those issued in the ordinary course of business;
(2) that constitutes a collective bargaining or other arrangement with any labor union;
(3) that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(4) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person;
(5) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(6) limiting the ability of the Company or any of the Company Subsidiaries to engage, in any material respect, in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(7) that is a settlement, conciliation or similar agreement, the performance of which will involve payment after the First Closing Date of consideration in excess of $100,000;
(8) that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000);
(9) that concerns the sale or acquisition of any material portion of the Company’s business;
(10) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability in excess of $100,000 and which, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice;
(12) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking; and
(13) any other contract, agreement or understanding material to the Company or any of the Company Subsidiaries or their respective operations. Each Contract of a type Previously Disclosed above to this Section 2.2(t) following Contracts (collectively, the “Material Contracts”), is ):
(i) legal, valid any Contract that expressly and binding on materially limits the ability of the Company or any Company Subsidiary to compete in or conduct any line of business or compete with any Person or in any geographic area or during any period of time;
(ii) any Contract with any labor union or labor association representing any employee of the Company or any Company Subsidiary;
(iii) any Contract for the acquisition or sale of any assets or securities of any Person having a fair market value in excess of $1,000,000;
(iv) any Contract relating to the incurrence of Indebtedness (other than borrowings between the Company and the Company any of its wholly-owned Subsidiaries which are a party to such contract, (ii) is in full force and effect and enforceable in accordance with its terms and (iii) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor or between any of the Company Subsidiaries, nor to the Company’s Knowledgewholly-owned Subsidiaries) involving amounts in excess of $500,000;
(v) any Contract pursuant to which the Company or any Company Subsidiary has any payment obligations (whether contingent or otherwise) that could arise after the date of the Team Balance Sheet in respect of earn-outs, any other party thereto is deferred purchase price arrangements, indemnities or similar arrangements that have arisen in default under any Material Contract. No benefits under connection with investments in or acquisitions or dispositions of companies or businesses;
(vi) any Material Contract will be increasedproviding for future payments that are conditioned upon, and no vesting in whole or in part, a change of control or similar event;
(vii) any material joint venture or partnership agreement or similar Contract;
(viii) any Contract containing any material restrictions on acquisitions of the equity of the counterparty thereto;
(ix) other than any Contract involving consideration of less than $500,000, (A) any Contract granting or obtaining any right to use or practice any rights under any material Company Intellectual Property or material intellectual property of any benefits under other Person (other than licenses for off-the-shelf-standard commercially available software), (B) any material information technology service Contract and (C) any material intellectual property outsourcing Contract;
(x) other than any Contracts with physicians that are not employees of the Company or any Company Subsidiary, any employment, consulting, severance or similar agreement with any employee, independent contractor or consultant of the Company or any Company Subsidiary whose current annual cash compensation is in excess of $300,000 that is not terminable by the Company or such Company Subsidiary by notice of not more than 180 days for a cost of less than $200,000;
(xi) any Contract restricting the payment of dividends or other distributions; and
(xii) any Contracts relating to the leasing of any real or personal property providing for annual rentals of $250,000 or more.
(b) Except as would not have a Material Adverse Effect, each Material Contract will be acceleratedis a valid, by the occurrence of any binding and enforceable obligation of the transactions contemplated by Company or a Company Subsidiary, as the Transaction Documentscase may be, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiariesand, and to the Knowledge of the Company, each is in full force and effect, and none of the other parties theretoCompany or any Company Subsidiary or, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice any other party thereto is, or lapse of time would constitute a material breach or is alleged in writing to be, in violation, default or permit termination, modification, or acceleration, breach in any material respect under the agreement terms of any such Contract. The Company has made available to Purchaser prior to the date hereof true and no party thereto has repudiated any provision correct copies of such contractall Material Contracts, including all amendments and supplements thereto.
Appears in 2 contracts
Sources: Merger Agreement (Erie Shores Emergency Physicians, Inc.), Merger Agreement (Team Health Inc)
Contracts. Except (a) As of the date of this Agreement, each of the Company’s “material contracts” (as Previously Discloseddefined in Item 601(b)(10) of Regulation S-K promulgated by the SEC) (each, neither a “Filed Company Contract”) has been filed with the SEC.
(b) Section 4.14(b) of the Company nor Disclosure Schedule sets forth, as of the date of this Agreement, a true and complete list of the following types of Contracts to which the Company or any Company Subsidiary is a party to any contracts or agreementsas of the date of this Agreement:
(1i) relating each Contract that restricts in any material respect the ability of the Company or any Company Subsidiaries to indebtedness for borrowed moneycompete in any material line of business or geographic area and that is material to the Company and the Company Subsidiaries, letters taken as a whole;
(ii) each Contract pursuant to which any amount of credit, capital lease obligations, obligations secured by a Lien Indebtedness of the Company or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoingCompany Subsidiaries in excess of $2,000,000 is outstanding or may be incurred by its terms, but other than any such Contract solely between or 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 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 event entity or business enterprise other than the Company Subsidiaries or securities of a publicly-traded company held for investment by the Company or any Company Subsidiaries;
(iv) other than any Contracts filed as exhibits (including exhibits incorporated by reference) to any Filed Company SEC Documents), each material Contract between the Company or any of its Subsidiaries, on the one hand, and, on the other hand, any (A) present executive officer or director of either the Company or any of the Company Subsidiaries, (B) record or beneficial owner of more than 5% of the shares of Common Stock outstanding as of the date of such Contract, or (C) to the Knowledge of the Company, any Affiliate of any such executive officer, director or record or beneficial owner of more than 5% of the shares of Common Stock outstanding as of the date hereof (other than the Company or any of the Company Subsidiaries);
(v) each Contract relating to the disposition or acquisition by the Company or any of the Company Subsidiaries of any material business or any material amount of assets outside the ordinary course of business, in each case, with material obligations remaining to be performed after the date of this Agreement;
(vi) 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 $3,000,000 in the aggregate;
(vii) other than Contracts described in the foregoing Section 4.14(b)(vi), any Contract that obligates the Company or any of the Company Subsidiaries to make any loans, advances or capital contributions to, or investments in, any Person (other than the Company or any Company Subsidiary), in each case, in excess of $2,000,000;
(viii) any Contract that grants any right of first refusal, right of first offer or similar right with respect to any securities, material assets, material rights or material properties of the Company or any Company Subsidiary;
(ix) any Contract (each a “Management Agreement”) whereby the Company or any Company Subsidiary manages any material real property owned or partially owned by a third party and to which the Company or any Company Subsidiary is a party or by which any of them is bound; and
(x) any Contract with a supplier of the Company or any Company Subsidiary (excluding trade payablesinsurance providers and providers of legal services) that represented at least $600,000 in total spend by the Company and the Company Subsidiaries, securities transactions on a consolidated basis, during the twelve (12)-month period ended April 30, 2019, other than purchase orders, sales orders and brokerage agreements arising similar Contracts.
(c) The Company has made available to Parent prior to the date of this Agreement a complete and correct copy of each Material Contract (including all amendments, modifications, extensions, and renewals thereto and waivers thereunder) as in effect on the date of this Agreement. Except as would not be material to the Company and the Company Subsidiaries, taken as whole, (i) each 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 or similar Laws affecting creditors’ rights generally and by general principles of equity, (ii) each such Material Contract is in full force and effect and (iii) none of the Company or any of the Company Subsidiaries is (with or without notice or lapse of time, or both) in breach or default under any such Material Contract and, to the Knowledge of the Company, no other party to any such Material Contract is (with or without notice or lapse of time, or both) in breach or default thereunder, except, in the case of clauses (i) or (ii), with respect to any Material Contract which expires by its terms (as in effect as of the date hereof) or which is terminated in accordance with the terms thereof by the Company in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $100,000, except for those issued in the ordinary course of business;
(2) that constitutes a collective bargaining or other arrangement with any labor union;
(3) that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(4) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person;
(5) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(6) limiting the ability of the Company or any of the Company Subsidiaries to engage, in any material respect, in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(7) that is a settlement, conciliation or similar agreement, the performance of which will involve payment after the First Closing Date of consideration in excess of $100,000;
(8) that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000);
(9) that concerns the sale or acquisition of any material portion of the Company’s business;
(10) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability in excess of $100,000 and which, in each case, can. Except as would not be cancelled by the Company without penalty or without more than 90 days’ notice;
(12) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking; and
(13) any other contract, agreement or understanding material to the Company or any of the Company Subsidiaries or their respective operations. Each Contract of a type Previously Disclosed above to this Section 2.2(t) (collectively, the “Material Contracts”), is (i) legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (ii) is in full force and effect and enforceable in accordance with its terms and (iii) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Company’s Knowledge, any other party thereto is in default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to taken as whole, the Knowledge Company has not received, as of the Companydate of this Agreement, each of the other parties theretoany notice in writing from any Person that such Person intends to terminate, have performed in all material respects all material obligations required to be performed by them under each or not renew, any Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the agreement and no party thereto has repudiated any provision of such contract.
Appears in 2 contracts
Sources: Merger Agreement (Vail Resorts Inc), Merger Agreement (Peak Resorts Inc)
Contracts. (a) Except as Previously Discloseddisclosed in the SEC Reports filed with or furnished to the SEC on or after June 14, 2011 or as set forth in Section 3.16(a) of the Company Disclosure Letter, as of the date of this Agreement, neither the Company nor any Company Subsidiary of its Subsidiaries is a party to any contracts or agreementsbound by:
(1i) any agreement which the Company or any of its Subsidiaries was required to file as an exhibit under Item 601(b)(10) of Regulation S-K under the Exchange Act or to disclose on a Current Report on Form 8-K that has not been so filed or disclosed;
(ii) any agreement or arrangement that limits or otherwise restricts in any material respect the Company or any of its Affiliates or any successor thereto, or that could, after the Effective Time, limit or restrict in any material respect the Surviving Corporation or any of its Affiliates or any successor thereto, from engaging or competing in any line of business or in any geographic area in any manner or restricting the Company or any of its Subsidiaries from freely setting prices for its products (including “most favored customer” pricing provisions);
(iii) any other agreement pursuant to which the Company or any of its Subsidiaries is required to pay or is scheduled to receive (assuming full performance pursuant to the terms thereof) $150,000 or more during the 12-month period following the date of this Agreement;
(iv) with respect to a joint venture, partnership, limited liability company or other similar agreement or arrangement, any agreement or arrangement relating to indebtedness the formation, creation, operation, management or control of any partnership or joint venture that is material to the business of the Company and its Subsidiaries, taken as a whole;
(v) any indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage, trust deed or other written agreement for borrowed or with respect to the borrowing of money, letters a line of credit, any currency exchange, commodities or other hedging arrangement, or a leasing transaction of a type required to be capitalized in accordance with GAAP;
(vi) any written agreement under which the Company or any of its Subsidiaries has advanced or loaned any other Person amounts in the aggregate exceeding $25,000;
(vii) any agreement or arrangement involving the acquisition from another Person or disposition to another Person, directly or indirectly (by merger, license or otherwise), of assets or capital lease obligationsstock or other equity interests of another Person (A) for aggregate consideration under such contract (or series of related contracts) in excess of $100,000 or (B) that contain representations, warranties, covenants, indemnities or other obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees indemnification, “earn-out” or other contingent obligations), that are still in respect effect and, individually, would reasonably be expected to result in payments by the Company or any of its Subsidiaries in excess of $100,000 (in the case of each of clause (A) and (B), other than acquisitions or dispositions of inventory in the ordinary course of business);
(viii) any contracts (or a series of related contracts) for the purchase of materials, supplies, goods, services, equipment or other assets providing for either (A) annual payments by the Company and its Subsidiaries of $150,000 or more or (B) aggregate payments by the Company and its Subsidiaries of $200,000 or more, in each case other than (I) those that can be terminated by the Company or any of its Subsidiaries on less than thirty-one (31) days’ notice without payment by the Company or any Subsidiary of any of material penalty and (II) contracts entered into by the foregoing, but in any event excluding trade payables, securities transactions Company and brokerage agreements arising its Subsidiaries in the ordinary course of business consistent with past practice;
(ix) any contracts that are sales, intercompany indebtedness distribution or other similar contracts providing for the sale by the Company or any Subsidiary of materials, supplies, goods, services, equipment or other assets that provide for either (a) annual payments to the Company and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess its Subsidiaries of $100,000150,000 or more or (b) aggregate payments to the Company and its Subsidiaries of $200,000 or more, except for in each case other than (I) those issued that can be terminated by the Company or any of its Subsidiaries on less than 61 days’ notice without payment by the Company or any Subsidiary of any material penalty and (II) contracts entered into in the ordinary course of businessbusiness consistent with past practice;
(2x) any agreement or arrangement that constitutes would prohibit or materially delay or have a collective bargaining or other arrangement with any labor unionMaterial Adverse Effect on the Merger and the transactions contemplated hereby;
(3xi) that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-Kany contract relating to any currency hedging;
(4xii) any agreement or arrangement prohibiting the payment of dividends or distributions in respect of the capital stock of the Company or any of its wholly owned Subsidiaries, prohibiting the pledging of the capital stock of the Company or any wholly owned Subsidiary of the Company or prohibiting the issuance of any guaranty by the Company or any wholly owned Subsidiary of the Company;
(xiii) any license agreements from which the Company and its Subsidiaries, taken as a whole, have received or paid $150,000 or more during the 12-month period ending with the most recent month end preceding the date of this Agreement, pursuant to which the Company or any of its Subsidiaries licenses in Intellectual Property or licenses out Intellectual Property owned by the Company or its Subsidiaries;
(xiv) any written agreement that provides for the payment, increase or vesting of any benefits or compensation in connection with the Merger and the transactions contemplated hereby;
(xv) any written agreement (A) that provides compensation, severance or other benefits or rights to any individual (including to any officer, director, employee or consultant) who currently receives annual compensation from the Company and/or any of its Subsidiaries of more than $100,000 or (B) pursuant to which the Company is or may become obligated to make any bonus or similar payment (whether in the form of cash or equity securities but excluding payments constituting base salary) to any individual (including to any officer, director, employee or consultant) who currently receives annual compensation from the Company and/or any of its Subsidiaries of more than $100,000;
(xvi) Any written agreement that contains a lease put, call, collar, 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 Person;
(xvii) any material settlement agreement or similar written agreement and any settlement agreement or similar written agreement with a Governmental Entity, in each case, under which the Company or any of the Company its Subsidiaries is lessee ofhas continuing obligations, liabilities or holds or operates, any property owned by any other Personduties;
(5xviii) any written agreement that is a lease grants exclusive rights, rights of refusal, rights of first negotiation or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits similar rights to any Person or that limits or purports to hold or operate, limit in any property owned or controlled by the Company or any of the Company Subsidiaries;
(6) limiting material respect the ability of the Company or any of the Company Subsidiaries its Affiliates to engageown, in operate, sell, transfer, pledge or otherwise dispose of any material respect, in any line of business asset or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Personbusiness;
(7xix) that any written agreement relating to the sale, issuance, grant, exercise, award, purchase, repurchase or redemption of any shares of its capital stock or other securities or any options, warrants or other rights to purchase or otherwise acquire any such shares of capital stock, other securities or options, warrants or other rights therefor, except for those written agreements in substantially the form of the standard agreements evidencing Stock Options or Company Awards provided or made available to Parent;
(xx) any written agreement under which the Company has granted any Person any registration rights or under which any Person has granted the Company any registration rights; or
(xxi) any other written agreement or group of related written agreements with the same party or group of affiliated parties (other than this Agreement or agreements between the Company and any of its Subsidiaries or between any of the Subsidiaries of the Company) under which any party to such written agreement or group of related written agreements is a settlementobligated to make payments (whether fixed, conciliation contingent or similar agreement, the performance of which will involve payment after the First Closing Date of consideration otherwise) in excess of $100,000;150,000 per annum or $250,000 during the life of the written agreement or group of written agreements.
(8) that relates to Intellectual Property Rights (other than a license granted b) Except for guarantees related to the Indebtedness relating to any written agreement set forth in Section 3.16(a)(v) above, neither the Company for commercially available software licensed on standard terms nor any of its Subsidiaries is a party to any written agreement of guarantee, support, or assumption with a total replacement cost respect to the obligations, liabilities (whether accrued, absolute, contingent or otherwise) or indebtedness of less than $100,000);any other Person.
(9c) that concerns Except as set forth in the sale Company Financial Statements, neither the Company nor any of its Subsidiaries is a party to any written agreement for or acquisition relating to the employment by it of any material portion director, employee or officer or other type of written agreement with any of its directors or officers that is not terminable by it without cost or other liability, including any written agreement requiring it to make a payment to any director, employee or officer as a result of the Company’s business;Merger, any transaction or any written agreement that is entered into in connection with this Agreement.
(10d) that concerns Except as set forth in the Company Financial Statements, neither the Company nor any of its Subsidiaries is a partnership party to any written agreement in which its officers, directors, employees or joint venture;shareholders or any members of their immediate families is directly or indirectly interested (whether as a party or otherwise), including, without limitation, any written agreements relating to loans to officers, directors, employees or shareholders or any members of their immediate families.
(11e) involving aggregate consideration liability All Company Contracts are in excess of $100,000 and which, written form or summarized in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice;
(12Section 3.16(e) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking; and
(13) any other contract, agreement or understanding material to the Company or any of the Company Subsidiaries Disclosure Letter. The Company has delivered or their respective operations. Each Contract made available to Parent a true, correct and complete written copy of a type Previously Disclosed above to this Section 2.2(t) (collectivelyeach Company Contract, the “Material Contracts”), is (i) legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (ii) is in full force and effect and enforceable in accordance with its terms and (iii) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated by the Transaction Documentsincluding all amendments thereto. Neither the Company nor any of its Subsidiaries is in material default under any Company Contract and no event has occurred with respect to the Company Subsidiariesor any of its Subsidiaries or, nor to the Company’s Knowledge, with respect to any other party thereto is in contracting party, that (with or without the lapse of time or the giving of notice, or both) could reasonably be expected to (i) cause a material default under any Company Contract or (ii) give any party (A) the right to accelerate the maturity or performance of any material obligation of the Company or any of its Subsidiaries under any Company Contract, or (B) the right to cancel or terminate any Material Contract. No benefits under any Material Contract will be increasedEach of the Company Contracts is, and no vesting of any benefits under any Material Contract will be accelerated, by after the occurrence of any consummation of the transactions contemplated by will continue to be, in full force and effect and is the Transaction Documentsvalid, nor will the value of any binding and enforceable obligation of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company its Subsidiaries, and and, to the Knowledge of the Company, each of the other parties thereto, have performed except that (x) such enforcement may be subject to applicable bankruptcy, reorganization, insolvency, moratorium or other similar Laws, now or hereafter in all material respects all material obligations required effect, affecting creditors’ rights generally and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to be performed by them under each Material Contract, equitable defenses and to the Knowledge discretion of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the agreement and no party thereto has repudiated court before which any provision of such contractproceeding therefor may be brought.
Appears in 2 contracts
Sources: Merger Agreement (Frederick's of Hollywood Group Inc /Ny/), Merger Agreement (FOHG Holdings, LLC)
Contracts. (a) Except as Previously Disclosedset forth on Schedule 4.10(a), neither no entity within the Company nor any Company Subsidiary Group is a party to any contracts or agreements:
(1) relating to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured bound by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoingfollowing (each a “Material Contract”):
(i) any Contract that grants a power of attorney, but agency or similar authority to another Person;
(ii) any Contract to lend or advance to, invest in, or guarantee any indebtedness, obligation or performance of, or indemnify any Person;
(iii) any Contract relating to the employment of any Person or their compensation in connection with such employment, including with respect to profit sharing, deferred compensation, severance or similar Contract;
(iv) any collective bargaining or similar labor agreement or Contract
(v) any Contract for the use or occupancy of real property;
(vi) any partnership, joint venture or strategic alliance agreement;
(vii) any agreement of surety, guarantee or indemnification with respect to which any member of the Group is the obligor;
(viii) any Contract (including any purchase orders pursuant to a master services agreement) pursuant to which the Group is entitled or expected to receive aggregate payments of $1,000,000 or more;
(ix) any Contract pursuant to which the Group is obligated or expected to make payments of $500,000 or more;
(x) any Contract limiting the freedom of such entity within the Group from engaging in any event excluding trade payablesbusiness including any non-competition agreement or other restrictive covenant agreement;
(xi) except for Permitted Liens, securities transactions any Contract that contains a Restriction with respect to any asset of such entity within the Group;
(xii) any Contract relating to Indebtedness, including the Loan Agreements;
(xiii) any capitalized leases with an annual payment in excess of $50,000;
(xiv) any unexpired written bid or proposal to enter into any of the contacts identified above that is of a nature that it could, as presented, be accepted by a third party and brokerage agreements arising be thereby binding upon such entity within the Group; and
(xv) any other Contract other than purchase orders in the ordinary course course, which involves consideration or other expenditures or potential liability of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipmentsuch entity within the Group (A) in excess of $100,000250,000, except for those issued in the ordinary course of business;
(2) that constitutes a collective bargaining or other arrangement with any labor union;
(3) that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(4) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person;
(5) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(6) limiting the ability of the Company or any of the Company Subsidiaries to engage, in any material respect, in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(7) that is a settlement, conciliation or similar agreement, the performance of which will involve payment after the First Closing Date of consideration in excess of $100,000;
(8) that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000);
(9) that concerns the sale or acquisition of any material portion of the Company’s business;
(10) that concerns a partnership or joint venture;
(11B) involving aggregate consideration liability in excess performance over a period of $100,000 and which, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice;
twelve (12) that concerns any material hedgemonths, collar, option, forward purchasing, swap, derivative or similar agreement, understanding (C) not terminable upon thirty (30) days (or undertaking; andless) notice without payment by such entity within the Group.
(13b) any other contract, agreement or understanding material Except as set forth on Schedule 4.10(b) each Material Contract to which an entity within the Company or any of the Company Subsidiaries or their respective operations. Each Contract of Group is a type Previously Disclosed above party is as to this Section 2.2(t) (collectively, the “Material Contracts”), is (i) legalsuch entity, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (ii) is in full force and effect and enforceable in accordance with its terms there exists no breach by such entity, or, to the knowledge of the Sellers, any breach by the other party/parties thereto. A copy of each Material Contract identified on Schedule 4.10(a) or (b) has been delivered to the Buyer and (iii) will continue to be legalsuch copy is true, valid, binding, enforceablecorrect, and in full force and effect on identical terms following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Company’s Knowledge, any other party thereto is in default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed complete in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the agreement and no party thereto has repudiated respects. Each Contract listed on any provision of such contractSchedule hereto is on arm’s-length terms.
Appears in 1 contract
Contracts. Except as Previously Disclosed, neither (a) Section 3.15 of the Company nor Disclosure Letter lists each of the following written contracts and agreements (other than any lease of Company Subsidiary Leased Real Property) to which the Company or any of its Subsidiaries is a party to that is in effect as of the date of this Agreement (each such Contract or arrangement, together with any such contracts or agreements:arrangements entered into after the date hereof, collectively being “Material Contracts”):
(1i) relating any joint venture, partnership or strategic alliance contract or investment agreement, in each case related to indebtedness for borrowed moneythe formation, letters of creditcreation, capital lease obligationsoperation, obligations secured by a Lien management or interest rate or currency hedging agreements (including guarantees in respect control of any partnership or joint venture in which the Company or any of its Subsidiaries owns any partial interest and that is material to the business of the foregoingCompany and its Subsidiaries, but in any event excluding trade payablestaken as a whole, securities transactions and brokerage other than revenue sharing agreements arising in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $100,000, except for those issued entered into in the ordinary course of business;
(2ii) that constitutes a collective bargaining any settlement, conciliation or other arrangement with any labor union;
(3) that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(4) that is a lease or agreement under similar contract which would require the Company or any of the Company its Subsidiaries is lessee of, or holds or operates, to pay consideration of more than $25,000,000 (after taking into consideration any property owned by any other Person;
(5) that is a lease or agreement under which insurance proceeds available to the Company or any of its Subsidiary, as applicable, in respect thereof) or to satisfy any material non-monetary obligations, in each case after the Company Subsidiaries date of this Agreement;
(iii) any contract that contains any covenant limiting, to a degree that is lessor of, or permits any Person material to hold or operate, any property owned or controlled by the Company or any of the Company its Subsidiaries;
(6) limiting , the ability of the Company or any of the Company Subsidiaries its Subsidiaries, as applicable, to engage, in any material respect, engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, compete with any Person, in each case in any geographic area (excluding any contracts entered into with distributors or suppliers in the ordinary course of business);
(7iv) that is (A) for the acquisition, directly or indirectly (by merger or otherwise) of a settlementmaterial portion of the assets (other than goods, conciliation products or similar agreement, services in the performance ordinary course) or capital stock or other equity interests of which will involve payment after the First Closing Date of any Person for aggregate consideration in excess of $100,00075,000,000 and that has not closed prior to the date hereof or pursuant to which the Company or any of its Subsidiaries has continuing indemnification (other than indemnification obligations with respect to current or former directors and officers), “earn-out” or other similar contingent payment obligations that are reasonably expected to exceed $75,000,000 in the aggregate after the date hereof or (B) gives any Person the right to acquire any assets of the Company or any of its Subsidiaries (excluding ordinary course commitments to purchase goods, products or services) after the date hereof with a total consideration of more than $75,000,000;
(8) that relates to v) any license, sublicense or royalty contract under which a third party licenses any Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000);
(9) that concerns the sale or acquisition of any material portion of the Company’s business;
(10) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability in excess of $100,000 and which, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice;
(12) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking; and
(13) any other contract, agreement or understanding material to the Company or any of its Subsidiaries which would require the Company Subsidiaries or their respective operations. Each Contract of a type Previously Disclosed above to this Section 2.2(t) (collectively, the “Material Contracts”), is (i) legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (ii) is in full force and effect and enforceable in accordance with its terms and (iii) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor its Subsidiaries to the Company’s Knowledge, pay consideration of more than $125,000,000 annually (excluding any non-exclusive licenses of commercially available software or other party thereto is in default standard products under standard end-user agreements); and
(vi) all contracts evidencing any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the agreement and no party thereto has repudiated any provision of such contractAffiliate Arrangements.
Appears in 1 contract
Contracts. (a) Except (i) for this Agreement, (ii) for the Contracts filed as Previously Disclosedexhibits to the SEC Reports prior to the date hereof, (iii) for the Company Plans and Company Stock Plans or (iv) as set forth in Section 3.8 of the Company Disclosure Schedule, as of the date hereof, neither the Company nor any of its subsidiaries is party to or bound by any Contract that:
(i) contains covenants binding upon the Company Subsidiary or any of its Affiliates that materially restrict the ability of the Company or any of its Affiliates to compete in any business or in any geographic area that, in each case, are material to the Company and its subsidiaries taken as a whole as of the date of this Agreement, except for leases;
(ii) is a material partnership, joint venture or similar Contract that, in each case, is material to the Company and its subsidiaries taken as a whole as of the date of this Agreement;
(iii) under which the Company or any of its subsidiaries is liable for indebtedness in excess of $50,000,000;
(iv) expressly limits or otherwise restricts the ability of the Company or any of its subsidiaries to pay dividends or make distributions to its shareholders (excluding restrictions applicable only upon a default or event of default);
(v) by its terms calls for aggregate payments by the Company and its subsidiaries under such Contract of more than $50,000,000 over the remaining term of such Contract (other than this Agreement, Contracts subject to clause (iii) above, purchase orders for the purchase of inventory and/or equipment in the ordinary course of business and leases);
(vi) relates to the acquisition or disposition of any business (whether by merger, sale of stock, sale of assets or otherwise) for consideration in excess of $50,000,000; and
(vii) by its terms calls for aggregate payments to the Company and its subsidiaries under such Contract of more than $50,000,000 over the remaining term of such Contract (other than this Agreement or purchase orders for the purchase of inventory and/or equipment in the ordinary course of business). Each Contract (i) set forth (or required to be set forth) in Section 3.8 of the Company Disclosure Schedule, (ii) 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, or (iii) disclosed by the Company on a Current Report on Form 8-K as a “material contract” (excluding any Company Plan), is referred to herein as a “Company Material Contract”.
(b) Each of the Company Material Contracts is a legal, valid and binding obligation of, and enforceable against, the Company or the Company subsidiary that is a party thereto and, to any contracts or agreements:
(1) relating to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any the knowledge of the foregoingCompany, but each other party thereto, and is in full force and effect in accordance with its terms, subject to the Bankruptcy and Equity Exception, except (i) to the extent that any event excluding trade payables, securities transactions and brokerage agreements arising Material Contract expires or terminates in accordance with its terms in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases (ii) for telephonessuch failures to be legal, copy machinesvalid and binding or to be in full force and effect that do not have and would not reasonably be expected to have, facsimile machines and other office equipment) in excess of $100,000, except for those issued individually or in the ordinary course of business;aggregate, a Material Adverse Effect on the Company.
(2c) that constitutes a collective bargaining The Company or other arrangement with any labor union;
(3) its subsidiary that is a “material contract” within party to a Company Material Contract is in compliance with all terms and requirements of each Company Material Contract, and no event has occurred that, with notice or the meaning passage of Item 601(b)(10) of Regulation S-K;
(4) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessee oftime, or holds both, would constitute a breach or operates, any property owned by any other Person;
(5) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled default by the Company or any of the Company Subsidiaries;
(6) limiting the ability of the Company or any of the Company Subsidiaries to engage, in any material respect, in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(7) that is a settlement, conciliation or similar agreement, the performance of which will involve payment after the First Closing Date of consideration in excess of $100,000;
(8) that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000);
(9) that concerns the sale or acquisition of any material portion of the Company’s business;
(10) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability in excess of $100,000 and which, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice;
(12) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking; and
(13) any other contract, agreement or understanding material to the Company or any of the Company Subsidiaries or their respective operations. Each Contract of a type Previously Disclosed above to this Section 2.2(t) (collectively, the “Material Contracts”), is (i) legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (ii) is in full force and effect and enforceable in accordance with its terms and (iii) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Company’s Knowledge, any other party thereto is in default subsidiaries under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The such Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and and, to the Knowledge knowledge of the Company, no other party to any Company Material Contract is in breach or default (nor has any event has occurred that which, with notice or lapse the passage of time time, or both, would constitute such a material breach or default) under any Company Material Contract, except in each case where such violation, breach, default or permit terminationevent of default does not have and would not reasonably be expected to have, modificationindividually or in the aggregate, a Material Adverse Effect on the Company. Except as does not have and would not reasonably be expected to have, individually or accelerationin the aggregate, under a Material Adverse Effect on the agreement and no Company, neither the Company nor, to the knowledge of the Company, any of its subsidiaries has received written notice from any other party thereto has repudiated to a Company Material Contract that such other party intends to terminate or renegotiate in any provision material respects the terms of any such contractCompany Material Contract (except in accordance with the terms thereof).
Appears in 1 contract
Contracts. Except for Contracts listed on SCHEDULE 1.1(a)(vii) and the Licenses listed on SCHEDULE 1.1(a)(xiv) (true and complete copies of which Contracts and Licenses have been delivered to Buyer) or as Previously Disclosedotherwise set forth on SCHEDULE 2.12, neither the Company nor any Company Subsidiary Seller is not a party to or subject to any contracts of the following with respect to the Subject Assets or agreementsthe Business:
(1a) relating to indebtedness any plan or contract providing for borrowed moneybonuses, letters of creditpensions, capital lease obligationsoptions, obligations secured by a Lien stock purchases, deferred compensation, retirement payments, profit sharing, collective bargaining or interest rate the like, or currency hedging agreements any agreement with any labor union;
(including guarantees in respect b) any employment contract, contract for services, loan or advance, severance arrangement, golden parachute or the like;
(c) any contract or agreement for the purchase of any of the foregoingcommodity, but in any event excluding trade payables, securities transactions and brokerage agreements arising material or equipment except purchase orders in the ordinary course of business consistent with past practiceless than One Thousand Dollars ($1,000) each, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipmentsuch orders not exceeding Fifteen Thousand Dollars ($15,000) in excess the aggregate;
(d) any other material contracts or agreements creating any material obligations of $100,000Seller not specifically disclosed elsewhere under this Agreement or which will impose any liability or obligation on Buyer;
(e) any contract or agreement providing for the purchase of all or substantially all of its requirements of a particular product from a supplier;
(f) any contract or agreement which by its terms does not terminate or is not terminable without penalty by Seller or any successor or assign within one year after the date hereof;
(g) any contract or agreement for the manufacture, except for those issued sale or lease of its products not made in the ordinary course of business;
(2h) that constitutes any contract which, as a collective bargaining result of the execution, delivery and performance of this Agreement and each agreement, document and instrument executed and delivered by Seller pursuant to this Agreement, will give rise to or permit any third party to exercise additional rights under any contract or agreement to which Seller is a party and which is included in or related to the Subject Assets or the Assumed Liabilities, including, without limitation, any contract which provides for the transfer of any intellectual property, such as source code or other arrangement with any labor unioninformation, upon a change in control of Seller;
(3i) that is a “material contract” within the meaning any contract with any sales agent or distributor of Item 601(b)(10) products or services of Regulation S-KSeller;
(4j) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person;
(5) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(6) contract containing covenants limiting the ability freedom of the Company Seller or any of the Company Subsidiaries its assignees or successors to engage, in any material respect, compete in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Personperson or entity;
(7k) that is a settlement, conciliation any contract or similar agreement, agreement for the performance purchase of which will involve payment after the First Closing Date of consideration in excess of $100,000any fixed asset;
(8) that relates to Intellectual Property Rights l) any license agreement (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000as licensor or licensee);
(9m) that concerns any indenture, mortgage, promissory note, loan agreement, guaranty or other agreement or commitment for the sale or acquisition borrowing of any material portion of the Company’s business;money; or
(10) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability in excess of $100,000 and which, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice;
(12) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking; and
(13n) any other contractcontract or agreement with any officer, agreement employee, director or understanding material to the Company stockholder of Seller or with any of the Company Subsidiaries persons or their respective operationsorganizations controlled by or affiliated with it. Each Contract of a type Previously Disclosed above to this Section 2.2(t) (collectively, the “Material Contracts”), Seller is (i) legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (ii) is in full force and effect and enforceable in accordance with its terms and (iii) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Company’s Knowledge, any other party thereto is not in default under any Material Contract. No benefits under any Material Contract will be increasedsuch contracts, commitments, plans, agreements or licenses described in said Schedule and has no vesting knowledge of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that conditions or facts which with notice or lapse passage of time time, or both, would constitute a material breach or default or permit termination, modification, or acceleration, under the agreement and no party thereto has repudiated any provision of such contractdefault.
Appears in 1 contract
Contracts. Except as The Company has Previously DisclosedDisclosed or provided (by hard copy, neither electronic data room or otherwise) to the Investor or its representatives true, correct and complete copies of each of the following to which the Company nor or any Company Subsidiary is a party to any contracts or agreements:(each, a “Material Contract”):
(1i) any contract or agreement relating to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business consistent with past practicebusiness, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $100,000500,000, except for those issued in the ordinary course of business;
(2ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(3iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(4iv) that is a any lease or agreement under which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other PersonPerson with annual rent payments in excess of $500,000;
(5v) that is a any lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(6vi) limiting any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to engage, in any material respect, engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(7vii) that is a any settlement, conciliation or similar agreement, the performance of which will involve payment after the First Closing Date of consideration in excess of $100,000500,000;
(8) viii) any contract or agreement that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000500,000);
(9ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(10x) that concerns a any alliance, cooperation, joint venture, shareholders, partnership or joint venturesimilar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(11xi) any contract or agreement involving aggregate consideration liability annual payments in excess of $100,000 and which, in each case, 500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty or without on not more than 90 days’ notice;
(12xii) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking; and;
(13xiii) any other contractcontract or agreement with respect to the employment or service of any current or former directors, agreement officers, employees or understanding material to consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of business;
(xiv) any contract or their respective operationsagreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract of a type Previously Disclosed above to this Section 2.2(t(A) (collectively, the “Material Contracts”), is (i) legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (iiB) is in full force and effect and enforceable in accordance with its terms and (iiiC) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms in all material respects following the consummation of the transactions contemplated by the Transaction Documentsthis Agreement. Neither the Company nor any of the Company Subsidiaries, nor to the Knowledge of the Company’s Knowledge, any other party thereto is in material violation or default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documentsthis Agreement, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documentsthis Agreement. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the agreement and no party thereto has repudiated any provision of such contractMaterial Contracts.
Appears in 1 contract
Sources: Subscription Agreement (Central Pacific Financial Corp)
Contracts. Except as Previously Disclosed(a) Schedule 5.11 sets forth a correct and complete list of the following Contracts (other than Employee Plans, neither IP Licenses, Insurance Policies, Company Permits, purchase orders and Leases) to which the Seller, the Company nor or any Company Subsidiary is a party party, or by which any of them or any of their assets is bound, as of the date hereof that relates to any contracts or agreements:the Business (together with the Employee Plans, the IP Licenses, the Insurance Policies and the Leases, each a “Material Contract” and, collectively, the “Material Contracts”):
(1i) relating any Contract or group of related Contracts pursuant to indebtedness for borrowed moneywhich pursuant to which (i) consideration payable in fiscal year 2019 is likely to be more than $300,000 in the aggregate or (ii) consideration to be received in fiscal year 2019 is likely to be more than $300,000 in the aggregate;
(ii) any Contract with an employee, letters of credit, capital lease obligations, obligations secured by a Lien independent contractor or interest rate or currency hedging agreements (including guarantees in respect of any other service provider of the foregoingCompany or a Company Subsidiary with an annual remuneration (salary, but in any event excluding trade payables, securities transactions target variable compensation and brokerage agreements arising in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipmentbonus) in excess of $100,000150,000, except for excluding any offer letters entered into the Ordinary Course of Business that do not contain any material terms or grant any material rights that differ from those issued contained in the ordinary course of businessCompany’s standard form offer letter then in effect;
(2iii) that constitutes a collective bargaining or other arrangement with any labor union;
(3) that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(4) that is a lease or agreement under Contract pursuant to which the Company or any of Company Subsidiary has incurred any Indebtedness or the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Personguarantee thereof;
(5iv) any Contract that grants exclusivity or that otherwise restricts the rights or ability of the Seller, the Company or any Company Subsidiary to conduct the Business, including the ability to operate in any geographic area or line of business, solicit or hire employees or use, develop, distribute, enforce or exploit any Intellectual Property (including exclusive license grants to any Person, co-existence agreements, covenants not to ▇▇▇, and similar arrangements, but excluding general restrictions on confidentiality and employee non-solicit covenants entered into with customers and vendors in the Ordinary Course of Business);
(v) any Contract that is a lease or agreement under which the Seller (as it relates to the Business), the Company or any of the Company Subsidiaries Subsidiary is lessor of, or permits any Person third party to hold or operateoperate any, any tangible property (other than real property), owned or controlled by the Seller (as it relates to the Business), the Company or any of the Company SubsidiariesSubsidiary;
(6vi) limiting any Contract or binding term sheet relating to the ability disposition or acquisition of any material business, or any merger or business combination with respect to the Company, the Company Subsidiaries or the Business, or any completed material business acquisition or disposition by the Seller (as it relates to the Business), the Company or any Company Subsidiary within the last three (3) years, excluding any non-disclosure agreements entered into in connection therewith;
(vii) any Contract containing a “most-favored nation” clause or any similar term that provides preferred pricing or treatment;
(viii) any Contract that grants rights of first refusal, rights of first offer, rights of first negotiation or other similar rights to any Person with respect to the sale (whether by merger or otherwise) of the Equity Interests of the Company or any Company Subsidiary;
(ix) any Contract pursuant to which the Seller (as it relates to the Business), the Company or any Company Subsidiary has agreed to settle or compromise any pending or threatened Action and under which: (a) the Seller, the Company, any Company Subsidiary or the Business, as applicable, has continuing obligations or (b) equitable relief, fines or criminal penalties are imposed;
(x) any Contract under which the Seller, the Company or any Company Subsidiary has permitted any material asset (whether tangible or intangible) or property of the Company Subsidiaries or any Company Subsidiary to engage, in become subject to any material respect, in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any Encumbrance (other material respect, with any Personthan a Permitted Encumbrance);
(7xi) any Contract that is a settlementan agency, conciliation dealer, distributor, sales representative or other similar agreement, ;
(xii) any outstanding general or special powers of attorney executed by or on behalf of the performance Company or any Company Subsidiary;
(xiii) any Contract relating to any outstanding commitment for capital expenditures in excess of which will involve payment after $50,000 individually or $150,000 in the First Closing Date of consideration aggregate;
(xiv) any Contract with any Governmental Authority providing for annual payments in excess of $100,000, other than the Company Permits;
(8) xv) any Contract that relates to Intellectual Property Rights (other than a license granted to the Company provides for commercially available software licensed on standard terms with a total replacement cost any Change of less than $100,000)Control Payment;
(9xvi) that concerns any Contract under which the sale Company or acquisition of any material portion of the Company’s businessCompany Subsidiary has made advances, loans or investments currently outstanding, or would be required to make advances, loans or investments, to or in any other Person;
(10xvii) that concerns any partnership agreements, joint venture agreements, shareholder agreements, voting agreements, tax sharing agreements and any other similar agreements involving a partnership share of profits, losses, costs or joint ventureliabilities between the Company or a Company Subsidiary and a third party;
(11xviii) involving aggregate consideration liability in excess of $100,000 and which, in each case, cannot any Contract with a Person required to be cancelled by the Company without penalty or without more than 90 days’ noticelisted on Schedule 5.25;
(12xix) that concerns any material hedge, collar, option, forward purchasing, swap, derivative collective bargaining agreement or similar agreement, understanding or undertakingother Contract with any Labor Union; and
(13xx) any Contract, except for Organizational Documents, providing for indemnification of Affiliates, managers, officers or directors of the Company or any Company Subsidiary.
(b) None of the Company, any Company Subsidiary or, to the Knowledge of the Company, any other contractparty thereto is in breach of or default under, agreement or understanding has repudiated any material provision of, any Material Contract. No party to a Material Contract has terminated, modified, accelerated, reduced its obligations under or cancelled such Material Contract or any material right or obligation thereunder or, to the Knowledge of the Company, communicated to the Company or any Company Subsidiary such party’s desire or intent to do so.
(c) Each Material Contract to which the Company or a Company Subsidiary is a party (i) is a valid, legal and binding obligation of the Company Subsidiaries or their respective operations. Each Contract such Company Subsidiary, as applicable, and, to the Knowledge of a type Previously Disclosed above to this Section 2.2(t) (collectivelythe Company, the “Material Contracts”), is (i) legal, valid other parties thereto and binding on the Company and the Company Subsidiaries which are a party to such contract, (ii) is in full force and effect and effect, enforceable in accordance with its terms and (iii) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated by the Transaction Documents. Neither against the Company nor any of the or such Company SubsidiariesSubsidiary, nor to the Company’s Knowledgeas applicable, any other party thereto is in default under any Material Contract. No benefits under any Material Contract will be increasedand, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in accordance with the terms thereof, except to the extent that the enforceability thereof may be limited by the Equitable Exceptions.
(d) Prior to the date hereof, the Company has made available to the Buyer (i) accurate and complete copies each written Material Contract in each case, as amended or otherwise modified and in effect and (ii) a written summary setting forth all of the material respects all material obligations required to be performed by them under terms and conditions of each oral Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the agreement and no party thereto has repudiated any provision of such contract.
Appears in 1 contract
Contracts. Except as Previously Disclosed, neither (a) Section 3.14(a) of the Company nor Disclosure Schedule contains a complete and accurate list of all contracts (written or oral), plans, undertakings, commitments or agreements ("Contracts") of the following categories to which the Company or any Company Subsidiary of its Subsidiaries is a party to or by which any contracts or agreementsof them is bound as of the date of this Agreement:
(1A) relating with respect to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien officers with annual base compensation equal to or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $100,000: all employment contracts, except severance, change in control or similar arrangements that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment to the foregoing following either the consummation of the transactions contemplated hereby, termination of employment, or both and (B) all other contracts (that are not available to officers, directors, employees or agents generally) with any officer, director, employee or agent that provides for those issued compensation based on operating results or other financial performance of the Company;
(ii) contracts with labor unions;
(iii) material exclusive distribution agreements not terminable by the Company without penalty upon 90 days or less notice;
(iv) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments relating to the lending of money, whether as borrower, lender or guarantor, in excess of $5,000,000;
(v) Contracts containing covenants limiting the freedom of the Company or any of its Subsidiaries to engage in any line of business or compete with any Person or operate at any location which are not terminable by the Company without penalty upon 90 days or less notice;
(vi) any material Contract with any federal, state or local government other than such Contracts relating to the sales of goods in the ordinary course of business;
(2vii) that constitutes a collective bargaining other than license agreements and distribution agreements, Contracts involving annual expenditures or other arrangement with any labor unionliabilities in excess of $10,000,000 which are not terminable by the Company without penalty upon 90 days or less notice;
(3viii) that is the principal documents (excluding escrow agreements, affiliate agreements and other ancillary documents) relating to any merger, consolidation, business combination, share exchange, business acquisition, or for the purchase, acquisition, sale or disposition of any material assets of the Company or any of its Subsidiaries outside the ordinary course of business which (A)(1) involves consideration to any party in excess of $20,000,000, and (2) were entered into after January 1, 1995, or (B) under which the Company remains obligated to make "earnout" payments or other conditional payments of cash or stock based on the operating results or other financial performance of the Company or a “portion of its business; and
(ix) other than as set forth in Section 3.12 of the Company Disclosure Schedule, any other Contract to be performed after the date hereof which would be a material contract” within the meaning of contract (as defined in Item 601(b)(10) of Regulation S-K;K of the SEC). True copies of the written Contracts identified in Section 3.14(a) of the Company Disclosure Schedule (collectively with the Material Licenses, the "Company Contracts") have been delivered or made available to Acquiror.
(4b) that Except as disclosed in Schedule 3.14(a) of the Company Disclosure Schedule, as of the date of this Agreement, (i) each of the Company Contracts is a lease or agreement under which valid and binding upon the Company or any of its Subsidiaries (and, to the Company Subsidiaries Company's best knowledge, on all other parties thereto) in accordance with its terms and is lessee ofin full force and effect, (ii) there is no material breach or holds violation of or operates, any property owned by any other Person;
(5) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled default by the Company or any of the Company Subsidiaries;
(6) limiting the ability of the Company or its Subsidiaries under any of the Company Subsidiaries to engage, in any material respect, in any line of business or to competeContracts, whether by restricting territoriesor not such breach, customers violation or otherwisedefault has been waived, or in any other material respect, and (iii) no event has occurred with any Person;
(7) that is a settlement, conciliation or similar agreement, the performance of which will involve payment after the First Closing Date of consideration in excess of $100,000;
(8) that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000);
(9) that concerns the sale or acquisition of any material portion of the Company’s business;
(10) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability in excess of $100,000 and which, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice;
(12) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking; and
(13) any other contract, agreement or understanding material respect to the Company or any of the Company its Subsidiaries or their respective operations. Each Contract of a type Previously Disclosed above to this Section 2.2(t) (collectivelywhich, the “Material Contracts”), is (i) legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (ii) is in full force and effect and enforceable in accordance with its terms and (iii) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Company’s Knowledge, any other party thereto is in default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time or both, would constitute a material breach breach, violation or default default, or permit give rise to a right of termination, modification, cancellation, foreclosure, imposition of a lien, prepayment or accelerationacceleration under any of the Company Contracts, under which breach, violation or default referred to in clauses (ii) or (iii), alone or in the agreement and no party thereto has repudiated any provision of aggregate with other such contractbreaches, violations or defaults referred to in clauses (ii) or (iii), would be reasonably likely to have a Material Adverse Effect.
Appears in 1 contract
Sources: Merger Agreement (Learning Co Inc)
Contracts. Except as Previously DisclosedThe Disclosure Schedule sets forth a true and complete list of all material contracts, neither agreements and other instruments to which AIR2LAN (except for usual and ordinary contracts or purchase orders executed in the Company nor any Company Subsidiary normal course of business and which are not individually or in the aggregate adverse to AIR2LAN is a party to any contracts or agreements:
(1) otherwise relating to indebtedness or affecting any of its assets, properties or operations, including, without limitation, all written or oral, express or implied, material (more than $100,000), (a) contracts, agreements and commitments not made in the ordinary course of business; (b) purchase and supply contracts; (c) contracts, loan agreements, repurchase agreements, mortgages, security agreements, trust indentures, promissory notes and other documents or arrangements relating to the borrowing of money or for borrowed money, letters lines of credit, capital lease obligations, obligations secured by a Lien ; (d) leases and subleases of real or interest rate or currency hedging personal property; (e) agreements (including guarantees in respect and other arrangements for the sale of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising assets other than in the ordinary course of business consistent with past practiceor for the grant of any options or preferential rights to purchase any assets, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipmentproperty or rights; (f) contracts or commitments limiting or restraining AIR2LAN from engaging or competing in excess any lines of $100,000, except for those issued in the ordinary course of business;
(2) that constitutes a collective bargaining business or other arrangement with any labor union;
person, firm, or corporation; (3h) that is a “material contract” within the meaning partnership and joint venture agreements; and (i) all amendments, modifications, extensions or renewals of Item 601(b)(10) of Regulation S-K;
(4) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessee offoregoing (the foregoing contracts, or holds or operates, any property owned by any other Person;
(5) that is agreements and documents are hereinafter referred to collectively as the "Commitments" and individually as a lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(6) limiting the ability of the Company or any of the Company Subsidiaries to engage, in any material respect, in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(7) that is a settlement, conciliation or similar agreement, the performance of which will involve payment after the First Closing Date of consideration in excess of $100,000;
(8) that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000"Commitment");
(9) that concerns the sale or acquisition of any material portion of the Company’s business;
(10) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability in excess of $100,000 and which, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice;
(12) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking; and
(13) any other contract, agreement or understanding material to the Company or any of the Company Subsidiaries or their respective operations. Each Contract of a type Previously Disclosed above to this Section 2.2(t) (collectivelyCommitment is valid, the “Material Contracts”), is (i) legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (ii) is in full force and effect and enforceable against the parties thereto in accordance with its terms terms, except as such may be subject to or limited by bankruptcy, insolvency, reorganization, or other laws relating to or affecting creditors’ rights generally and by general principles of equity (iiiregardless of whether such enforceability is considered in a proceeding in equity or in law) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated by the Transaction Documentsdate hereof. Neither the Company nor any of the Company Subsidiaries, nor to the Company’s Knowledge, any other party thereto is in default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have AIR2LAN has performed in all material respects all material obligations required to be performed by them under each Material Contractit to date under, and is not in default in respect of, any Commitment, and to the Knowledge of the Company, AIR2LAN's best knowledge no event has occurred that which, with due notice or lapse of time or both, would constitute such a material breach or default. Except for customer defaults not material to AIR2LAN, to the best of AIR2LAN's knowledge, no other party to any Commitment is in default or permit terminationin respect thereof, modification, or acceleration, under the agreement and no party thereto event has repudiated any provision occurred which, with due notice or lapse of time or both, would constitute such contracta default.
Appears in 1 contract
Contracts. Except as Previously Disclosed, neither (a) Section 5.16 of the Company nor SPS Disclosure Letter lists all Contracts of the following types to which SPS or any Company Subsidiary of its Subsidiaries is a party to or by which any contracts or agreementssuch entity is bound:
(1i) relating to indebtedness Contracts with any present or former shareholder, director, officer, employee, partner, consultant or affiliate of SPS or any of its Subsidiaries;
(ii) Contracts for borrowed moneythe future purchase of, letters or payment for, supplies or products, or for the lease of credit, capital lease obligations, obligations secured any assets from or the performance of services by a Lien or interest rate or currency hedging agreements (including guarantees third party, in respect excess of any of the foregoing, but $10,000 in any event excluding trade payablesindividual case;
(iii) Contracts to sell or supply products or to perform services, securities transactions and brokerage agreements arising other than monitoring contracts entered into in the ordinary course of SPS business;
(iv) Contracts to lease to or to operate for any other party any asset;
(v) Any notes, debentures, bonds, conditional sale agreements, equipment trust agreements, letter of credit agreements, reimbursement agreements, loan agreements or other contracts for the borrowing or lending of money (including loans to or from officers, directors, partners, shareholders or affiliates of SPS), agreements or arrangements for a line of credit or for a guaranty of, or other undertaking in connection with, the indebtedness of any other Person;
(vi) Any Contracts under which any Liens exist;
(vii) Any Contracts concerning confidentiality or non- competition;
(viii) Any Contracts concerning consulting services, changes of control, or severance or termination payments;
(ix) Any Contracts with respect to payment of taxes or tax sharing;
(x) Any Contracts with respect to the promotion of the Company's or any of its Subsidiaries, business consistent with past practicethrough the Internet or the World Wide Web or otherwise through a computer network; or
(xi) Any Contract which is otherwise material to the business of SPS or any of its Subsidiaries, intercompany indebtedness and immaterial leases for telephonestaken as a whole, copy machines, facsimile machines and or under which the consequences of a default or termination could have an SPS Material Adverse Effect; and
(xii) Any other office equipment) in excess of $100,000, except for those issued Contracts not made in the ordinary course of business;.
(2b) that constitutes The contracts listed in Section 5.16 of the SPS Disclosure Letter are referred to herein as the "SPS Contracts". SPS shall deliver to Guardian prior to Closing a collective bargaining or other arrangement with correct and complete copy of each SPS Contract. Except as set forth in the SPS Disclosure Letter, neither SPS nor its Subsidiaries are in default under any labor union;
SPS Contracts (3) that is including any SPS Real Estate Leases and SPS Non-Real Estate Leases), which default could result in a “material contract” within liability on the meaning part of Item 601(b)(10) of Regulation S-K;
(4) that is a lease or agreement under which the Company SPS or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person;
(5) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(6) limiting the ability of the Company or any of the Company Subsidiaries to engage, in any material respect, in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(7) that is a settlement, conciliation or similar agreement, the performance of which will involve payment after the First Closing Date of consideration Subsidiary in excess of $100,000;
(8) that relates to Intellectual Property Rights (other than a license granted to 15,000 in any individual case, and in the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000);
(9) that concerns the sale or acquisition of any material portion of the Company’s business;
(10) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability in excess of $100,000 and which25,000. Except as set forth in the SPS Disclosure Letter, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice;
(12) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking; and
(13) any other contract, agreement or understanding material to the Company or any of the Company Subsidiaries or their respective operations. Each Contract of a type Previously Disclosed above to this Section 2.2(t) (collectively, the “Material Contracts”), is (i) legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (ii) is in full force and effect and enforceable in accordance with its terms and (iii) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company neither SPS nor any of the Company SubsidiariesSubsidiary has received any communication from, nor to the Company’s Knowledgeor given any communication to, any other party thereto indicating that SPS, such Subsidiary or such other party, as the case may be, is in default under any SPS Contract or that such contract could have an SPS Material ContractAdverse Effect. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to To the Knowledge of the CompanySPS, each none of the other parties theretoto any such SPS Contract is in default thereunder. No party is seeking renegotiation of an SPS Contract (except in the ordinary course of business) or substitute performance thereunder, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event nor has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the agreement and no any party thereto has repudiated any provision of such contractthereunder or indicated that it intends to terminate or not renew a SPS Contract.
Appears in 1 contract
Contracts. Except as Previously Disclosed, neither (a) SECTION 4.14(a) of the Company nor Disclosure Letter lists the following contracts to which any of the Company Subsidiary or the Subsidiaries is a party to any contracts or agreementsby which it is bound:
(1i) relating any contract (or group of related contracts) involving the performance of services or the purchase of goods, materials or other assets by or to the Company or any of the Subsidiaries, the performance of which will involve (A) annual payments to or from the Company and the Subsidiaries of $250,000 or more, or (B) aggregate payments (including termination penalties) to or from the Company and the Subsidiaries of $1,000,000 or more;
(ii) any contract concerning a partnership, limited liability company or joint venture;
(iii) any contract (or group of related contracts) under which it has (x) created, incurred, assumed, or guaranteed any indebtedness for borrowed money, letters of creditor any capitalized lease obligation, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $100,000500,000 or (y) imposed an Encumbrance on any of its assets, except tangible or intangible;
(iv) any contract concerning confidentiality or noncompetition or that limits or otherwise restricts the Company or any of the Subsidiaries or that would, after the Effective Time, limit or restrict Parent, the Surviving Corporation or any of the Subsidiaries or any successor thereto or any of their respective Affiliates, from engaging or competing in any line of business or in any geographic area, including any contract containing any "radius clause" applicable to markets in which the Company has operations;
(v) any contract relating to collective bargaining or employee association;
(vi) any contract for those issued the employment of any individual on a full-time, part-time, consulting, or other basis who is an officer or director of the Company or any of the Subsidiaries or any Affiliate of any of them, or that provides for annual compensation in excess of $100,000 or any severance benefits;
(vii) any contract under which the Company or any of the Subsidiaries has advanced or loaned any amount to any of its directors, officers or employees;
(viii) any contract under which the consequences of a default or termination could reasonably be expected to have a Company Material Adverse Effect;
(ix) any other contract (or group of related contracts) the performance of which involves aggregate consideration in excess of (A) $250,000 or more annually, or (B) $1,000,000 or more in the aggregate;
(x) any contract that relates to any proposed Acquisition Proposal as to which discussions have not been terminated prior to the date of this Agreement, including all commitments containing confidentiality, standstill, non-solicitation or similar provisions;
(xi) any contract to which the Company or any of the Subsidiaries has continuing indemnification obligations or potential liability;
(xii) any contract providing for the sale or exchange of, or option to sell or exchange, any Property, or for the purchase or exchange of, or option to purchase or exchange, any real estate;
(xiii) any contract for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or Equity Interests of another person for aggregate consideration in excess of $500,000, in each case other than in the ordinary course of business;
(2xiv) that constitutes a collective bargaining or other arrangement with any labor union;
(3) that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(4) that is a lease or agreement under contract pursuant to which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, manages any property owned by any other Personreal property;
(5xv) that is a lease any advertising or agreement other promotional contract providing for payment by the Company or any Subsidiary of $250,000 or more;
(xvi) any license, royalty or other contract concerning Intellectual Property (other than shrink-wrap software and databases licensed to the Company or to any of the Subsidiaries under which nonexclusive software licenses granted to end-user customers by third parties in the ordinary course of business of such third parties' businesses), such Company Disclosure Letter indicating, in the case of any such license, whether the Company or any of the Company Subsidiaries is lessor of, the licensee or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(6) limiting the ability of the Company or any of the Company Subsidiaries to engage, in any material respect, in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(7) that is a settlement, conciliation or similar agreement, the performance of which will involve payment after the First Closing Date of consideration in excess of $100,000;
(8) that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000);
(9) that concerns the sale or acquisition of any material portion of the Company’s business;
(10) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability in excess of $100,000 and which, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice;
(12) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertakinglicensor; and
(13xvii) any other contracteach amendment, agreement supplement and modification (whether written or understanding material to the Company or oral) in respect of any of the foregoing.
(b) The Company Subsidiaries or their respective operationshas made available to Parent a correct and complete copy of each written contract listed in SECTION 4.14(a) of the Company Disclosure Letter and a written summary setting forth the terms and conditions of each oral contract referred to in SECTION 4.14(a) of the Company Disclosure Letter. Each Contract With respect to each such contract (except as set forth in SECTION 4.14(a) of a type Previously Disclosed above to this Section 2.2(t) (collectively, the “Material Contracts”), is Company Disclosure Letter): (i) the contract is legal, valid valid, binding, enforceable, and binding on the Company and the Company Subsidiaries which are a party to such contract, (ii) is in full force and effect and enforceable in accordance with its terms and effect; (iiiii) the contract will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Company’s Knowledge, any other Effective Time; (iii) no party thereto is in default under any Material Contract. No benefits under any Material Contract will be increasedbreach or default, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse the passage of time or giving of notice would constitute a material breach or default default, or permit termination, modification, or acceleration, under the agreement contract; and (iv) no party thereto has repudiated any provision of such the contract.
Appears in 1 contract
Contracts. Except as Previously Disclosed, neither (a) Section 3.15(a) of the Company nor any Disclosure Schedule sets forth a complete and accurate list of all of the following Contracts to which the Company Subsidiary is a party to any contracts or agreementsa beneficiary or by which the Company or its assets are subject:
(1i) relating Contracts for the purchase or lease of materials, supplies, goods, services, equipment or other assets and that involves or would reasonably be expected to indebtedness involve aggregate annual payments by the Company in excess of $50,000;
(ii) Contracts (A) for borrowed moneythe sale by the Company of materials, supplies, goods, services, equipment or other assets, and that it involves a specified annual minimum dollar sales amount in excess of $10,000, or (B) pursuant to which the Company received payments in excess of $10,000 in the year ended December 31, 2012;
(iii) Contracts requiring the Company to purchase its total requirements of any product or service from a third party or that contain “take or pay” or other minimum purchase requirements provisions;
(iv) partnership, joint venture or similar Contracts;
(v) employment, severance, stay, bonus, termination, change in control, consulting or similar Contracts, which have outstanding financial obligations of the Company as of the date hereof;
(vi) Contracts containing covenants not to compete or other covenants restricting or purporting to restrict the right the Company or their Affiliates to engage in any line of business, acquire any property, develop or distribute any product, provide any service (including geographic restrictions) or to compete with any Person, or granting any exclusive distribution rights, in any market, field or territory;
(vii) Contracts with any Stockholder or any Affiliate or family member of any Stockholder or the Company;
(viii) notes, debentures, bonds, equipment trusts, letters of credit, capital lease obligations, obligations secured by a Lien loans or interest rate other Contracts for or currency hedging agreements evidencing Indebtedness or the lending of money;
(ix) Contracts (including guarantees in respect keepwell agreements) under which (A) any Person has directly or indirectly guaranteed Indebtedness or Liabilities of the Company or (B) the Company has directly or indirectly guaranteed Indebtedness or Liabilities of any Person (in each case other than endorsements for the purpose of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising collection in the ordinary course of business consistent with past practice);
(x) Contracts under which the Company has, intercompany indebtedness and immaterial leases directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person;
(xi) Contracts providing for telephonesindemnification of any Person with respect to Liabilities relating to any current or former business, copy machines, facsimile machines and or other office equipment) in excess asset or property of $100,000, except for those issued the Company or any predecessor Person (other than Contracts entered into in the ordinary course of business;
(2) that constitutes a collective bargaining or other arrangement with any labor union;
(3) that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(4) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person;
(5) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(6) limiting the ability of the Company or any of the Company Subsidiaries to engage, in any material respect, in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(7) that is a settlement, conciliation or similar agreement, the performance of which will involve payment after the First Closing Date of consideration in excess of $100,000;
(8) that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000);
(9xii) that concerns the sale or acquisition Contracts providing for indemnification of any material portion of the Company’s businesscurrent and former officers and directors;
(10xiii) that concerns Contracts under which there is a partnership continuing obligation to pay any “earn out” payment or joint venturedeferred or contingent purchase price or any similar payment respecting the purchase of any business or assets;
(11xiv) involving aggregate consideration liability in excess powers of $100,000 and which, in each case, cannot be cancelled by the Company without penalty attorney or without more than 90 days’ noticesimilar instruments;
(12xv) that concerns Contracts with any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertakingGovernmental Entity; andor
(13xvi) any other contract, agreement or understanding Contracts that are otherwise material to the Company or any were entered into outside the ordinary course of business and not previously disclosed pursuant to this Section 3.15(a). The Contracts required to be listed on Section 3.15(a) of the Company Subsidiaries or their respective operations. Each Contract of a type Previously Disclosed above Disclosure Schedule together with the Real Property Leases, Intellectual Property Contracts and Policies, are collectively referred to this Section 2.2(t) (collectively, herein as the “Material Company Contracts”). The Company has made available complete and accurate copies of each Company Contract (including all amendments, is modifications, extensions and renewals thereof and related notices and agreements thereto) to the Parent.
(b) (i) legal, valid and binding on the each Company and the Company Subsidiaries which are a party to such contract, (ii) Contract is in full force and effect and valid and enforceable in accordance with its terms and terms, (iiiii) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Company’s Knowledge, any other party thereto has complied with and is in default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiariescompliance with, and to the Knowledge of the Company, all other parties thereto have complied with and are in compliance with, the provisions of each Company Contract, (iii) to the Knowledge of the Company, no other parties theretoparty thereto is, have performed in all material respects all material obligations required to be performed by them under each Material default in the performance, observance or fulfillment of any obligation, covenant, condition or other term contained in any Company Contract, and the Company has not given or received notice to or from any Person relating to any such alleged or potential default that has not been cured, and (iv) other than the transactions contemplated by this Agreement, to the Knowledge of the Company, no event has occurred that which with or without the giving of notice or lapse of time would time, or both, could violate, breach, conflict with or constitute a material breach default, an event of default, or default or permit terminationan event creating any additional rights (including rights of amendment, impairment, modification, or suspension, revocation, acceleration, termination, or cancellation), impose additional obligations or result in a loss of any rights, or require a consent or the delivery of notice, under the agreement and no party thereto has repudiated any provision of such contractCompany Contract.
Appears in 1 contract
Contracts. Except of the Seller’s Disclosure Schedule contains a complete and accurate list as Previously Disclosedof the date hereof, neither and Seller has made available to Buyer true and complete copies, of: each Applicable Contract (other than purchase orders and customer orders in the Company nor ordinary course of business) that involves performance of services or delivery of goods or materials by any Company Subsidiary is a party of the Acquired Companies of an amount or value in excess of $10,000 per year; each Applicable Contract (other than purchase orders and customer orders in the ordinary course of business) that involves performance of services or delivery of goods or materials to any contracts of the Acquired Companies of an amount or agreements:
value in excess of $10,000 per year; each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (1) relating except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $10,000 and with terms of less than one year); each Applicable Contract containing covenants that in any way purport to indebtedness restrict the business activity of any of the Acquired Companies or limit the freedom of any of the Acquired Companies to engage in any line of business or to compete with any Person; each Applicable Contract for borrowed moneycapital expenditures in excess of $20,000; each written warranty, letters guaranty and or other similar undertaking with respect to contractual performance extended by any of creditthe Acquired Companies other than in the ordinary course of business; and each written amendment, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees supplement and modification in respect of any of the foregoing. To the Knowledge of Seller, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $100,000, except for those issued in the ordinary course of business;
(2) that constitutes a collective bargaining or other arrangement with any labor union;
(3) that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(4) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person;
(5) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(6) limiting the ability of the Company or any of the Company Subsidiaries to engage, in any material respect, in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(7) that is a settlement, conciliation or similar agreement, the performance of which will involve payment after the First Closing Date of consideration in excess of $100,000;
(8) that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000);
(9) that concerns the sale or acquisition of any material portion of the Company’s business;
(10) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability in excess of $100,000 and which, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice;
(12) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking; and
(13) any other contract, agreement or understanding material to the Company or any of the Company Subsidiaries or their respective operations. Each Contract of a type Previously Disclosed above to this Section 2.2(t) (collectively, the “Material Contracts”), is (i) legal, each Applicable Contract which involves annual expenditures or receivables of more than $10,000 is valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (ii) is in full force and effect and enforceable in accordance no default (or event which with its terms and (iii) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation giving of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Company’s Knowledge, any other party thereto is in default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse passage of time or both would constitute a default) exists thereunder and (ii) each Acquired Company has all Contracts necessary to conduct its business as presently conducted. There are no renegotiations of any material breach amounts paid or default or permit termination, modification, or acceleration, payable to any Acquired Company under the agreement any Applicable Contracts with any Person and no party thereto Acquired Company has repudiated any provision of received written demand for such contractrenegotiation.
Appears in 1 contract
Sources: Acquisition Agreement
Contracts. Except as Previously Disclosed(a) Part 2.14 of the Disclosure Letter contains a complete and accurate list, neither the Company nor any Company Subsidiary is a party and Seller has delivered to any contracts or agreementsBuyer true and complete copies, of:
(1i) relating each Applicable Contract that involves performance of services or delivery of goods or materials to indebtedness for borrowed moneythe Company or Okeechobee Egg of an amount or value in excess of $10,000;
(ii) each lease, letters rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of creditless than $10,000 and with terms of less than one year);
(iii) each licensing agreement or other Applicable Contract with respect to patents, capital lease obligationstrademarks, obligations secured by a Lien copyrights, or interest rate other intellectual property, including agreements with current or currency hedging agreements (including guarantees in respect former employees, consultants, or contractors regarding the appropriation or the nondisclosure of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $100,000, except for those issued in the ordinary course of businessIntellectual Property Assets;
(2iv) that constitutes each joint venture, partnership, and other Applicable Contract (however named) involving a collective bargaining sharing of profits, losses, costs, or other arrangement with any labor union;
(3) that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(4) that is a lease or agreement under which liabilities by the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by Okeechobee Egg with any other Person;
(5v) each Applicable Contract containing covenants that is a lease or agreement under which in any way purport to restrict the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(6) limiting the ability business activity of the Company or any Affiliate of the Company Subsidiaries or limit the freedom of the Company or any Affiliate of the Company to engage, in any material respect, engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, compete with any Person;
(7vi) that is a settlementeach Applicable Contract providing for payments to or by any Person based on sales, conciliation purchases, or similar agreementprofits, the performance of which will involve payment after the First Closing Date of consideration other than direct payments for goods;
(vii) each Applicable Contract for capital expenditures in excess of $100,000;
(8) that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000);
(9) that concerns the sale or acquisition of any material portion of the Company’s business;
(10) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability in excess of $100,000 and which, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice;
(12) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking25,000; and
(13viii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by the Company. Part 2.14(a) of the Disclosure Letter sets forth reasonably complete details concerning such Contracts, including but not limited to, the name, date and parties to the Contracts.
(b) Except as set forth in Part 2.14(b) of the Disclosure Letter, other than any other contract, agreement or understanding material being assigned to the Company by Seller immediately prior to the date of this Agreement, Seller (and no Related Person of Seller) does not have any rights under, and Seller does not have any obligation or liability under, any Contract that relates to the business of, or any of the Company Subsidiaries assets owned or their respective operations. Each Contract of a type Previously Disclosed above to this Section 2.2(t) (collectivelyused by, the “Material Contracts”)Company or Okeechobee Egg.
(c) Except as set forth in Part 2.14(c) of the Disclosure Letter, is (ieach Contract identified or required to be identified in Part 2.14(a) legal, valid and binding on of the Company and the Company Subsidiaries which are a party to such contract, (ii) Disclosure Letter is in full force and effect and is valid and enforceable in accordance with its terms terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and general principles of equity (iiiregardless of whether considered in a proceeding in equity or at law).
(d) will continue to be legal, valid, binding, enforceable, and Except as set forth in full force and effect on identical terms following the consummation Part 2.14(d) of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Company’s Knowledge, any other party thereto is in default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and Disclosure Letter:
(i) to the Knowledge of Seller, the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, Shareholders and to the Knowledge of the Company, no event has occurred or circumstance exists that (with or without notice or lapse of time would constitute time) may contravene, conflict with, or result in a material violation or material breach of, or give the Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Applicable Contract; and
(ii) to the Knowledge of Seller, the Shareholders and the Company, neither Seller nor the Company has given to or received from any other Person, at any time since November 30, 2005, any notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential material violation or material breach of, or default or permit terminationunder, modificationany Applicable Contract.
(e) Except as set forth in Part 2.14(e) of the Disclosure Letter, there are no renegotiations of, attempts to renegotiate, or acceleration, outstanding rights to renegotiate any material amounts paid or payable to the Company under the agreement current or completed Contracts with any Person and no party thereto such Person has repudiated any made written demand for such renegotiation.
(f) The Contracts relating to the sale, design, marketing, production or provision of such contractproducts or services by the Company have been entered into in the Ordinary Course of Business and have been entered into without the commission of any act alone or in concert with any other Person, or any consideration having been paid or promised, that is or would be in violation of any Legal Requirement.
Appears in 1 contract
Sources: Membership Interests Purchase Agreement (Cal Maine Foods Inc)
Contracts. Except as Previously Disclosed(a) SECTION 3.19(a) OF THE DISCLOSURE SCHEDULE contains a true and complete list of each of the following Contracts or other arrangements (true and complete copies or, neither if none, reasonably accurate written descriptions of which, together with all amendments and supplements thereto and all waivers of any terms thereof, have been delivered to Parent prior to the execution of this Agreement), to which the Company nor or any Company Subsidiary is a party to or by which any contracts or agreementsof their respective Assets and Properties is bound:
(1A) all Contracts (excluding Company Plans) providing for a commitment of employment or consultation services for a specified or unspecified term or otherwise relating to indebtedness for borrowed moneyemployment or the termination of employment, letters the name, position and rate of creditcompensation of each Person party to such a Contract and the expiration date of each such Contract; and (B) any written or unwritten representations, capital lease obligationscommitments, obligations secured by a Lien promises, communications or interest rate courses of conduct (excluding Company Plans and any such Contracts referred to in clause (A)) involving an obligation of the Company or currency hedging agreements any Subsidiary to make payments in any year, other than with respect to salary or incentive compensation payments in the ordinary course of business, to any employee exceeding $25,000 or any group of employees exceeding $100,000 in the aggregate;
(including guarantees ii) all Contracts with any Person containing any provision or covenant prohibiting or limiting the ability of the Company or any Subsidiary to engage in respect any business activity or compete with any Person or prohibiting or limiting the ability of any Person to compete with the Company or any Subsidiary;
(iii) all partnership, joint venture, shareholders' or other similar Contracts with any Person;
(iv) all Contracts relating to Indebtedness of the foregoingCompany or any Subsidiary in excess of $25,000 or to preferred stock that remains outstanding issued by the Company or any Subsidiary;
(v) all Contracts with suppliers, but distributors, dealers, manufacturer's representatives, sales agencies or franchisees providing for payments to or by the Company in excess of $25,000 per annum;
(vi) all Contracts relating to (A) the future disposition or acquisition of any event excluding trade payablesAssets and Properties, securities transactions and brokerage agreements arising other than dispositions or acquisitions in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and (B) any merger or other office equipment) in excess of $100,000, except for those issued in the ordinary course of businessbusiness combination;
(2vii) that constitutes a collective bargaining all Contracts between or other arrangement with any labor union;
(3) that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(4) that is a lease or agreement under which among the Company or any of Subsidiary, on the Company Subsidiaries is lessee ofone hand, and any Shareholder or holds or operates, any property owned by any Affiliate (other Person;
(5) that is a lease or agreement under which than the Company or any Subsidiary) of any Shareholder, on the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiariesother hand;
(6viii) limiting all collective bargaining or similar labor Contracts;
(ix) all Contracts that (A) limit or contain restrictions on the ability of the Company or any Subsidiary to declare or pay dividends on, to make any other distribution in respect of or to issue or purchase, redeem or otherwise acquire its capital stock, to incur Indebtedness, to incur or suffer to exist any Lien, to purchase or sell any Assets and Properties, to change the lines of business in which it participates or engages or to engage in any merger or other business combination or (B) require the Company Subsidiaries or any Subsidiary to engage, in any material respect, in any line maintain specified financial ratios or levels of business net worth or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(7) that is a settlement, conciliation or similar agreement, the performance indicia of which will involve payment after the First Closing Date of consideration in excess of $100,000;
(8) that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000);
(9) that concerns the sale or acquisition of any material portion of the Company’s business;
(10) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability in excess of $100,000 and which, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice;
(12) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertakingfinancial condition; and
(13x) all other Contracts (other than Company Plans, leases listed in SECTION 3.16(a) OF THE DISCLOSURE SCHEDULE and insurance policies listed in SECTION 3.21 OF THE DISCLOSURE SCHEDULE) that (i) involve the payment or potential payment, pursuant to the terms of any other contractsuch Contract, agreement by or understanding material to the Company or any Subsidiary of the Company Subsidiaries more than $50,000 annually (other than accounts or their respective operations. Each Contract of a type Previously Disclosed above to this Section 2.2(ttrade receivables or 20 payables) (collectively, the “Material Contracts”), is (i) legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, or (ii) is in full force and effect and enforceable in accordance with its terms and (iii) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor otherwise material to the Company’s Knowledge, any other party thereto is in default under any Material Contract. No benefits under any Material Contract will be increased, Business and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge Condition of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the agreement and no party thereto has repudiated any provision of such contract.
Appears in 1 contract
Sources: Merger Agreement (Hotjobs Com LTD)
Contracts. Except Schedule 2.9 lists all Contracts as Previously Disclosedof the date of this Agreement. For purposes of this Agreement, neither “Contracts” means all material written agreements, contracts and commitments of the following types to which the Company nor any Company Subsidiary is a party to any contracts (other than real property leases, labor or employment-related agreements:
, intellectual property licenses and insurance policies, which are provided for in Sections 2.8, 2.10, 2.11 and 2.16, respectively): (1a) joint venture and limited partnership agreements, (b) mortgages, indentures, loan or credit agreements, security agreements and other agreements and instruments relating to indebtedness for borrowed money, letters the borrowing of credit, capital lease obligations, obligations secured by a Lien money or interest rate or currency hedging agreements (including guarantees in respect extension of any of the foregoing, but credit in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) case in excess of $100,00050,000 in any one calendar year, except for those issued (c) distribution and marketing agreements involving in the ordinary course excess of business;
$50,000 of product per calendar year, (2d) other agreements, contracts and commitments that constitutes a collective bargaining or other arrangement with any labor union;
(3) that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(4) that is a lease or agreement under which are not cancelable by the Company on less than 120 days’ notice and that require payment by the Company after the date hereof of more than $100,000 in any one calendar year, (e) contracts of the Company with or for the benefit of the Seller or any of the Company Subsidiaries is lessee ofits Affiliates, (f) contracts prohibiting or holds or operates, any property owned by any other Person;
(5) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(6) limiting restricting the ability of the Company or any officer, director, shareholder or employee of the Company Subsidiaries to engage, operate in any material respect, in geographic area or to solicit any line of Person to enter into a business or to compete, whether by restricting territories, customers or otherwiseemployment relationship, or in enter into such relationship with any other material respectPerson or to solicit any Person to enter into a business or employment relationship, or enter into such relationship with any Person;
, (7g) that is a settlementcontracts pursuant to which the Company has granted any exclusive agency, conciliation marketing, sales representative relationship, franchising, consignment or similar agreementdistribution right to any third party, the performance (h) any leases, subleases or licenses, either as lessee, sublessee or licensee or as lessor, sublessor or licensor, of which will involve payment after the First Closing Date of consideration in excess of $100,000;
(8) that relates to Intellectual Property Rights any personal property (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000);
(9Intellectual Property) that concerns the sale or acquisition of any material portion of the Company’s business;
(10) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability intangibles, including capital leases, which involve annual payments in excess of $100,000 and whichwhose unexpired term as of the date hereof exceeds one (1) year, (i) agreements for capital expenditures or the acquisition of fixed assets in each caseexcess of $100,000, cannot be cancelled (j) agreements that are “all requirements” supply contracts, (k) agreements that provide for the indemnification by the Company without penalty of any Person, (l) Government Contracts involving, individually or without in the aggregate, in excess of $100,000 of product per calendar year, (m) agreements pursuant to which the Company has agreed to purchase or sell products or services at a fixed price for a period of more than 90 180 days’ notice;
, (12n) that concerns any material hedgeagreements pursuant to which the Company has attempted to hedge its position with respect to fluctuation in interest rates or commodity prices, collar, option, forward purchasing, swap, derivative (o) agreements pursuant to which the Company has agreed to provide products or services on a “most favored nations” pricing or similar agreementarrangement, understanding or undertaking; and
(13p) any other contract, agreement or understanding material to agreements requiring the production and maintenance by the Company of minimum inventories of finished products, (q) agreements providing for the consignment of goods by the Company, and (r) agreements or any series of related agreements with customers, suppliers or vendors of the Company Subsidiaries for the purchase or their respective operationssale of goods or services involving annual payments to or from the Company in excess of $250,000. Each Seller has made available to Purchaser copies of each written Contract (and all amendments and supplements thereto) which are in effect. All of a type Previously Disclosed above to this Section 2.2(t) (collectively, the “Material Contracts”), is (i) legal, Contracts are valid and binding on the Company and the Company Subsidiaries which parties thereto, are a party to such contract, (ii) is in full force and effect in all material respects and are enforceable in accordance with its their respective terms, except as such enforceability may be limited by applicable bankruptcy, reorganization, insolvency, fraudulent conveyance, moratorium, receivership or similar laws affecting creditors’ rights generally and by general principles of equity (whether considered at law or in equity). Except as set forth on Schedule 2.9, neither the Company nor, to the Knowledge of the Seller, any other party thereto, has breached any material provision of, or is in material default under the terms and (iii) will continue to be legalof any of the Contracts. Except as set forth on Schedule 2.9, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Company’s Knowledge, this Agreement shall not afford any other party thereto is in default under the right to terminate any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the agreement and no party thereto has repudiated any provision of such contract.
Appears in 1 contract
Sources: Stock Purchase Agreement (Dynacast International Inc.)
Contracts. Except as Previously DisclosedSchedule 4.16 contains a true, neither correct and complete list of the following Contracts (1) to which the Company nor is a party, (2) to which any Company Subsidiary of the Company’s Subsidiaries is a party, (3) to which the Seller or any Affiliate is a party and which relate to any contracts the Business, or agreements:
(14) relating to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of which any of the foregoingassets of the Company or its Subsidiaries are bound or affected (true, but in any event excluding trade payablescorrect and complete copies or, securities transactions and brokerage agreements arising in the ordinary course case of business consistent oral Contracts, reasonably complete and accurate written descriptions of which, together with past practiceall amendments and supplements thereto and all waivers of any terms thereof, intercompany indebtedness have been delivered to Buyer prior to the execution of this Agreement):
(a) All Contracts for employment or consultation services for a specified or unspecified term; and immaterial leases for telephonesall written or unwritten representations, copy machinescommitments, facsimile machines and promises, communications or courses of conduct (not embodied in a written Contract) creating an obligation of the Company or any of its Subsidiaries to make payments to any employee, other office equipment) in excess of $100,000, except for those issued than with respect to salary in the ordinary course of business;
(2b) that constitutes a collective bargaining or other arrangement All Contracts with any labor union;
(3) that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(4) that is a lease Person containing any provision or agreement under which the Company covenant prohibiting or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person;
(5) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(6) limiting the ability of the Company or any of its Subsidiaries to engage in any business activity or compete with any Person or limiting the ability of any Person to compete with the Company Subsidiaries to engage, in or any material respect, in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Personits Subsidiaries;
(7c) that is All Contracts establishing or relating to a settlementpartnership, conciliation joint venture, limited liability company, corporation or similar agreement, the performance of which will involve payment after the First Closing Date of consideration in excess of $100,000other legal entity;
(8) that relates to Intellectual Property Rights (d) All Contracts with insurance companies, agents or other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost producers and all powers of less than $100,000)attorney or similar grants of authority;
(9e) that concerns All Contracts relating to the sale future disposition or acquisition of any material portion of the Company’s businessassets for more than $25,000;
(10f) that concerns a partnership All collective bargaining or joint venturesimilar labor Contracts covering any employee of the Company or any of its Subsidiaries;
(11g) involving aggregate consideration liability in excess All Contracts relating to the ownership, use or licensing of $100,000 and which, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ noticeany Intellectual Property;
(12h) that concerns All Contracts with any material hedge, collar, option, forward purchasing, swap, derivative Affiliate or similar agreement, understanding with the Seller or undertaking; andany of its Affiliates;
(13i) All Contracts creating Commission Rights or which obligate the Company or any of its Subsidiaries to pay any commissions to Producers and all other contractContracts with insurance companies or Producers;
(j) All leases or subleases of real property and of Tangible Personal Property;
(k) All Contracts that (i) involve the payment or potential payment, agreement pursuant to the terms of any such Contract, by or understanding material to the Company or any of its Subsidiaries of more than $25,000 or (ii) cannot be terminated within thirty (30) calendar days after giving notice of termination without resulting in any cost or penalty to the Company or any of its Subsidiaries;
(l) All Contracts for capital expenditures under which the Company or any of its Subsidiaries has remaining obligations in excess of $25,000 each;
(m) All Contracts pursuant to which the Company or their respective operations. Each Contract any of a type Previously Disclosed above its Subsidiaries has an obligation to this Section 2.2(t) (collectivelypay any amounts in excess of $25,000 in respect of indemnification obligations, the “Material Contracts”), is purchase price adjustments or otherwise in connection with any (i) legal, valid and binding on the Company and the Company Subsidiaries which are acquisition or disposition of assets constituting a party to such contractbusiness or securities representing a controlling interest in any Person, (ii) merger, consolidation or other business combination or (iii) series or group of related transactions or events of a type specified in clauses (i) or (ii);
(n) Any mortgages, indentures, loans or credit agreements, security agreements and other Contracts relating to Indebtedness, and any other letters of credit, financing, surety, bonding or similar arrangements pursuant to which the Company or any of its Subsidiaries secures any of its obligations (including, but not limited to, insurance obligations);
(o) Any power of attorney that is currently effective and outstanding granted by or relating to the Company or any of its Subsidiaries;
(p) Any Contract providing for a payment contingent upon a change in (i) the ownership or effective control of the Company, or (ii) the ownership of a substantial portion of the assets of the Company or any of its Subsidiaries;
(q) Any other Contracts entered into outside the ordinary course of the Business or otherwise material to the operation of the Business; and
(r) Each amendment, supplement or modification (whether oral or written) in respect of any of the foregoing Contracts. All such Contracts are in full force and effect and constitute legal, valid and binding agreements, enforceable in accordance with its terms their terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization or similar laws now or hereafter in effect relating to or affecting creditors’ rights generally and to general principles of equity (iii) will continue to be legalwhether applied in a proceeding at law or in equity); and except as disclosed in Schedule 4.16, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated by the Transaction Documents. Neither neither the Company nor any of the Company Subsidiaries, its Subsidiaries nor to the Company’s Knowledge, any other party thereto to such Contract is in violation or breach of or default under any Material Contract. No benefits under any Material such Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that (or with notice or lapse of time or both, would constitute a material be in violation or breach of or default under any such Contract). Except as set forth in Schedule 4.16, such Contracts have not been amended or permit termination, modification, modified in any way (including by any prior practice or acceleration, course of dealing) and neither the Company nor any of its Subsidiaries has waived or relinquished any rights under the agreement and no party thereto has repudiated any provision of such contractContracts.
Appears in 1 contract
Sources: Stock Purchase Agreement (Penn Treaty American Corp)
Contracts. Except as Previously Disclosed(a) For purposes of this Agreement, neither each of the following shall be deemed to constitute a 'Company nor any Company Subsidiary is a party to any contracts or agreementsMaterial Contract':
(1i) any Acquired Company Contract relating to indebtedness for borrowed moneythe employment of any employee, letters and any Contract pursuant to which any of creditthe Acquired Companies is or may become obligated to make any severance, capital lease obligationstermination, obligations secured by a Lien bonus or interest rate relocation payment or currency hedging agreements any other payment (including guarantees other than payments in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment▇▇▇▇) in excess of $100,000, to any current or former employee or director,
(ii) any Acquired Company Contract relating to the acquisition, transfer, development, sharing or license of any material Proprietary Asset (except for those issued in any Acquired Company Contract pursuant to which (A) any material Proprietary Asset is licensed to the ordinary course of business;
Acquired Companies under any third party software license generally available for sale to the public, or (2B) that constitutes a collective bargaining or other arrangement with any labor union;
(3) that material Proprietary Asset is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(4) that is a lease or agreement under which the Company or licensed by any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person;
(5) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits Acquired Companies to any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(6) limiting the ability of the Company or any of the Company Subsidiaries to engage, in any material respect, in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(7) that is on a settlement, conciliation or similar agreement, the performance of which will involve payment after the First Closing Date of consideration in excess of $100,000;
(8) that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000non-exclusive basis);
(9iii) that concerns the sale or acquisition any Acquired Company Contract which provides for indemnification of any material portion of the Company’s businessofficer, director or employee;
(10iv) that concerns a any Acquired Company Contract creating or relating to any partnership or joint ventureventure or any sharing of revenues, profits, losses, costs or liabilities;
(11v) any Acquired Company Contract that involves the payment or expenditure of $100,000 or more in any 12-month period or more than $200,000 in the aggregate that may not be terminated by the applicable Acquired Company (without penalty) within sixty (60) days after the delivery of a termination notice by the applicable Acquired Company;
(vi) any Acquired Company Contract contemplating or involving aggregate (A) the payment or delivery of cash or other consideration liability in an amount or having a value in excess of $100,000 and whichin the aggregate, or (B) the performance of services having a value in each case, cannot be cancelled by excess of $100,000 in the Company without penalty or without more than 90 days’ noticeaggregate;
(12) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking; and
(13vii) any other contract, agreement or understanding material to the Acquired Company or Contract imposing any of the Company Subsidiaries or their respective operations. Each Contract of a type Previously Disclosed above to this Section 2.2(t) (collectively, the “Material Contracts”), is (i) legal, valid and binding restriction on the right or ability of any Acquired Company and the Company Subsidiaries which are a party to such contract, (iiA) is in full force and effect and enforceable in accordance compete with its terms and (iii) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Company’s Knowledge, any other party thereto is in default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the agreement and no party thereto has repudiated any provision of such contract.Person,
Appears in 1 contract
Contracts. Except as Previously DisclosedSchedule 4.9 sets forth a complete and correct list of all material written contracts, neither agreements, understandings, arrangements, purchase orders, sales orders, supply contracts, bids, leases, rental arrangements and licenses by which the Company nor Assets may be bound, complete and correct copies of which (including all amendments thereto) have been delivered to Buyer (collectively, the "Contracts"), including, without limitation, the following: (a) contracts with any Company Subsidiary is a party to current or former officer, director, employee, consultant or shareholder, (b) contracts with any labor union or organization or other organization representing any employee, (c) contracts for the sale of materials, supplies, equipment, merchandise or agreements:
services, (1d) relating to indebtedness contracts for borrowed moneythe purchase or acquisition of materials, letters of creditsupplies, capital lease obligationsequipment, obligations secured by a Lien merchandise or interest rate services, (e) licenses, royalty agreements or currency hedging similar agreements (including guarantees in respect indicating on such schedule whether Seller is the licensor or licensee thereunder), (f) warehousing, distributorship, representative, management, marketing, sales agency, printing or advertising contracts, (g) contracts for the sale of any of the foregoingAssets or for the grant to any person of any preferential rights to purchase any of the Assets, but in (h) joint venture contracts, (i) contracts under which Seller agrees to indemnify any event excluding trade payablesparty, securities transactions to guarantee or otherwise be responsible for the obligations of any other party, to share the tax liability of any party or to refrain from competing with any party, (j) loan and brokerage credit agreements, mortgages, indentures, security agreements arising in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipmentagreements relating to the borrowing of money or representing deferred purchase price, (k) in excess all agreements, arrangements, commitments and understandings of $100,000any kind or nature with any government, except for those issued its agencies or departments, (l) contracts under which any current or previous employee of Seller has agreed to refrain from competing with Seller or disclosing any confidential or proprietary information concerning the Business, or (m) any other contracts relating to the Business whether or not made in the ordinary course of business;
(2) that constitutes a collective bargaining or other arrangement with any labor union;
(3) that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(4) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person;
(5) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(6) limiting the ability of the Company or any of the Company Subsidiaries to engage, in any material respect, in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(7) that is a settlement, conciliation or similar agreement, the performance of which will involve payment after the First Closing Date of consideration in excess of $100,000;
(8) that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000);
(9) that concerns the sale or acquisition of any material portion of the Company’s business;
(10) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability in excess of $100,000 and which, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice;
(12) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking; and
(13) any other contract, agreement or understanding material to the Company or any of the Company Subsidiaries or their respective operations. Each Contract of a type Previously Disclosed above to this Section 2.2(t) (collectively, the “Material Contracts”), is (i) legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (ii) is in full force and effect and enforceable in accordance with its terms and (iii) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Company’s Knowledge, any other party thereto is in default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the agreement and no party thereto has repudiated any provision of such contract.
Appears in 1 contract
Contracts. Except as Previously Disclosed(a) Section 2.15(a) of the Disclosure Schedule (with paragraph references corresponding to those set forth below) contains a true and complete list of all of the following Contracts, neither together with all amendments and supplements thereto and all waivers or modifications of any terms thereof, and, if oral, an accurate and complete summary of the Company nor any Company Subsidiary is a party to any contracts or agreementsterms and conditions thereof:
(1i) relating all Contracts or series of related Contracts requiring aggregate payments by or to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $100,000, except for those issued in the ordinary course of business;
(2) that constitutes a collective bargaining or other arrangement with any labor union;
(3) that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(4) that is a lease or agreement under which the Company or any of the Company its Subsidiaries is lessee of, or holds or operates, any property owned by any other Personof more than $50,000;
(5ii) that is all Contracts with current directors, officers, other employees, consultants, agents, contractors, advisors or sales representatives (excluding any Employee Benefit Plan (as defined below)) (A) providing for a lease commitment of employment or agreement under which consultation services for a specified or unspecified term or otherwise relating to employment or the termination of employment, together with the name, position and rate of compensation of each person party to such a Contract and the expiration date of each such Contract; or (B) requiring the Company or any of its Subsidiaries to make severance or termination payments;
(iii) all Contracts for the Company Subsidiaries is lessor ofgrant to any person of any options, rights of first refusal, or permits preferential or similar rights to purchase any Person to hold assets, properties or operate, any property owned or controlled by securities of the Company or any of the Company its Subsidiaries;
(6iv) all Contracts with any person containing any provision or covenant prohibiting or limiting the ability of the Company or any of its Subsidiaries to engage in any business activity or compete in any geographic area or with any person, or prohibiting or limiting the ability of any person to compete with the Company or any of its Subsidiaries to engage, in any material respect, or in any line of business with the Company or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Personof its Subsidiaries;
(7v) that is a settlementall partnership, conciliation joint venture, stockholders' or other similar agreement, the performance of which will involve payment after the First Closing Date of consideration in excess of $100,000Contracts with any person;
(8) that relates vi) all Contracts relating to Intellectual Property Rights (other than a license granted to or evidencing indebtedness of the Company for commercially available software licensed on standard terms with a total replacement cost or any of less than $100,000its Subsidiaries (including mortgages, notes, capitalized lease obligations, interest rate or currency swaps, hedges or straddles or similar transactions);
(9vii) that concerns ▇▇▇ Contracts relating to marketing and all Contracts (A) with distributors, dealers, manufacturer's representatives, sales agencies or franchisees for or of the sale Company or any of its Subsidiaries or (B) pursuant to which the Company or any of its Subsidiaries has agreed to act as a distributor, dealer, manufacturer's representative, sales agent or franchisee for or of another person, setting forth, where applicable, any termination fees or other penalties which may be assessed against the Company or any of its Subsidiaries as a result of the termination of any such Contract;
(viii) all Contracts relating to (A) any past (if any of the terms thereof remain in effect) or future disposition or acquisition of any material portion of the Company’s business;
(10) that concerns a partnership assets and properties by or joint venture;
(11) involving aggregate consideration liability in excess of $100,000 and which, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice;
(12) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking; and
(13) any other contract, agreement or understanding material to the Company or any of its Subsidiaries other than dispositions or acquisitions in the Ordinary Course of Business or (B) any merger, consolidation or combination, any sale, dividend, split or other disposition of capital stock or other equity interests of the Company or any of its Subsidiaries, or any sale, dividend or other disposition of all or substantially all of the assets of the Company or any of its Subsidiaries or their respective operations. Each Contract of a type Previously Disclosed above to this Section 2.2(t) (collectively, a "Business Combination");
(ix) all Contracts (excluding Employee Benefit Plans and any Contracts disclosed pursuant to Section 2.15(a)(ii)) between or among the “Material Contracts”Company or any of its Subsidiaries, on the one hand, and any holder of securities of the Company or any of its Subsidiaries, any past or present officer, director, employee or consultant of the Company or any of its Subsidiaries, on the other hand;
(x) all Contracts that (A) limit or contain restrictions on the ability of the Company or any of its Subsidiaries 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 Security Interest, to purchase or sell any assets and properties or 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 of its Subsidiaries to maintain specified financial ratios or levels of net worth or other quantitative indicia of financial condition;
(xi) all Contracts with customers that (A) cannot be terminated or canceled by the Company or any of its Subsidiaries, as applicable, within twelve (12) weeks after the giving of notice of termination or cancellation without resulting in any cost or penalty to the Company or its Subsidiary; or (B) entitle any customer to a rebate or right of set-off, to return any product after acceptance thereof or to delay the acceptance thereof, or which vary in any material respect from Company's or any of its Subsidiaries', as applicable, standard form contract;
(xii) all agreements obligating the Company or any of its Subsidiaries to deliver maintenance services or future product enhancements;
(xiii) all Contracts under which the Company or any of its Subsidiaries has or has agreed to lease any personal property as lessee or lessor which involve annual lease payments exceeding $5,000;
(xiv) all Contracts requiring the payment to any person of a brokerage or sales commission or a finder's or referral fee (other than arrangements to pay commissions or fees to employees in the Ordinary Course of Business);
(xv) all Contracts involving any obligation or liability of the Company or any of its Subsidiaries (whether absolute, accrued, contingent or otherwise), is as surety, co-signer, endorser, co-maker, indemnitor or otherwise in respect of the obligation of any person;
(xvi) all Contracts that provide by their terms for the payment by the Company or any of its Subsidiaries of any consequential or special damages;
(xvii) all Contracts with vendors, suppliers or subcontractors that (A) cannot be terminated or canceled by the Company or any of its Subsidiaries, as applicable, within twelve (12) weeks after the giving of notice of termination or cancellation without resulting in any cost or penalty to the Company or its Subsidiary, as applicable; (B) contain an escalation clause; or (C) require the Company or any of its Subsidiaries to purchase all or substantially all of its requirements for a particular product or service from a vendor, supplier or subcontractor or to make periodic minimum purchases of a particular product or service from a vendor, supplier or subcontractor; and
(xviii) all licenses or similar Contracts for Intellectual Property, whether as licensee or licensor (or both), and any consent, coexistence, or similar agreement restricting the Company or any of its Subsidiaries from using or enforcing Intellectual Property owned by the Company or any of its Subsidiaries.
(b) Section 2.15(b) of the Disclosure Schedule lists (i) legal, valid all of the Company's and binding on its Subsidiaries' outstanding purchase orders with vendors (including the Company amount of the uninvoiced balance with respect to each such purchase order) and the Company Subsidiaries which are a party to such contract, (ii) all of the Company's and its Subsidiaries' open sale orders (including the amount of the unfilled order with respect to each such sale order), in each instance as of the date hereof.
(c) Section 2.15(c) of the Disclosure Schedule sets forth the Company's and each of its Subsidiaries' standard form contract for the sale of any product to their customers.
(d) Each Contract required to be listed in Section 2.15(a) of the Disclosure Schedule (such Contracts, together with the Leases listed in Section 2.14, are referred to collectively herein as the "Material Contracts") is valid, subsisting, in full force and effect effect, binding upon and enforceable in accordance with its terms and (iii) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated by the Transaction Documents. Neither against the Company nor any of or its Subsidiary, as the Company Subsidiariescase may be, nor to the Company’s Knowledgeand, any other party thereto is in default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each the other parties thereto in accordance with its terms, except, in the case of enforceability against the other parties thereto, have performed as such enforceability may be limited by applicable bankruptcy, insolvency or other similar laws, now or hereafter in all effect, affecting creditors' rights generally and by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law). The Company or its Subsidiary, as the case may be, is not in material respects all breach of or material obligations required default under any of the Material Contracts, nor, to be performed by them the Knowledge of Company, is any other party to any Material Contract in material breach of or material default under each such Material Contract, and nor, to the Knowledge of the Company, no event has occurred that does any condition exist that, with notice or without notice, lapse of time would or the happening or occurrence of any other event, could result in a material breach of or constitute a material breach default under any Material Contract. The Company has furnished to the Parent prior to the execution and delivery of this Agreement true and complete copies of all Material Contracts.
(e) Section 2.15(e) of the Disclosure Schedule lists each contractual obligation, contingent or default or permit terminationotherwise, modificationof the Company (including milestone payments, earn-out payments, defined purchase price payments, or accelerationother future payment obligations, but excluding royalty fees payable under commercial contracts entered into in the agreement and no Ordinary Course of Business) for future payments created or arising under any purchase or sale agreement, or other binding understanding or arrangement, or otherwise with respect to any assets or other property or right acquired, to be acquired or proposed to be acquired by the Company or any of its Subsidiaries.
(f) As used in this Agreement, "Contract" means any contract, agreement, instrument, commitment, license, bond, mortgage, note, indenture, or other binding arrangement, whether written or oral, to which the Company or any of its Subsidiaries is a party thereto has repudiated or by which any provision of such contracttheir respective assets, properties or securities are bound.
Appears in 1 contract
Sources: Merger Agreement (Gsi Lumonics Inc)
Contracts. (a) There have been made available to Parent true, correct and complete copies of all of the following contracts to which Company or any of its Subsidiaries is a party or by which any of them is bound as of the date of this Agreement (collectively, the "Material Contracts"): (i) contracts with any director of the Company, material contracts (other than those terminable at will without penalty) with any current officer of the Company or any of its Subsidiaries and employment, severance or termination agreements with any executive officer of the Company or any of its Subsidiaries; (ii) contracts (A) for the sale (other than completed sales) of material assets of the Company or any of its Subsidiaries, other than contracts entered into in the ordinary course of business or (B) for the grant to any person of any preferential rights to purchase any of its assets; (iii) contracts which restrict the Company or any of its Subsidiaries from competing in any line of business or with any person in any geographical area, other than those the performance or breach of which could not, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect; and (iv) indentures, credit agreements, security agreements, mortgages, guarantees, promissory notes and other contracts relating to the borrowing of money, other than (A) any of the foregoing with respect to indebtedness to any Person of less than $5.0 million, (B) intercompany loans or guarantees between the Company and any of its Subsidiaries or between any such Subsidiaries or for the benefit of, or guaranteeing or securing obligations of, the Company or a Subsidiary of the Company and (C) security agreements covering personal property that are not individually or in the aggregate material to the Company and its Subsidiaries, taken as a whole.
(b) Except as Previously Disclosedspecified in Section 3.14 of the Company Disclosure Letter, 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 subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity), except where the failure of such Material Contracts to be in full force and effect or to be legal, valid, binding or enforceable against the Company and/or its Subsidiaries has not had and could not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except as specified in Section 3.14 of the Company Disclosure Letter, neither the Company nor any Company Subsidiary is a party to any contracts or agreements:
(1) relating to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $100,000, except for those issued in the ordinary course of business;
(2) that constitutes a collective bargaining or other arrangement with any labor union;
(3) that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(4) that is a lease or agreement under which the Company or any of the Company its Subsidiaries is lessee of, in breach or holds or operates, any property owned by any other Person;
(5) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(6) limiting the ability of the Company or any of the Company Subsidiaries to engage, default in any material respect, in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(7) that is a settlement, conciliation or similar agreement, the performance of which will involve payment after the First Closing Date of consideration in excess of $100,000;
(8) that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000);
(9) that concerns the sale or acquisition of any material portion of the Company’s business;
(10) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability in excess of $100,000 and which, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice;
(12) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking; and
(13) any other contract, agreement or understanding material to the Company or any of the Company Subsidiaries or their respective operations. Each Contract of a type Previously Disclosed above to this Section 2.2(t) (collectively, the “Material Contracts”), is (i) legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (ii) is in full force and effect and enforceable in accordance with its terms and (iii) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Company’s Knowledge, any other party thereto is in default under any Material Contract. No benefits respect under any Material Contract will be increasednor, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the is any other parties thereto, have performed party to any Material Contract in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default thereunder in any material respect, except for such breaches or permit terminationdefaults that have not had and could not, modificationindividually or in the aggregate, or acceleration, under the agreement and no party thereto has repudiated any provision of such contractreasonably be expected to have a Company Material Adverse Effect.
Appears in 1 contract
Contracts. Except as Previously Disclosedfor this Agreement, neither each Company Benefit Plan and each Company Benefit Agreement, Section 3.01(i) of the Company nor any Disclosure Letter sets forth a true and complete list, as of the date of this Agreement, and the Company Subsidiary is a party has made available to any contracts or agreementsH&H Group true and complete copies, of:
(1i) relating each loan and credit agreement, note, debenture, bond, indenture and other similar Contract pursuant to indebtedness for borrowed money, letters which any Indebtedness of credit, capital lease obligations, obligations secured by a Lien the Company or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoingits Subsidiaries, but in any event excluding trade payableseach case, securities transactions and brokerage agreements arising in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $100,000500,000, except for those issued is outstanding, other than any such Contract between or among any of the Company and any of its Subsidiaries, any letters of credit and any trade indebtedness incurred in the ordinary course of business;
(2ii) that constitutes a collective bargaining or other arrangement with any labor union;
(3) that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(4) that is a lease or agreement under each Contract to which the Company or any of the Company its Subsidiaries is lessee ofa party entered into since November 1, 2014 for the acquisition or holds or operates, any property owned by any other Person;
(5) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled disposition by the Company or any of its Subsidiaries of properties or assets for aggregate consideration per Contract of more than $500,000, except for acquisitions and dispositions of properties and assets in the Company Subsidiaries;
ordinary course of business (6) limiting including acquisitions of supplies, acquisitions and dispositions of inventory and dispositions of equipment that is no longer used or useful in the ability operations of the Company or any of its Subsidiaries);
(iii) each Contract between the Company or any of its Subsidiaries, on the one hand, and any stockholder of the Company (other than any Affiliate of Parent) that beneficially owns 20% or more of the outstanding Company Common Stock, on the other hand;
(iv) each Contract that relates to a partnership or joint venture, in either case;
(v) any Contract granting a Lien upon any material asset of the Company or its Subsidiary, other than Permitted Liens;
(vi) each Contract containing covenants limiting the freedom of the Company or its Subsidiaries to engage, in any material respect, compete in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with geographic area or hire any Personindividual or group of individuals;
(7vii) that is a settlementexcept for Contracts entered into in the ordinary course of business with customers or suppliers, conciliation each Contract involving annual payments or similar agreement, receipts by any of the performance of which will involve payment after the First Closing Date of consideration in excess Company or its Subsidiaries of $100,000;
(8) that relates 500,000 or more with respect to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000);
(9) that concerns the sale or acquisition of any material portion of the Company’s business;
(10) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability in excess of $100,000 and which, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice;
(12) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertakingsuch Contract; and
(13viii) any other contract, agreement each Contract related to the acquisition or understanding material to disposition of assets or stock providing for “earn-outs” payable by the Company or any its Subsidiaries involving more than $500,000 in the aggregate over the term of the Company Subsidiaries or their respective operationsContract from and after the date of this Agreement. Each such Contract of a type Previously Disclosed above to this Section 2.2(t) (collectively, the “Material Contracts”), is described in clauses (i) legal, through (viii) above is referred to herein as a “Specified Contract”. Each of Specified Contract is valid and binding on the Company and or the Company Subsidiaries which are a party to such contract, (ii) is in full force and effect and enforceable in accordance with its terms and (iii) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any Subsidiary of the Company Subsidiaries, nor to the Company’s Knowledge, any other party thereto is in default under any Material Contract. No benefits under any Material Contract will be increasedand, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties party thereto, have performed and is in all material respects all material obligations required full force and effect, except for such failures to be performed valid and binding or to be in full force and effect that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. There is no default under any Specified Contract by them under each Material Contractthe Company or any of its Subsidiaries or, and to the Knowledge of the Company, by any other party thereto, and no event has occurred that with notice or the lapse of time or the giving of notice or both would constitute a material breach default thereunder by the Company or default any of its Subsidiaries or, to the Knowledge of the Company, by any other party thereto, in each case, except as would not, individually or permit terminationin the aggregate, modificationreasonably be expected to have a Material Adverse Effect. This Section 3.01(i) does not relate to Company Benefit Plans or Company Benefit Agreements, or acceleration, under which are the agreement and no party thereto has repudiated any provision subject of such contractSection 3.01(l).
Appears in 1 contract
Contracts. Except as Previously Disclosed, neither (a) Section 2.15 of the Disclosure Schedule lists the following agreements (written or oral) to which the Company nor any Company Subsidiary is a party as of the date of this Agreement, except to the extent the Company has no continuing or contingent rights or obligations under any contracts such agreement as the result of the termination or agreementsexpiration of such agreement:
(1i) relating any agreement (or group of related agreements) for the lease of personal property from or to indebtedness third parties providing for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) payments in excess of $100,000, except for those issued in the ordinary course of business10,000 per annum or having a remaining term longer than 12 months;
(2ii) any agreement (or group of related agreements) for the purchase or sale of products or for the furnishing or receipt of services (A) that constitutes calls for performance over a collective bargaining or other arrangement with any labor union;
period of more than one year, (3B) that is a “material contract” within involves more than the meaning sum of Item 601(b)(10$50,000, or (C) of Regulation S-K;
(4) that is a lease or agreement under in which the Company has granted manufacturing rights, "most favored nation" pricing provisions or marketing or distribution rights relating to any Customer Deliverables or territory or has agreed to purchase a minimum quantity of the Company Subsidiaries is lessee of, goods or holds services or operates, any property owned by any other has agreed to purchase goods or services exclusively from a certain Person;
(5iii) that is any agreement concerning the establishment or operation of a lease partnership, joint venture or limited liability company, except for any such agreement with the Buyer;
(iv) any agreement (or group of related agreements) under which it has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) involving more than $25,000 or under which it has imposed (or may impose) a Security Interest on any of its assets, tangible or intangible;
(v) any agreement for the Company disposition of any significant portion of the assets or any business of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by (other than sales of Customer Deliverables in the Company Ordinary Course of Business) or any agreement for the acquisition of the Company Subsidiariesassets or business of any other entity (other than purchases of inventory or components in the Ordinary Course of Business);
(6vi) limiting any agreement concerning confidentiality or noncompetition;
(vii) any employment or consulting agreement;
(viii) any agreement involving (A) the ability Primary Shareholder or any Affiliate of the Primary Shareholder or (B) any current or former officer, director or shareholder of the Company or any of the Company Subsidiaries to engage, in any material respect, in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Personan Affiliate thereof;
(7ix) any agreement that is a settlement, conciliation or similar agreement, the performance of which will involve payment after the First Closing Date of consideration in excess of $100,000;
(8) that relates to Intellectual Property Rights (other than a license granted to contains any provisions requiring the Company to indemnify any other Person (excluding indemnities contained in agreements for commercially available software licensed on standard terms with a total replacement cost of less than $100,000);
(9) that concerns the purchase, sale or acquisition license of any material portion products entered into in the Ordinary Course of the Company’s business;
(10) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability in excess of $100,000 and which, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice;
(12) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertakingBusiness); and
(13x) any other contract, agreement (or understanding material group of related agreements) either involving more than $50,000 or not entered into in the Ordinary Course of Business.
(b) The Company has delivered to the Company Buyer a complete and accurate copy of each agreement listed in Section 2.13 or any 2.15 of the Company Subsidiaries or their respective operationsDisclosure Schedule. Each Contract of a type Previously Disclosed above With respect to this Section 2.2(t) (collectively, the “Material Contracts”), is each agreement so listed: (i) the agreement is legal, valid valid, binding and binding on the Company enforceable and the Company Subsidiaries which are a party to such contract, (ii) is in full force and effect and enforceable in accordance with its terms and effect; (iiiii) the agreement will continue to be legal, valid, binding, enforceable, binding and enforceable and in full force and effect on identical terms immediately following the consummation of Closing in accordance with the transactions contemplated by terms thereof as in effect immediately prior to the Transaction Documents. Neither Closing; and (iii) neither the Company nor any of the Company Subsidiariesnor, nor to the Company’s Knowledge, any other party thereto is in default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge knowledge of the Company, each of the any other parties theretoPerson, have performed is in all material respects all material obligations required to be performed by them under each Material Contractbreach or violation of, or default under, any such agreement, and no event has occurred, is pending or, to the Knowledge knowledge of the Company, no event has occurred that is threatened, that, after the giving of notice, with notice or lapse of time time, or otherwise, would constitute a material breach or default or permit terminationby the Company or, modificationto the knowledge of the Company, or acceleration, any Person under the agreement and no party thereto has repudiated any provision of such contractagreement.
Appears in 1 contract
Contracts. Except as Previously Disclosed(a) Schedule 3.18(a) lists all material Contracts, neither the oral or written (collectively, “Material Contracts”) to which each Company nor any Company Subsidiary is a party to any contracts or agreementsand which are currently in effect and constitute the following:
(1i) relating to indebtedness for borrowed moneyall Contracts that require annual payments or expenses by, letters or annual payments or income to, each Company of credit, capital lease obligations, obligations secured by a Lien $100,000 or interest rate or currency hedging agreements more (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions other than standard purchase and brokerage agreements arising sale orders entered into in the ordinary course of business consistent with past practice);
(ii) all sales, intercompany indebtedness advertising, agency, lobbying, broker, sales promotion, market research, marketing or similar contracts and immaterial leases for telephonesagreements, copy machines, facsimile machines and other office equipment) in each case requiring the payment of any commissions by each Company in excess of $100,000, except for those issued in the ordinary course of business100,000 annually;
(2iii) that constitutes a collective bargaining all employment Contracts, employee leasing Contracts, and consultant and sales representatives Contracts with any current or former officer, director, employee or consultant of each Company or other arrangement with any labor unionPerson, under which each Company (A) has continuing obligations for payment of annual compensation of at least $100,000 (other than oral arrangements for at-will employment), (B) has severance or post termination obligations to such Person, or (C) has an obligation to make a payment upon consummation of the transactions contemplated hereby or as a result of a change of control of each Company;
(3iv) that all Contracts creating a joint venture, strategic alliance, limited liability company and partnership agreements to which each Company is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-Kparty;
(4v) that is a lease all Contracts relating to any acquisitions or agreement under which the Company or any dispositions of the Company Subsidiaries is lessee of, or holds or operates, any property owned assets by any other Personeach Company;
(5vi) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessor ofall Contracts for material licensing agreements, or permits any Person to hold or operateincluding Contracts licensing Intellectual Property Rights, any property owned or controlled by the Company or any of the Company Subsidiariesother than “shrink wrap” licenses;
(6vii) all Contracts relating to secrecy, confidentiality and nondisclosure agreements restricting the conduct of each Company or substantially limiting the ability freedom of the each Company or any of the Company Subsidiaries to engage, in any material respect, compete in any line of business or to compete, whether by restricting territories, customers or otherwise, with any Person or in any other material respect, with any Persongeographic area;
(7viii) that is a settlementall Contracts relating to patents, conciliation or similar agreementtrademarks, the performance service marks, trade names, brands, copyrights, trade secrets and other Intellectual Property Rights of which will involve payment after the First Closing Date of consideration in excess of $100,000each Company;
(8) that relates to Intellectual Property Rights (ix) all Contracts providing for guarantees, indemnification arrangements and other than a license granted to the Company hold harmless arrangements made or provided by each Company, including all ongoing agreements for commercially available software licensed on standard terms with a total replacement cost of less than $100,000)repair, warranty, maintenance, service, indemnification or similar obligations;
(9x) that concerns the sale all Contracts with or acquisition of pertaining to each Company to which any material portion of the Company’s business10% stockholder is a party;
(10xi) that concerns all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which each Company holds a partnership or joint venture;
leasehold interest (11including the Leases) involving aggregate consideration liability and which involve payments to the lessor thereunder in excess of $100,000 and which, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ noticeper month;
(12xii) that concerns any material hedgeall Contracts relating to outstanding Indebtedness, collarincluding financial instruments of indenture or security instruments (typically interest-bearing) such as notes, optionmortgages, forward purchasing, swap, derivative or similar agreement, understanding or undertaking; andloans and lines of credit;
(13xiii) any other contract, agreement or understanding material Contract relating to the voting or control of the equity interests of each Company or the election of directors of each Company (other than the Organizational Documents of each Company);
(xiv) any Contract not cancellable by each Company with no more than 60 days’ notice if the effect of such cancellation would result in monetary penalty to each Company in excess of $100,000 per the Company Subsidiaries terms of such contract;
(xv) any Contract that can be terminated, or their respective operations. Each Contract the provisions of a type Previously Disclosed above to this Section 2.2(t) (collectively, the “Material Contracts”), is (i) legal, valid and binding on the Company and the Company Subsidiaries which are altered, as a party to such contract, (ii) is in full force and effect and enforceable in accordance with its terms and (iii) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following result of the consummation of the transactions contemplated by the Transaction Documents. Neither the this Agreement to which each Company nor is a party; and
(xvi) any Contract for which any of the Company Subsidiariesbenefits, nor to compensation or payments (or the Company’s Knowledge, any other party thereto is in default under any Material Contract. No benefits under any Material Contract vesting thereof) will be increased, and no vesting of any benefits under any Material Contract will be accelerated, increased or accelerated by the occurrence of any consummation of the transactions contemplated by hereby or the Transaction Documents, nor amount or value thereof will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company this Agreement.
(b) Each Contract is a valid and the Company Subsidiariesbinding agreement, and is in full force and effect, and neither each Company nor, to the Knowledge best knowledge of the each Company, each of the any other parties party thereto, have performed is in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default (whether with or permit without the passage of time or the giving of notice or both) under the terms of any such Material Contract. Each Company has not assigned, delegated, or otherwise transferred any of its rights or obligations with respect to any Material Contracts, or granted any power of attorney with respect thereto or to any of each Company’s assets. No Contract (i) requires each Company 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 Purchaser or any of its Affiliates. Each Company shall, within 30 days of the date hereof, provide to Purchaser true and correct (A) fully executed copies of each written Material Contract and (B) written summaries of each oral Material Contract.
(c) None of the execution, delivery or performance by each Company of this Agreement to which each Company is a party or the consummation by each Company of the transactions contemplated hereby constitutes a default under or gives rise to any right of termination, modification, cancellation or acceleration, acceleration of any obligation of each Company or to a loss of any material benefit to which each Company is entitled under the agreement and no party thereto has repudiated any provision of such contractany Material Contract.
(d) Each Company is in compliance with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or agreements evidencing any Indebtedness.
Appears in 1 contract
Sources: Purchase Agreement (iFresh Inc)
Contracts. Except of the Seller --------- ------------ Disclosure Schedule sets forth a true and correct list, as Previously Disclosedof the date hereof, neither of each of the Company nor following to which Seller or any Company Subsidiary of its Subsidiaries is a party party, in each cased Related to any contracts or agreements:
the Business: (1a) relating to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $100,000, except for those issued contract not made in the ordinary course of business;
, including any joint venture agreements, shareholder agreements, indemnities or guarantees; (2b) that constitutes a collective bargaining contract for, or other arrangement with any labor union;
(3) that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(4) that is a lease or agreement under which the Company or setting forth any of the Company Subsidiaries is lessee of, terms or holds or operates, any property owned by any other Person;
(5) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(6) limiting the ability of the Company or any of the Company Subsidiaries to engage, in any material respect, in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(7) that is a settlement, conciliation or similar agreementconditions relating to, the performance employment or termination of which will involve payment after the First Closing Date employment of consideration any officer or employee; (c) franchise, distributorship or sales agency agreement involving annual payments in excess of $100,000;
(8) that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000);
(9) that concerns the sale U.S.$200,000 or acquisition of any material portion of the Company’s business;
(10) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability annual payments in excess of $100,000 U.S.$100,000 and whichthat is not terminable without penalty within a period of 60 calendar days; (d) contract for (i) the purchase or the sale, supply or provision, of materials, supplies, services, merchandise or equipment, (ii) research and development collaboration, (iii) Incoming IP License of Material Intellectual Property, or (iv) Outgoing IP License of Material Intellectual Property, Patents or registered trademarks and service marks, in each case, cannot be cancelled by the Company capable of being fully performed or not terminable without penalty or without more than 90 days’ notice;
within a period of 60 calendar days and involving annual payments in excess of U.S.$150,000 (12) it being understood that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking; and
(13) any other contract, agreement or understanding material to as far as the Company or agreements between any of the Company Subsidiaries Acquired Companies and Infraserv GmbH are concerned, these thresholds shall be calculated on the basis of the aggregate payments made by the Acquired Companies to Infraserv GmbH); (e) agreement for the purchase or their respective operations. Each Contract sale of a type Previously Disclosed above any of its assets, other than in the ordinary course of business, or any shares of its subsidiaries or interests in its businesses or joint ventures; (f) non-competition agreement with any Person, other than any current or former officer or employee of Seller or one of its Subsidiaries; (g) contract relating to this Section 2.2(tany indebtedness for borrowed money, guaranty, surety, line of credit or other loan or financing arrangement involving annual payments in excess of U.S.$100,000; or (h) toll manufacturing agreement involving annual payments in excess of U.S.$200,000 (those contracts required to be disclosed in such section, collectively, the “"MATERIAL BUSINESS CONTRACTS"). Seller and its Subsidiaries have performed in all material respects all of the obligations required to be performed by them to date, and are not in material default under, any of the Material Business Contracts”), is (i) legaland, valid and binding on to the Company and the Company Subsidiaries which are a Knowledge of Seller, no other party to such contract, (ii) one of the Material Business Contracts is in material default thereunder. Each Material Business Contract is in full force and effect and constitutes as of the date hereof the legal, valid and binding obligation of Seller or its Subsidiaries and, to the Knowledge of Seller, each other party thereto, enforceable in accordance with its terms and (iii) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Company’s Knowledge, any other party thereto is in default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the agreement and no party thereto has repudiated any provision of such contractrespects.
Appears in 1 contract
Contracts. Except as Previously Disclosed, neither (i) Schedule 4.1(q) to the Company nor any Disclosure Letter contains a complete and accurate list, and the Company Subsidiary is a party and the Company Sub has delivered to any contracts or agreementsParent true and complete copies, of:
(A) Each Contract that involves performance of services by the Company or the Company Sub of an amount or value in excess of $50,000;
(B) Each Contract that involves performance of services or delivery of goods or materials to the Company or the Company Sub of an amount or value in excess of $25,000;
(C) Each Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts by the Company or the Company Sub in excess of $10,000;
(D) Each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $10,000 and with terms less than one (1) year);
(E) Each Contract with any labor union or other employee representative of a group of employees relating to indebtedness wages, hours and other conditions of employment;
(F) Each Contract (however named) involving a sharing of profits, Losses, costs or liabilities by the Company or the Company Sub with any other Person;
(G) Each Contract containing covenants that in any way purport to restrict the Company's or the Company Sub's business activity or limit the freedom of the Company or the Company Sub to engage in any line of business or to compete with any Person;
(H) Each Contract providing for borrowed moneypayments to or by any Person based on sales, letters purchases or profits, other than direct payment for services;
(I) Each power of creditattorney of the Company or the Company Sub that is currently effective and outstanding;
(J) Each Contract entered into other than in the Ordinary Course of Business or that contains or provides for an express undertaking by the Company or the Company Sub to be responsible for consequential damages;
(K) Each Contract for capital expenditures in excess of $25,000;
(L) Each written warranty, capital lease obligationsguaranty or other similar undertaking with respect to contractual performance extended by the Company or the Company Sub other than in the Ordinary Course of Business;
(M) Each Contract with a Governmental Entity; and
(N) Each amendment, obligations secured by a Lien supplement and modification (whether oral or interest rate or currency hedging agreements (including guarantees written) in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $100,000, except for those issued in the ordinary course of business;.
(2ii) that constitutes a collective bargaining No Company Stockholder or other arrangement with any labor union;
(3) that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(4) that is a lease or agreement under which the Company or any Affiliate of the Company Subsidiaries is lessee ofhas or may acquire any rights under, and no Company Stockholder or holds Affiliate has or operatesmay become subject to any obligation or liability under, any property owned by any other Person;
(5) Contract that is a lease or agreement under which relates to the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(6) limiting the ability business of the Company or any the Company Sub.
(iii) Each Contract identified or required to be identified in Schedule 4.1(q)(i) of the Company Subsidiaries to engage, in any material respect, in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(7) that is a settlement, conciliation or similar agreement, the performance of which will involve payment after the First Closing Date of consideration in excess of $100,000;
(8) that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000);
(9) that concerns the sale or acquisition of any material portion of the Company’s business;
(10) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability in excess of $100,000 and which, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice;
(12) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking; and
(13) any other contract, agreement or understanding material to the Company or any of the Company Subsidiaries or their respective operations. Each Contract of a type Previously Disclosed above to this Section 2.2(t) (collectively, the “Material Contracts”), is (i) legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (ii) Disclosure Letter is in full force and effect and is valid and enforceable in accordance with its terms terms, except that (i) such enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws or judicial decisions now or hereafter in effect relating to creditors' rights generally and (iiiii) will continue the remedy of specific performance and injunctive relief may be subject to be legal, valid, binding, enforceable, equitable defenses and in full force and effect on identical terms following to the consummation discretion of the transactions contemplated by the Transaction Documents. Neither court before which any proceeding therefor may be brought.
(iv) Except as set forth on Schedule 4.1(q)(iv) to the Company nor any of Disclosure Letter,
(A) the Company Subsidiaries, nor to the Company’s Knowledge, any other party thereto is in default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company SubsidiariesSub each is, and at all times since July 1, 1999 has been, in full compliance with all applicable terms and requirements of each Contract under which the Company or the Company Sub has or had any obligation or liability or by which the Company or the Company Sub or any of the assets owned or used by the Company or the Company Sub is or was bound;
(B) to the Knowledge of the CompanyCompany and the Management Stockholders, each of other Person that has or had any obligation or liability under any Contract under which the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material ContractCompany or the Company Sub has or had any rights is, and to the Knowledge at all times since July 1, 1999 has been, in full compliance with all applicable terms and requirements of the Company, such Contract;
(C) no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of, or give the Company or the Company Sub or, to the knowledge of the Company and the Management Stockholders, any other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Contract; and
(D) neither the Company nor the Company Sub has received from any Person, at any time would constitute a material since July 1, 1999, any notice or communication (whether oral or written) regarding any actual, alleged, possible or potential violation or breach of, or default or permit terminationunder, modificationany Contract.
(v) There are no renegotiations of, attempts to renegotiate, or accelerationoutstanding rights to renegotiate, any amounts paid or payable to the Company or the Company Sub under the agreement current or completed Contracts with any Person and no party thereto such Person has repudiated any made written demand for such renegotiation.
(vi) The Contracts relating to the sale or provision of such contractservices by the Company or the Company Sub have been entered into in the Ordinary Course of Business and have been entered into without the commission of any act alone or in concert with any other Person, or any consideration having been paid or promised, that is or would be in violation of any Legal Requirement.
Appears in 1 contract
Sources: Merger Agreement (On Assignment Inc)
Contracts. Except as Previously Disclosed, neither (a) Section 4.13(a) of the Disclosure Schedules sets forth an accurate and complete list of all of the following types of Contracts (other than Contracts with respect to which no Company nor Entity will be bound or have any Liability after the Closing) to which a Company Subsidiary Entity is a party to any contracts or agreements:
(1) relating to indebtedness for borrowed moneyeach, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $100,000, except for those issued in the ordinary course of business;
(2) that constitutes a collective bargaining or other arrangement with any labor union;
(3) that is a “material contractMaterial Contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(4) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessee ofand, or holds or operates, any property owned by any other Person;
(5) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(6) limiting the ability of the Company or any of the Company Subsidiaries to engage, in any material respect, in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(7) that is a settlement, conciliation or similar agreement, the performance of which will involve payment after the First Closing Date of consideration in excess of $100,000;
(8) that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000);
(9) that concerns the sale or acquisition of any material portion of the Company’s business;
(10) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability in excess of $100,000 and which, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice;
(12) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking; and
(13) any other contract, agreement or understanding material to the Company or any of the Company Subsidiaries or their respective operations. Each Contract of a type Previously Disclosed above to this Section 2.2(t) (collectively, the “Material Contracts”), is ):
(i) legalall Contracts for the purchase, valid exchange, delivery or sale of electric power, capacity, ancillary services, transmission services, renewable energy credits or other environmental attributes generated by a Company Entity;
(ii) all interconnection Contracts for electricity;
(iii) all Contracts for construction, management, operation, maintenance of a Project;
(iv) all Contracts by or with a manufacturer or vendor of equipment owned or leased by any Company Entity for product warranty or repair with a fair market value of more than $500,000;
(v) all Contracts the performance of which by any Company Entity will involve consideration to or from such Company Entity in excess of $500,000 in any year;
(vi) all Contracts relating to the borrowing of money, the extension of credit, the granting of Liens or creating Indebtedness (or guarantying Indebtedness) in excess of $500,000;
(vii) all Contracts for investments, capital contributions, or the purchase or sale of Equity Interests in any Person;
(viii) all Contracts that require Support Obligations by or on behalf of a Company Entity in excess of $500,000;
(ix) all Contracts for the development or license of Company Intellectual Property other than generally commercially available software pursuant to a non-exclusive license or any non-exclusive Contracts with any Person to whom a Company Entity provides services;
(x) all Contracts establishing a partnership, joint venture or similar arrangement between a Company Entity and binding a third party;
(xi) all Contracts containing any material restriction or limitation on the ability of any Company Entity to compete, solicit customers or otherwise conduct any business anywhere in the world or the grant of any exclusive rights in any market, field or territory;
(xii) all Contracts that are or involve hedging, derivative, swap and similar agreements with a value in excess of $500,000;
(xiii) all Affiliate Contracts;
(xiv) all Contracts for employment of any Business Service Provider that provides for: (A) a term of employment (anything other than at-will employment); or (B) severance or other benefits upon termination;
(xv) any Contract or Employee Benefit Plan for which any of the benefits, compensation or payments will be increased, the vesting of benefits will be accelerated or a payment will be required, as a result of the consummation of the transactions set forth in this Agreement;
(xvi) any collective bargaining Contract or Contract with labor unions or representatives of employees;
(xvii) any Contract that is a subscription, option, purchase or sale, pledge, security, voting, shareholder or investor rights agreement with respect to, or that establishes the terms of, or that governs voting, transfer, consent, dividend, distribution or other rights or obligations of Persons owning, holding or having an interest in, the Equity Interests of any Company Subsidiaries which are Entity;
(xviii) any Contract with a party Governmental Authority;
(xix) all Contracts (other than those referred to such contractin Sections 4.13(a)(i), (ii), (iii) or (iv)) under which any Company Entity has either an obligation or a right to (x) purchase, sell, lease or exchange Assets (of any kind) or (y) provide or receive services of any kind, in each case involving payments by or to any Company Entity over the life of that Contract equal to or greater than $500,000;
(xx) all Contracts involving the settlement of any pending or threatened Action or Claim (or series of related Actions or Claims) which will involve (a) payments by or to any Company Entity (in excess of insurance proceeds in the case of payments by any Company Entity) equal to or greater than $500,000 or (b) injunctive or other equitable relief; and
(xxi) any other Contract that is material to the ownership or operation of a Project or any Company Entity.
(b) The Sellers have Made Available to Buyer an accurate and complete copy of each Material Contract. With respect to each Material Contract: (i) such Contract is in full force and effect and is a valid and binding obligation of the applicable Company Entity, subject to the Remedies Exceptions, and, to the Knowledge of Target Entities, each other party thereto; (ii) such Material Contract is enforceable against each applicable Company Entity, subject to the Remedies Exceptions, and, to the Knowledge of Target Entities, each other party thereto, in accordance with its terms terms; and (iii) will subject to procurement of the Required Consents, (A) upon consummation of the transactions set forth in this Agreement, shall continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following from and after the consummation Closing without penalty or other adverse consequence and (B) except as set forth on Section 4.13(b) of the transactions contemplated Disclosure Schedules, there is no default, or claim by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Company’s Knowledge, any other party thereto is in default under any Material Contract. No benefits under any a Material Contract will be increased, and no vesting counterparty of any benefits under any Material Contract will be accelerateddefault thereunder, by the occurrence of any of the transactions contemplated by the Transaction Documentsapplicable Company Entity, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiariesor, and to the Knowledge of the CompanyTarget Entities, each of the by any other parties party thereto, have performed in all material respects all material obligations required to be performed and no event has occurred which, with the passage of time or the giving of notice (or both), would constitute a default thereunder by them under each Material Contractthe applicable Company Entity, and or to the Knowledge of the CompanyTarget Entities, no event has occurred that with notice by any other party thereto, or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under or termination of a Material Contract. None of the agreement and no Company Entities has received written notice, or, to the Knowledge of Target Entities, any other notice, from any other party thereto has repudiated to any provision of Material Contract that such contractparty intends to terminate, modify or renegotiate such Material Contract in a manner that is adverse to any Company Entity.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Ormat Technologies, Inc.)
Contracts. Except as Previously Disclosed, neither (a) Section 4.10(a) of the Company nor any Disclosure Letter identifies each Company Subsidiary is Contract that constitutes a party Material Contract as of the Agreement Date. For purposes of this Agreement, each of the following Company Contracts shall be deemed to any contracts or agreementsconstitute a “Material Contract” for purposes of this Agreement:
(1i) any Company Contract that requires by its terms or is reasonably likely to require the payment or delivery of cash or other consideration by or to an Acquired Company in an amount having an expected value in excess of $400,000 in the fiscal year ending December 31, 2024 or in any single fiscal year thereafter;
(ii) any Company Contract pursuant to which (A) any Acquired Company has continuing milestone or similar contingent payment obligations, including upon the achievement of regulatory or commercial milestones or payment of royalties or other amounts calculated based upon any revenues or income of any Acquired Company, in each case, that could result in payments in excess of $100,000, and in each case, excluding indemnification and performance guarantee obligations provided for in the ordinary course of business, or (B) any Acquired Company grants or receives from any third party any license to, or covenant not to sue or other right with respect to, any material Intellectual Property (other than non-exclusive licenses entered in the ordinary course of business);
(iii) any Company Contract (A) containing exclusivity obligations or otherwise limiting the freedom or right of any Acquired Company, in any material respect, to engage in any line of business, to make use of any material Company IP or to conduct business or compete with any other Person in any location or line of business, (B) containing any “most favored nations” terms and conditions (including with respect to pricing) granted by an Acquired Company, (C) granting a third party any development (other than solely for or on behalf of the Company or its Affiliates), marketing or distribution rights with respect to any Company Product, (D) requiring any Acquired Company to purchase a minimum quantity of goods or supplies relating to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees any Company Product in respect favor of any third party or (E) containing exclusivity obligations or restrictions or otherwise materially limiting the freedom or right of an Acquired Company to sell, distribute or manufacture any products or services or any technology or other assets to or for any other Person;
(iv) any Company Contract for the lease, sublease or sub-sublease of any real property;
(v) any Company Contract constituting or relating to a joint venture, partnership, or limited liability corporation for the sharing of profits and losses, collaboration, strategic alliance or similar arrangement;
(vi) any Company Contract pursuant to which an Acquired Company is or may become obligated to (A) make any severance, termination, or similar payment to any Company Associate with an annual base compensation in excess of $200,000, except for severance, termination or similar payments that is required by applicable Laws, (B) make any change in control, retention or similar payment or award to any Company Associate, or (C) grant or accelerate the vesting of, or otherwise modify, any Company Stock Award other than accelerated vesting provided in this Agreement or the Company Equity Plan;
(vii) any Company Contract that by its express terms requires an Acquired Company, or any successor to, or an acquirer of an Acquired Company, to make any payment to another Person as a result of the foregoingexecution, delivery and performance of this Agreement (a “Change of Control Payment”) or gives another Person a right to receive or elect to receive a Change of Control Payment;
(viii) any Company Contract with any former or current Affiliate, director, executive officer (as such term is defined in the Exchange Act), holder of 5% or more of Shares, or to the Knowledge of the Company, any of their respective Affiliates (other than an Acquired Company) or immediate family members (other than, in each case, Contracts entered into in connection with employment or service with any Acquired Company);
(ix) any Company Contract entered into since January 1, 2021 that relates to the acquisition or disposition of any material business, a material amount of stock or assets of any Person or any real property (whether by merger, sale of stock, sale of assets or otherwise) but excluding (A) any material transfer agreements, services agreements, clinical trial agreements and non-exclusive licenses granted in the ordinary course of business and (B) any event excluding trade payables, securities transactions and brokerage agreements arising Company Contract that is a non-disclosure agreement (i) entered into in the ordinary course of business consistent with past practicepractice or (ii) in connection with discussions, intercompany indebtedness negotiations and immaterial leases transactions related to this Agreement or other Acquisition Proposals;
(x) any Company Contract with any academic institution or Governmental Body that either (A) provides for telephones, copy machines, facsimile machines the provision of funding to any Acquired Company for research and other office equipmentdevelopment activities involving the creation of any material Intellectual Property or (B) under which payments in excess of $100,000, except for those issued 75,000 were received by the Acquired Companies in the ordinary course most recently completed fiscal year or under which payments in excess of businesssuch amount are reasonably expected to be made in the current or any future fiscal year;
(2xi) that constitutes a collective bargaining or other arrangement with any labor union;
(3) that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(4) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person;
(5) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(6) limiting the ability of the Company or any of the Company Subsidiaries to engage, in any material respect, in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(7) Contract that is a settlement, conciliation or similar agreement, the performance of agreement with or approved by any Governmental Body pursuant to which (A) an Acquired Company will involve payment be required after the First Closing Agreement Date of consideration to pay any monetary obligations or (B) that contains material obligations or limitations on an Acquired Company’s conduct;
(xii) any Company Contract relating to Indebtedness in excess of $100,000250,000 (whether incurred, assumed, guaranteed or secured by any asset) of an Acquired Company;
(8) that relates to Intellectual Property Rights xiii) any Company Contract under which any Acquired Company has made any loan, extension of credit or capital contribution to, or other investment in, any Person (other than a license granted immaterial employee advances to non-executive officers in the Company for commercially available software licensed on standard terms with a total replacement cost ordinary course of less than $100,000business);
(9xiv) that concerns the sale or acquisition of any material portion of the Company’s business;
(10) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability in excess of $100,000 and which, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice;
(12) that concerns any material hedge, collar, option, forward purchasinghedging, swap, derivative or similar agreement, understanding or undertakingCompany Contract; and
(13xv) any other contractCompany Contract that is currently in effect and has been filed (or is required to be filed) by an Acquired Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act.
(b) As of the Agreement Date, agreement the Company has made available to Parent an accurate and complete copy of each Material Contract together with all material amendments, waivers, termination notices or understanding material other changes thereto or has publicly made available such Material Contract in the Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) database of the SEC. No Acquired Company is or, to the Company or any Knowledge of the Company Subsidiaries or their respective operations. Each Contract of a type Previously Disclosed above to this Section 2.2(t) (collectively, the “Material Contracts”), is (i) legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (ii) is in full force and effect and enforceable in accordance with its terms and (iii) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Company’s Knowledge, any other party thereto is in material breach of or material default under any Material Contract, and no Acquired Company, or, to the Knowledge of the Company, any other party thereto, has taken or failed to take any action that with or without notice, lapse of time or both would constitute a material breach of or material default under any Material Contract. No benefits under any Each Material Contract will be increasedis, with respect to the applicable Acquired Company and, to the Knowledge of the Company, the other parties thereto, legal, valid, binding, and no vesting of any benefits under any in full force and effect. Each Material Contract will be acceleratedis enforceable against, by the occurrence of any of the transactions contemplated by the Transaction Documentsand, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each Material Contract is enforceable by, the applicable Acquired Company 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 parties theretoequitable remedies. Since January 1, have performed 2021 through the Agreement Date, no Acquired Company has received any written notice regarding any violation or breach or default under any Material Contract that has not since been cured, and no party to any Material Contract has given any written notice of termination, cancellation or breach of, or dispute with respect to any Material Contract or that it intends to terminate or cancel any Material Contract. No Acquired Company has waived in all material respects all material obligations required to be performed by them writing any rights under each any Material Contract, and the waiver of which would have or be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.
(c) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, no Acquired Company has, since January 1, 2021, (i) breached or violated any Law, certification, representation, clause, provision or requirement pertaining to any Contract with a Governmental Body; (ii) been suspended or debarred from bidding on any Contract by a Governmental Body; (iii) been audited or investigated by any Governmental Body with respect to any Contract with a Governmental Body; (iv) conducted or initiated any internal investigation or made any disclosure with respect to any alleged or potential irregularity, misstatement or omission arising under or relating to a Contract with a Governmental Body; (v) received from any Governmental Body or any other person any written notice of breach, cure, show cause or default with respect to any Contract with a Governmental Body; or (vi) had any Contract with a Governmental Body terminated by any Governmental Body or any other Person for default or failure to perform. To the Knowledge of the Company, there are no event has occurred that outstanding or unsettled allegations of fraud, false claims or overpayments nor any investigations or audits by any Governmental Body with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the agreement respect to any Contract between any Acquired Company and no party thereto has repudiated any provision of such contractGovernmental Body.
Appears in 1 contract
Contracts. Except (a) Schedule 4.12 contains a true and complete list of each of the following Contracts as Previously Disclosed, neither of the Company nor any Company Subsidiary is a party to any contracts or agreementsdate hereof:
(1i) relating to indebtedness all Contracts providing for borrowed money, letters a commitment of credit, capital lease obligations, obligations secured employment by a Lien the Corporation or interest rate any of its Subsidiaries or currency hedging agreements (including guarantees in respect of consultation services for the Corporation or any of the foregoing, but Subsidiaries for a specified term and payments at any one time or in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) one year in excess of $100,000200,000;
(ii) all Contracts with any Person containing any provision or covenant prohibiting or materially limiting the ability of the Corporation or any of the Subsidiaries to engage in any business activity or compete with any Person;
(iii) all Contracts relating to any debt for borrowed money (other than trade payables) of the Corporation or any of the Subsidiaries in excess of $500,000 in principal amount per any such Contract;
(iv) all Contracts (other than this Agreement) providing for (i) the disposition or acquisition of any assets or properties that individually or in the aggregate are material to the business of the Corporation and the Subsidiaries, except for those issued taken as a whole, or that contain continuing payment obligations (beyond customary indemnity provisions) of the Corporation or any of the Subsidiaries in excess of $1,000,000 in amount per year per any such Contract, or (ii) any merger or other similar business combination among the Corporation or any of the Subsidiaries and a Person that is not a Subsidiary;
(v) all material Contracts (other than this Agreement) that prohibit or contain material restrictions on the ability of the Corporation or any of the Subsidiaries to incur indebtedness or incur or suffer to exist any Lien, to purchase or sell any assets, to change the lines of business in which it participates or engages or to engage in any merger or other business combination;
(vi) all Contracts establishing any joint venture, strategic alliance or other similar collaboration, other than dedicated scrap metal purchase Contracts entered into in the ordinary course of business;
(2vii) that constitutes a collective bargaining or other arrangement all Contracts with any labor union;
(3) that is a “material contract” within Person obligating the meaning of Item 601(b)(10) of Regulation S-K;
(4) that is a lease or agreement under which the Company Corporation or any of the Company Subsidiaries is lessee of, to guarantee or holds otherwise become directly or operates, indirectly obligated with respect to any property owned by debt for borrowed money (other than any other Person;
(5such debt incurred in the ordinary course of business) that is a lease or agreement under which of the Company Corporation or any of the Company Subsidiaries is lessor of, or permits in excess of $1,000,000 in principal amount per any Person to hold or operate, any such Contract;
(viii) all Contracts for the leasing of real property owned or controlled by the Company Corporation or any of the Company Subsidiaries;Subsidiaries providing for a lease payment in excess of $1,000,000 in amount per year per any such Contract and setting forth the address, landlord and tenant for each lease; and
(6ix) limiting all other Contracts that (i) involve the ability payment, pursuant to the terms of any such Contract, by the Company Corporation or any of the Company Subsidiaries to engage, in of more than $1,000,000 annually per any material respect, in any line of business or to compete, whether by restricting territories, customers or otherwisesuch Contract, or in any other material respect, with any Person;
(7ii) that is a settlement, conciliation or similar agreement, the performance of which will involve payment after the First Closing Date of consideration in excess of $100,000;
(8) that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000);
(9) that concerns the sale or acquisition of any material portion of the Company’s business;
(10) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability in excess of $100,000 and which, in each case, cannot be cancelled by terminated within 90 days after giving notice of termination without resulting in a cost or penalty to the Company without penalty or without more than 90 days’ notice;Corporation exceeding $200,000.
(12b) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking; and
(13) any other contract, agreement or understanding material Prior to the Company date hereof, true, correct and complete copies of each Contract required to be disclosed in Schedule 4.12 have been delivered to, or any of the Company Subsidiaries or their respective operationsmade available for inspection by, Buyer. Each such Contract of a type Previously Disclosed above to this Section 2.2(t) (collectively, the “Material Contracts”), is (i) legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (ii) is in full force and effect and constitutes a legal, valid and binding agreement, enforceable in accordance with its terms and (iii) will continue to be legalterms, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated by Corporation or any of the Transaction Documents. Neither Subsidiaries, as the Company case may be, and, of each other party thereto; and neither the Corporation nor any of the Company SubsidiariesSubsidiaries nor, nor to the Company’s Knowledge, any other party thereto is in default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each Corporation or any of the Subsidiaries, any other parties thereto, have performed in all material respects all material obligations required party to be performed by them under each Material such Contract, and to the Knowledge is in violation or breach of the Company, no event has occurred that or default under any such Contract (or with notice or lapse of time or both, would constitute a material be in violation or breach of or default or permit termination, modification, or acceleration, under the agreement and no party thereto has repudiated any provision of such contractContract). All conditions necessary to maintain these Contracts in force have been duly performed.
Appears in 1 contract
Contracts. Except as Previously Disclosed, neither the Company nor any Company Subsidiary is a party to any contracts or agreements:
(1) relating to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any Section 3.20 of the foregoingDisclosure Schedule contains a true and complete list of all Contracts (including, but in any event excluding trade payablesif oral, securities transactions and brokerage agreements arising in summaries of the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipmentmaterial terms thereof) in excess of $100,000, except for those issued in the ordinary course of business;
(2) that constitutes a collective bargaining or other arrangement with any labor union;
(3) that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(4) that is a lease or agreement under to which the Company or any of the Company its Subsidiaries is lessee ofparty, other than the Existing Real Property Leases and the Personal Property Leases, that constitute:
(a) any lease or holds or operates, any property owned by any other Personsublease of real property;
(5b) any employment or consulting agreement not terminable at will and without penalty or payment of any kind and without the payment of any penalty by, or any other material consequence to, the Company or any of its Subsidiaries;
(c) any open purchase orders or sales orders;
(d) any Contract that is a lease involves the performance of services or delivery of goods or materials by the Company or any of its Subsidiaries that may result in consideration paid or delivered to the Company in excess of Five Thousand Euro (€5,000);
(e) any agreement that involves the performance of services for, or delivery of goods or materials to the Company or any of its Subsidiaries that may result in consideration paid or delivered by the Company in excess of Five Thousand Euro (€5,000);
(f) any agreement which provides for, or relates to, the incurrence of indebtedness for borrowed money (including any interest rate or non-U.S. currency swap, cap, collar, hedge or insurance agreements, or options or forwards on such agreements, or other similar agreements for the purpose of managing the interest rate or non-U.S. exchange risk associated with its financing);
(g) any Contract granting any Person an Encumbrance on any of the assets or properties of the Company or any of its Subsidiaries;
(h) any Contract pursuant to which any deferred purchase price relating to property or services may be owing following the date hereof (including all obligations under any acquisition agreements pursuant to which the Company or any of the Company its Subsidiaries is lessor ofis, or permits may be, responsible for any Person to hold earn-out, note payable or operate, other contingent payment);
(i) any property owned Contract that limits or controlled by restricts where the Company or any of its Subsidiaries may conduct their business or the type or line of business in which they may engage;
(j) any consignment, distributor, sales representative, dealer, manufacturers representative, sales agency, advertising representative or advertising or public relations contract;
(k) any Contract which restricts or limits (or purports to restrict or limit) in any way the Company’s or any of its Subsidiaries’ ability to freely operate;
(l) any guarantee of the obligations of customers, suppliers, officers, directors, employees, Affiliates or others;
(m) all partnership agreements, joint venture agreements or similar agreements;
(n) any Contract that is not terminable on not more than 90 days’ notice and without the payment of any penalty by, or any other material consequence to, the Company or any of its Subsidiaries;
(6o) limiting any Contract relating to capital expenditures or the ability acquisition or construction of fixed assets for or in respect of any real property, in each case requiring payments in excess of Five Thousand Euro (€5,000);
(p) any Contract constituting a Company Intellectual Property Agreement;
(q) any Contract with any Affiliate, director, officer or employee of the Company or any of the Company Subsidiaries to engage, in any material respect, in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Personits Subsidiaries;
(7r) that is any (i) Contract with any Governmental Entity, or any political or other subdivision, department or branch thereof or (2) subcontract relating to a settlementprime contract with any Governmental Entity, conciliation or similar agreementany political or other subdivision, the performance of which will involve payment after the First Closing Date of consideration in excess of $100,000department or branch thereof;
(8) that relates to Intellectual Property Rights (s) any collective bargaining agreement or other than a license granted to the Company for commercially available software licensed on standard terms Contract with a total replacement cost of less than $100,000)labor union or other labor organization;
(9t) that concerns all other agreements to sell any asset or assets (i) valued at Five Thousand Euro (€5,000) or more individually or Five Thousand Euro (€5,000) in the sale aggregate or acquisition (ii) entered into outside the ordinary course of any material portion of the Company’s business;; or
(10) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability in excess of $100,000 and which, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice;
(12) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking; and
(13u) any other contract, agreement or understanding Contract that is material to the Company or any of the Company its Subsidiaries or their respective operationsthe absence of which would have a Material Adverse Effect. Each Contract The Contracts listed on Section 3.20 of a type Previously Disclosed above the Disclosure Schedule are referred to this Section 2.2(t) (collectively, herein as the “Material Contracts”), is .” Each Material Contract (i) is a legal, valid and binding on obligation of the Company and and/or its Subsidiaries and, to the Company Subsidiaries which are a party Knowledge of the Shareholders, the other parties to such contractMaterial Contract, (ii) is in full force and effect and enforceable in accordance with its terms and (iii) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the upon consummation of the transactions contemplated by hereby without penalty or other adverse consequence, subject to obtaining the Transaction Documents. Neither the Company nor any consents and approvals referred to in Section 3.6 of the Disclosure Schedule. The Company and its Subsidiaries, nor as the case may be, have performed each obligation under each of the Material Contracts that was to be performed by it at or before the Company’s Knowledge, date hereof. The Company and its Subsidiaries are not in breach or default in any other party thereto is in default material respect under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be acceleratedand, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the CompanyShareholders, each no other party to any Material Contract is in breach or default thereunder. To the Knowledge of the other parties theretoShareholders, have performed in all material respects all material obligations required no party to be performed by them under any of the Material Contracts intends to cancel, terminate or modify any of such Material Contracts. A true, correct and complete copy of each written Material Contract, and to the Knowledge a written description of the Companymaterial terms of each oral Material Contract, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the agreement and no party thereto has repudiated any provision of such contractbeen made available to Purchaser.
Appears in 1 contract
Contracts. Except as Previously Disclosed(a) For purposes of this Agreement, neither “Material Contract” means any Contracts to which the Company nor or any Company Subsidiary of its Subsidiaries is a party to or by which the Company or any contracts or agreementsof its Subsidiaries may be bound:
(1i) that relates to any joint venture, partnership, limited liability or other similar agreements or arrangements relating to indebtedness the formation, creation, operation, management or control of any joint venture, partnership or other equity investment in another Person;
(ii) that relates to commercialization, manufacturing, collaboration, co-promotion, discovery, development or profit sharing agreements or arrangements (including any such agreements or arrangements with any third-party payor or any third party contract research organization that directly conducts clinical trials, but excluding, for borrowed moneythe avoidance of doubt, any agreements or arrangements with third parties that support clinical trials or analyze or handle clinical data);
(iii) other than (A) solely among wholly owned Subsidiaries and the Company and (B) letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising credit entered into in the ordinary course of business consistent with past practicerespect to Company Leases, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) pursuant to which the Company or any of its Subsidiaries has any Indebtedness in an amount in excess of $100,00010,000,000 outstanding (or that may otherwise be incurred by the Company or any of its Subsidiaries in accordance with the terms thereof) in the aggregate;
(iv) that provides for the creation of any Lien, except other than a Permitted Lien, with respect to any asset (including IP or other intangible assets) material to the conduct of the business of the Company and its Subsidiaries as currently conducted, taken as a whole;
(v) that relates, in any material respect, in whole or in part, to any material IP, including Company Owned IP or Company Exclusively Licensed IP, including any (A) Contract that would entitle any third party to receive a license or any other right, title or interest (including any option or other contingent right, or any covenant not to ▇▇▇) with respect to IP of Parent or any of its Affiliates (other than Company) following the Closing Date, (B) Contract pursuant to which the Company or any of its Subsidiaries is granted by, or grants to, any other Person, any exclusive or other material license or other exclusive or other material right, title or interest (including any option or other contingent right, or any covenant not to ▇▇▇) with respect to, or assigns to any Person, or is assigned by any Person, any Company Owned IP or Company Exclusively Licensed IP, (C) Contract pursuant to which any joint or other material research or development activities related to any Product(s) are conducted, or (D) settlement, co-existence or other similar Contract or any Contract that restricts any Person from filing, registering, enforcing, disposing of or otherwise exploiting any IP related to any Product(s), in each case, other than licenses for those issued commercially available, off-the-shelf software application with a replacement cost and/or aggregate annual license and maintenance fee of less than $50,000;
(vi) that is with any university or other academic institution, research center, international organization or Governmental Authority, other than any sponsored research agreements or clinical trial site agreements entered into in the ordinary course of business;
(2) that constitutes a collective bargaining or other arrangement with any labor union;
(3) that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(4) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person;
(5) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(6) limiting the ability of the Company or any of the Company Subsidiaries to engage, in any material respect, in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(7vii) that is a settlement, conciliation or similar agreement, agreement which would require the performance Company or any of which will involve payment its Subsidiaries to pay consideration of more than $500,000 after the First Closing Date date of consideration this Agreement or that imposes any other material obligations upon the Company or any of its Subsidiaries after the date of this Agreement;
(viii) that is a Contract for the engagement of any person on a full-time, part-time, or consulting basis, providing for annual base salary compensation in excess of $100,000;
(8) that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000);
(9) that concerns the sale or acquisition of any material portion of the Company’s business;
(10) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability in excess of $100,000 and which300,000, in each case, that cannot be cancelled terminated by the Company or its Subsidiaries without penalty or without and on no more than 90 sixty (60) days’ notice;
(12ix) that concerns contains any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking; and
(13A) any other contract, agreement or understanding material to covenant that materially limits the ability of the Company or any of its Affiliates to engage in any line of business or to compete with any Person or operate at any geographic location, (B) “most favored nation” terms, including such terms for pricing or (C) terms providing for exclusive relations including, in each case of clauses (A) through (C), terms that, following the Closing, would reasonably be expected to so limit or impose such obligations on Parent or any of its Affiliates;
(x) that contains a put, call, right of first refusal or similar right pursuant to which the Company or any of its Subsidiaries could be required to purchase or their respective operations. Each sell, or offer for purchase or sale, as applicable, any (A) equity interests of any Person or (B) assets (excluding ordinary course commitments to purchase goods, products and off-the-shelf software) or businesses for an amount in excess, in the aggregate, of $10,000,000;
(xi) that (A) relates to the acquisition or disposition of assets or capital stock or other equity interests (by merger or otherwise) of any Person pursuant to which the Company or any of its Subsidiaries has continuing “earn out” or other contingent payment obligations after the date of this Agreement or (B) gives any Person the right to acquire any material assets of the Company or any of its Subsidiaries outside of the ordinary course of business after the date of this Agreement;
(xii) that is a Contract with (A) any sole-source supplier or (B) any supplier not covered by clause (A) that involved the payment of more than $1,000,000 in the Company’s last fiscal year;
(xiii) that indemnifies any director or executive officer of the Company or any of its Subsidiaries (other than any indemnification provisions set forth in the certificate of incorporation or bylaws or comparable governing documents of the Company or any of its Subsidiaries);
(xiv) that requires any capital commitment or capital expenditure (or series of capital expenditures) by the Company or any of its Subsidiaries after the date hereof in an amount in excess of $10,000,000 in the aggregate;
(xv) that is a type Previously Disclosed above Company Lease;
(xvi) that is with the Person set forth on Section 3.17(a)(xvi) of the Company Disclosure Letter or any of its Affiliates; and
(xvii) that is or would be required to this Section 2.2(tbe filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act.
(collectivelyb) As of the date hereof, neither the “Company nor any of its Subsidiaries is a party to or bound by any Material Contracts”), is Contract other than the Material Contracts (i) legalset forth on Section 3.17(a) of the Company Disclosure Letter or (ii) that are filed as exhibits to the Company SEC Documents. True and complete copies of each Material Contract in effect as of the date of this Agreement, including all amendments, waivers and changes thereto, have been made available to Parent. Except with respect to any Contract that has previously expired in accordance with its terms, been terminated, restated or replaced, (a) each Material Contract is valid and binding on the Company and and/or any of its Subsidiaries to the Company Subsidiaries which are extent such Person is a party to such contractthereto, (ii) is in full force and effect and enforceable in accordance with its terms and (iii) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Company’s Knowledge, any other party thereto is in default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiariesas applicable, and to the Knowledge of the Company, each of the other parties party thereto, have performed and is in all material respects all material obligations required full force and effect, except where the failure to be performed by them under valid, binding or in full force and effect would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (b) the Company and each Material Contractof its Subsidiaries, and and, to the Knowledge of the Company, no each other party thereto, has performed all obligations required to be performed by it under each Material Contract, except where such nonperformance would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (c) neither the Company nor any of its Subsidiaries has received written notice of the existence of any event has occurred that with or condition which 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 under any Material Contract, except where such default would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (d) to the Knowledge of the Company, there are no events or conditions which constitute, or, after notice or lapse of time or both, would constitute a material breach default on the part of any counterparty under such Material Contract, except as would not, individually or default or permit terminationin the aggregate, modificationreasonably be expected to have a Material Adverse Effect, and (e) as of the date hereof, the Company has not received any notice in writing from any Person that such Person intends to terminate, or accelerationnot renew, under the agreement and no party thereto has repudiated any provision of such contractMaterial Contract.
Appears in 1 contract
Sources: Merger Agreement (MyoKardia, Inc.)
Contracts. Except as Previously Disclosed, neither (a) Section 3.13(a) of the Company nor any Company Subsidiary is a party to any contracts or agreements:
(1) relating to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging Disclosure Schedule lists the following agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $100,000, except for those issued in the ordinary course of business;
(2) that constitutes a collective bargaining or other arrangement with any labor union;
(3) that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(4) that is a lease or agreement under which the Company has any remaining rights or any obligations and to which the Company is, as of the Company Subsidiaries is lessee ofdate of this Agreement (other than (x) non-disclosure agreements, (y) purchase orders and (z) and materials supply and materials transfer agreements, in each case entered into in the Ordinary Course of Business), a party (each a “Contract”):
(i) any agreement (or holds group of related agreements) for the lease of personal property from or operates, any property owned by any other Personto third parties;
(5ii) that is any agreement (or group of related agreements) for the purchase or sale of products or for the furnishing or receipt of services (A) which calls for performance over a lease period of more than one (1) year, (B) which involves more than the sum of $25,000, or (C) in which the Company has granted manufacturing rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any services, products or territory or has agreed to purchase a minimum quantity of goods or services or has agreed to purchase goods or services exclusively from a certain party;
(iii) any agreement providing for any royalty, milestone or similar payments by the Company;
(iv) any agreement concerning the establishment or operation of a partnership, joint venture or limited liability company;
(v) any agreement (or group of related agreements) under which the Company has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) Indebtedness (including capitalized lease obligations) or under which it has imposed a Lien on any of its assets, tangible or intangible, other than pursuant to the terms of any definitive agreement disclosed on the Company Subsidiaries Disclosure Schedules pursuant to which any non-exclusive license or other grant of non-exclusive rights in or to any Intellectual Property is lessor of, or permits any Person to hold or operate, any property owned or controlled made by the Company or any of the Company SubsidiariesCompany;
(6vi) limiting any agreement for the ability disposition of any assets or business of the Company or any agreement for the acquisition of the Company Subsidiaries to engage, in any material respect, in any line assets or business of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(7) that is a settlement, conciliation or similar agreement, the performance of which will involve payment after the First Closing Date of consideration in excess of $100,000;
(8) that relates to Intellectual Property Rights Person (other than a license granted to purchases of inventory or components in the Company for commercially available software licensed on standard terms with a total replacement cost Ordinary Course of less than $100,000Business);
(9vii) that concerns any agreement concerning noncompetition, exclusivity or non-solicitation;
(viii) any employment agreement or consulting agreement;
(ix) any agreement providing for severance, retention, change in control payments, or transaction-based bonuses or incentives;
(x) any settlement agreement or settlement-related agreement (including any agreement in connection with which any employment- or individual services-related claim is settled);
(xi) any agreement entered into by the Company since inception (whether or not in effect as of the date of this Agreement) with any Affiliate of the Company or with any current or former officer, director or stockholder of the Company or any Affiliate thereof;
(xii) any agreement the primary purpose of which is to indemnify any other party (excluding indemnities contained in agreements for the purchase, sale or acquisition license of products, materials or services entered into in the Ordinary Course of Business);
(xiii) any agreement that would entitle any third party to receive a license or any other right to (or would otherwise bind or purport to bind) Intellectual Property of the Buyer or any of the Buyer’s Affiliates (excluding the Company and the Surviving Entity) following the Closing;
(xiv) any agreement relating to grants, funding or other forms of assistance received by the Company from any Governmental Entity;
(xv) any agreement relating the research, development, clinical trial, manufacturing, distribution, supply, marketing or co-promotion of any material portion products, product candidates or devices in development by or which has been or which is being researched, developed, marketed, distributed, supported, sold or licensed out, in each case by or on behalf of the Company’s business;
(10) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability in excess of $100,000 and which, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice;
(12) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking; and
(13xvi) any other contract, agreement (or understanding material group of related agreements) either involving more than $75,000 or not entered into in the Ordinary Course of Business.
(b) The Company has made available to the Buyer a complete and accurate copy of (A) each Contract (as amended to date), (B) each materials supply agreement and materials transfer agreement to which the Company is or any was a party entered into since the inception of the Company Subsidiaries and (C) each agreement which contains any provisions requiring the Company to indemnify any party (excluding indemnities contained in agreements for the purchase, sale or their respective operationslicense of products, materials or services entered into in the Ordinary Course of Business). Each Contract of a type Previously Disclosed above With respect to this Section 2.2(t) (collectively, the “Material Contracts”), is each Contract: (i) legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (ii) Contract is in full force and effect and enforceable in accordance with its terms and (iii) will continue to be legal, valid, binding, enforceable, binding and enforceable and in full force and effect on identical terms following the consummation of the transactions contemplated by the Transaction Documents. Neither against the Company nor any of the Company Subsidiariesand, nor to the Company’s Knowledge, any against each other party thereto is in default under any Material Contract. No benefits under any Material Contract will be increased, (subject to Applicable Bankruptcy Laws); and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and (ii) neither the Company Subsidiariesnor, and to the Knowledge of the Company, each of the any other parties theretoparty, have performed is in all material respects all material obligations required to be performed by them under each Material breach or violation of, or default under, any such Contract, and no event has occurred, is pending or, to the Knowledge of the Company, no event has occurred that is threatened, which, after the giving of notice, with notice or lapse of time time, or otherwise, would constitute a material any such breach or default by the Company or, to the Knowledge of the Company, any other party under such Contract.
(c) The Company is not a party to any oral contract, agreement or permit terminationother arrangement which, modificationif reduced to written form, or acceleration, would be required to be listed in Section 3.13(a) of the Company Disclosure Schedule under the agreement and no party thereto has repudiated any provision terms of such contractSection 3.13(a).
Appears in 1 contract
Sources: Merger Agreement (Ophthotech Corp.)
Contracts. Except (a) Schedule 3.17 (with paragraph references ------------- corresponding to those set forth below) contains, as Previously Disclosedof the date hereof, neither a true and complete list of each of the Company nor following Contracts or other arrangements (true and complete copies or, if none, reasonably complete and accurate written descriptions of such material Contracts and arrangements which, together with all amendments and supplements thereto and all waivers (and, in the event such waivers were provided orally, all material waivers) of any Company Subsidiary terms thereof, have been made available and, in the case of material Contracts and arrangements, delivered to Buyer prior to the execution of this Agreement) to which Seller is a party to or by which any contracts or agreementsof the Assets is bound:
(1A) all Contracts (excluding Benefit Plans) providing for a commitment of employment or consultation services for a specified or unspecified term to, or otherwise relating to indebtedness for borrowed moneyemployment or the termination of employment of, letters any Employee, the name, position and rate of creditcompensation of each Employee party to such a Contract and the expiration date of each such Contract; and (B) any written or unwritten representations, capital lease obligationscommitments, obligations secured by a Lien promises, communications or interest rate courses of conduct (excluding Benefit Plans and any such Contracts referred to in clause (A)) involving an obligation of Seller to make payments in any year, other than with respect to salary or currency hedging agreements incentive compensation payments in the ordinary course of business, to any Employee exceeding $10,000 or any group of Employees exceeding $50,000 in the aggregate;
(including guarantees ii) all Contracts with any Person containing any provision or covenant prohibiting or limiting the ability of Seller to engage in respect any business activity or compete with any Person in connection with the Business or prohibiting or limiting the ability of any Person to compete with Seller in connection with the Business;
(iii) all partnership, joint venture, shareholders' or other similar Contracts with any Person in connection with the Business;
(iv) all Contracts with distributors, dealers, manufacturer's representatives, sales agencies or franchises with whom Seller deals in connection with the Business;
(v) all Contracts relating to the future disposition or acquisition of the foregoingany Assets, but in any event excluding trade payables, securities transactions and brokerage agreements arising other than dispositions or acquisitions of Inventory in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $100,000, except for those issued in the ordinary course of business;
(2vi) that constitutes a all collective bargaining or other arrangement with similar labor Contracts covering any labor union;
(3) that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(4) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person;
(5) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(6) limiting the ability of the Company or any of the Company Subsidiaries to engage, in any material respect, in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(7) that is a settlement, conciliation or similar agreement, the performance of which will involve payment after the First Closing Date of consideration in excess of $100,000;
(8) that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000);
(9) that concerns the sale or acquisition of any material portion of the Company’s business;
(10) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability in excess of $100,000 and which, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice;
(12) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertakingEmployee; and
(13vii) any all other contract, agreement or understanding material Contracts (other than Benefit Plans and insurance policies listed in Schedule 3.13) with respect to the Company Business ------------- that (A) involve the payment or potential payment, pursuant to the terms of any such Contract, by or to Seller of the Company Subsidiaries more than $50,000 annually and (B) cannot be terminated within thirty (30) days after giving notice of termination without resulting in any material cost or their respective operations. penalty to Seller.
(b) Each Contract of a type Previously Disclosed above required to this Section 2.2(tbe disclosed in Schedule 3.17(a) (collectively, the “Material Contracts”), is (i) legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (ii) ---------------- is in full force and effect and constitutes a legal, valid and binding agreement, enforceable in accordance with its terms terms, of each party thereto; and (iii) will continue to be legal, valid, binding, enforceable, and except as disclosed in full force and effect on identical terms following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Company’s Knowledge, any other party thereto is in default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the agreement and no party thereto has repudiated any provision of such contract.Schedule 3.17
Appears in 1 contract
Contracts. Except as Previously DisclosedSection 4.12 of the Disclosure Schedule lists the following contracts obligations, neither understandings, commitments, leases, licenses, purchase orders, bids or other agreements, whether written or oral (each, a “Contract”) to which the Company nor any Company Subsidiary or one of its Subsidiaries is a party party, and to any contracts which the Company or agreementsone of its Subsidiaries has continuing obligations as of June 1, 2007:
(1a) relating to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees each Contract in respect of the sale of products or the performance of services, or for the purchase of inventories, equipment, raw materials, supplies, services or utilities that (i) involves anticipated additional payments or receipts by the Company or any of its Subsidiaries of $250,000 or more through the foregoingremaining term of such Contract and (ii) is not terminable by the Company or any of its Subsidiaries at any time upon notice of 90 days or less;
(b) any Contract for the lease of personal property to or from any Person providing for lease payments in excess of $250,000 per annum;
(c) each partnership, but in joint venture, joint operating or similar Contract;
(d) any event Contract for Indebtedness;
(e) any Contract with any Company Shareholder or an Affiliate of any Company Shareholder;
(f) excluding trade payablesany Employee Benefit Plans, securities transactions any employment agreement, deferred compensation, severance or other plan or arrangement for the benefit of its directors, officers and brokerage agreements arising in employees or any consulting agreement which provides for annual payments by the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) Company or any Subsidiary in excess of $100,000, except for those issued in the ordinary course of business;
(2g) that constitutes a any collective bargaining or other arrangement with any labor unionagreement;
(3h) that is any power of attorney (except for powers of attorney entered into in the Ordinary Course of Business for a “material contract” within the meaning of Item 601(b)(10) of Regulation S-Klimited nature and time);
(4i) that is a lease any Contract entered into by the Company or agreement any Subsidiary in settlement of any lawsuit or other claim;
(j) any Contract under which the Company has advanced or any of the Company Subsidiaries is lessee ofloaned money to directors, officers, employees or holds or operates, any property owned by any other Person;
(5k) each warranty Contract with respect to the Company’s or any Subsidiary’s services rendered or their products sold, leased or licensed; provided, however, that is a lease warranty Contracts are not required to be listed (but are included in the definition of Contracts for purposes of the last paragraph of this Section 4.12);
(l) each Contract relating to the acquisition or agreement under which sale of the business (or any material portion thereof), whether or not consummated and including any confidentiality agreements entered into with respect thereto;
(m) each Contract that provides any customer of the Company or any Subsidiary with pricing, discounts or benefits that change based on the pricing, discounts or benefits offered to other customers of the Company Subsidiaries is lessor ofor any Subsidiary, or permits any Person including, without limitation, contracts containing “most favored nation” provisions;
(n) each Contract relating to hold or operate, any property owned or controlled the licensing of Intellectual Property by the Company or any of its Subsidiaries to a third party or by a third party to the Company or any of its Subsidiaries;
(6) limiting , and all other agreements affecting the ability of the Company or any of the Company its Subsidiaries to engageuse or disclose any of the Company’s or its Subsidiaries’ Intellectual Property; provided that, in any material respect, in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(7) that is a settlement, conciliation or similar agreement, licenses for “off the performance of which will involve payment after the First Closing Date of consideration in excess of $100,000;
(8) that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available shelf” software licensed on pursuant to standard terms with end-user licenses for a total replacement cost fee of less than $100,000);
100,000 in the aggregate are not required to be listed (9) that concerns but are included in the sale or acquisition definition of any material portion Contracts for purposes of the Company’s business;
(10) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability in excess last paragraph of $100,000 and which, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice;
(12) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertakingthis Section 4.12); and
(13o) any other contract, agreement or understanding material to Contract restricting the right of the Company or any of its Subsidiaries to do business anywhere in the world. The Company Subsidiaries has delivered or their respective operationsmade available to Parent a true and correct copy of each written Contract listed in Section 4.12 of the Disclosure Schedule and a summary of each oral Contract. Each Contract of a type Previously Disclosed above With respect to this Section 2.2(t) (collectively, the “Material Contracts”), is each such Contract: (i) legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (ii) is in full force and effect and enforceable in accordance with its terms and (iii) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated by the Transaction Documents. Neither neither the Company nor any of the Company Subsidiaries, nor to the Company’s Knowledge, any other party thereto its Subsidiaries is in material breach or default under any Material Contract. No benefits under any Material Contract will be increasedand, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no other party thereto is in material breach or default, and no event has occurred that which with notice or lapse of time would constitute a material breach or default default, or permit termination, modification, material modification or acceleration, under the agreement and agreement; (ii) no party thereto has repudiated any provision of such contractthe agreement; and (iii) with respect to the Company and its Subsidiaries, as applicable, the Contract is legally valid and binding, except as enforcement may be limited by general principles of equity, whether applied in a court of law or a court of equity and by bankruptcy, insolvency, moratorium or other similar laws affecting creditors’ rights and remedies generally.
Appears in 1 contract
Contracts. Except as Previously Disclosedset forth in the SEC Reports or the Memorandum, neither the Company nor any Company Subsidiary of its Subsidiaries is a party to or subject to, or bound by: (i) any agreements, contracts or agreements:
(1) relating commitments that call for prospective fixed and/or contingent payments or expenditures by or to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien the Company or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoingits Subsidiaries of more than $100,000, but in any event excluding trade payables, securities transactions or which is otherwise material and brokerage agreements arising not entered into in the ordinary course of business consistent with past practicebusiness; (ii) any contract, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) lease or agreement involving payments in excess of $100,000, except for those issued in the ordinary course of business;
(2) that constitutes a collective bargaining or other arrangement with any labor union;
(3) that which is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(4) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person;
(5) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled not cancelable by the Company or any of the Company its Subsidiaries;
, as applicable, without penalty on not less than 60 days notice; (6iii) any contract, including any distribution agreements, containing covenants directly or explicitly limiting the ability freedom of the Company or any of the Company its Subsidiaries to engage, in any material respect, compete in any line of business or with any Person or to competeoffer any of its products or services; (iv) any indenture, whether by restricting territoriesmortgage, customers promissory note, loan agreement, guaranty or otherwise, other agreement or commitment for the borrowing of money or pledging or granting a security interest in any other material respect, with any Person;
assets; (7) that is a settlement, conciliation or similar agreement, the performance of which will involve payment after the First Closing Date of consideration in excess of $100,000;
(8) that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000);
(9) that concerns the sale or acquisition of any material portion of the Company’s business;
(10) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability in excess of $100,000 and which, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice;
(12) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking; and
(13v) any employment contracts, non-competition agreements, invention assignments, severance or other contractagreements with officers, agreement directors, employees, stockholders or understanding material to consultants of the Company or any of the Company its Subsidiaries or their respective operations. Each Contract of a type Previously Disclosed above Persons related to this Section 2.2(tor affiliated with such Persons; (vi) (collectively, any stock redemption or purchase agreements or other agreements affecting or relating to the “Material Contracts”), is (i) legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (ii) is in full force and effect and enforceable in accordance with its terms and (iii) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any capital stock of the Company or any of its Subsidiaries, nor to the Company’s Knowledgeincluding, without limitation, any agreement with any stockholder of the Company or any of its Subsidiaries which includes, without limitation, antidilution rights, voting arrangements or operating covenants; (vii) any pension, profit sharing, retirement, stock option or stock ownership plans; (viii) any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries or based on the revenues or profits derived from any material contract; (ix) any acquisition, merger, asset purchase or other party thereto is in default under similar agreement; (x) any Material Contract. No benefits under sales agreement which entitles any Material Contract will be increasedcustomer to a right of set-off, and no vesting of or right to a refund after acceptance thereof; (xi) any benefits under agreement with any Material Contract will be accelerated, supplier or licensor containing any provision permitting such supplier or licensor to change the price or other terms upon a breach or failure by the occurrence of Company or any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company its Subsidiaries, and as applicable, to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material meet its obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice such agreement; or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the agreement and no party thereto has repudiated any provision of such contract.19
Appears in 1 contract
Sources: Securities Purchase Agreement
Contracts. Except (a) Schedule 4.13(a) sets forth a true, complete and accurate list, as Previously Disclosedof the date of this Agreement, neither of all of the following Contracts as amended to date which are currently in effect (collectively, “Material Contracts”):
(i) all Contracts that require annual payments or expenses incurred by, or annual payments or income to, the Company nor any Company Subsidiary is a party to any contracts of $500,000 or agreements:
more (1) relating to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions other than standard purchase and brokerage agreements arising sale orders entered into in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $100,000, except for those issued in the ordinary course of business;
(2) that constitutes a collective bargaining or other arrangement with any labor union;
(3) that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(4) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person;
(5) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(6) limiting the ability of the Company or any of the Company Subsidiaries to engage, in any material respect, in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(7) that is a settlement, conciliation or similar agreement, the performance of which will involve payment after the First Closing Date of consideration in excess of $100,000;
(8) that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000practices);
(9ii) that concerns the sale all sales, advertising, agency, sales promotion, market research, marketing or acquisition of any material portion of the Company’s businesssimilar Contracts;
(10iii) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability in excess of $100,000 and which, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice;
(12) that concerns Contract with any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking; and
(13) any other contract, agreement or understanding material to the Company or any current employee of the Company Subsidiaries (A) which is not terminable for any reason or their respective operations. Each Contract no reason upon reasonable notice without payment of a type Previously Disclosed above to this Section 2.2(tany penalty, severance or other obligation; (B) (collectively, the “Material Contracts”), is (i) legal, valid and binding on the Company and the Company Subsidiaries which are a party providing for severance or post-termination payments or benefits to such contract, employee (iiother than COBRA obligations); or (C) is in full force and effect and enforceable in accordance with its terms and (iii) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following providing for a payment or benefit upon the consummation of the transactions contemplated by this Agreement or any Additional Agreement or as a result of a change of control of the Transaction DocumentsCompany;
(iv) all Contracts creating a joint venture, strategic alliance, limited liability company or partnership arrangement to which the Company is a party;
(v) all Contracts relating to any acquisitions or dispositions of material assets by the Company (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices);
(vi) all IP Contracts, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts limiting the freedom of the Company to compete in any line of business or industry, with any Person or in any geographic area;
(viii) all Contracts providing for guarantees, indemnification arrangements and other hold harmless arrangements made or provided by the Company, including all ongoing agreements for repair, warranty, maintenance, service, indemnification or similar obligations, other than Standard Contracts;
(ix) all Contracts with or pertaining to the Company to which any Affiliate of the Company is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder;
(x) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of $500,000 per year;
(xi) all Contracts creating or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate that are valued at $250,000 or greater;
(xii) all Contracts relating to the voting or control of the equity interests of the Company or the election of directors of the Company (other than the organizational or constitutive documents of the Company);
(xiii) all Contracts not cancellable by the Company with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to the Company in excess of $500,000 per the terms of such contract;
(xiv) all Contracts that may be terminated, or the provisions of which may be altered, as a result of the consummation of the transactions contemplated by this Agreement or any Additional Agreement;
(xv) all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Additional Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Additional Agreement; and
(xvi) all collective bargaining agreements or other agreement with a labor union or labor organization.
(b) Each Material Contract is (i) a valid and binding agreement, (ii) in full force and effect and (iii) enforceable by and against the Company and each counterparty that is party thereto, subject, in the case of this clause (iii), to the Enforceability Exceptions. Neither the Company nor any of the Company Subsidiariesnor, nor to the Company’s Knowledge, any other party thereto to a Material Contract is in material breach or default (whether with or without the passage of time or the giving of notice or both) under the terms of any such Material Contract. No benefits The Company has not assigned, delegated or otherwise transferred any of its rights or obligations under any Material Contract will be increasedor granted any power of attorney with respect thereto.
(c) The Company is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and no vesting of other instruments or Contracts establishing or evidencing any benefits under any Material Contract will be accelerated, by the occurrence of any Indebtedness. The consummation and closing of the transactions contemplated by the Transaction Documents, nor will the value this Agreement shall not cause or result in an event of any of the benefits default under any Material Contract be calculated on the basis of instruments or Contracts establishing or evidencing any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the agreement and no party thereto has repudiated any provision of such contractIndebtedness.
Appears in 1 contract
Contracts. Except as Previously Disclosed, neither Section 2.13 of the Disclosure Schedule sets forth a true and complete list of each of the following Contracts to which the Company nor or any Company Subsidiary of its Subsidiaries is a party or by which its assets are bound (such Contracts that are required to be listed in Section 2.13 of the Disclosure Schedule are herein referred to as the “Material Contracts”):
(a) any Contract (or group of related Contracts) (other than purchase and sale orders entered into in the Ordinary Course) for the distribution or sale of the Company’s or any of its Subsidiaries’ products or services or for the performance of services by the Company or any of its Subsidiaries to any contracts Person whose purchases constitute five percent (5%) or agreements:
(1) relating to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any more of the foregoingCompany’s and its Subsidiaries’ sales for the twelve month period ending March 31, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $100,000, except for those issued in the ordinary course of business2018;
(2b) that constitutes any Contract (or group of related Contracts) establishing or governing a collective bargaining partnership or other arrangement with joint venture or relating to the Company’s or any labor unionof its Subsidiaries’ investment in any distributorship or franchise;
(3c) that is a “material contract” within the meaning any Contract (or group of Item 601(b)(10related Contracts) of Regulation S-K;
(4) that is a lease or agreement under which the Company or any of the Company its Subsidiaries is lessee ofhas created, incurred, assumed, or holds guaranteed any Indebtedness for borrowed money (excluding advances, deposits, trade payables in the Ordinary Course) or operatesany capitalized lease obligation, or under which there is imposed an Encumbrance on any property owned by of the Company’s or any other Personof its Subsidiaries’ assets, tangible or intangible;
(5d) that is a lease any Contract (or agreement under which group of related Contracts) imposing any restriction on the Company right or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(6) limiting the ability of the Company or any of the Company its Subsidiaries to engage, in any material respect, engage in any line of business business, manufacture or to competedistribute any services, whether by restricting territoriesproducts or other materials, customers or otherwise, or in compete with any other material respectPerson or solicit any customer, with any Personemployee or other service provider;
(7e) that is a settlement, conciliation any Contract (or similar agreement, the performance group of which will involve payment after the First Closing Date of consideration in excess of $100,000;
(8) that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms related Contracts) with a total replacement cost of less than $100,000);
(9) that concerns the sale or acquisition of any material portion of the Company’s businessor any of its Subsidiaries’ Affiliates, officer or director or any family member of an Affiliate, officer or director;
(10) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability in excess of $100,000 and which, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice;
(12) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking; and
(13f) any other contractContract (or group of related Contracts) relating to the disposition or acquisition of the assets of, agreement or understanding material any equity interest in, any business enterprise or property which relates to the Company or any of its Subsidiaries, or any merger or business combination with respect to the Company or any of its Subsidiaries, entered into since March 31, 2015, other than the purchase and sale of inventory in the Ordinary Course or where there is no continuing material Liability or obligation of the Company or any of its Subsidiaries;
(g) any Contract (or group of related Contracts) for the employment of any officer, individual employee or other Person on a full-time, part-time, consulting or other basis that provides for annual compensation in excess of $150,000 or providing any termination benefits or payments in excess of $50,000;
(h) any Contract (or group of related Contracts) governing Indebtedness of the Company or any of its Subsidiaries or their respective operations. Each Contract the grant of a type Previously Disclosed above to this Section 2.2(t) (collectively, any Encumbrance on any material property or material asset of the “Material Contracts”), is Company or any Subsidiary;
(i) legal, valid and binding on any Contract (or group of related Contracts) restricting the transfer of Capital Stock of the Company and or any of its Subsidiaries, obligating the Company or any of its Subsidiaries to repurchase shares of its Capital Stock, or relating to the voting of Capital Stock or the election of directors of any of the Company or any of its Subsidiaries;
(j) any Intellectual Property License;
(k) any CBA;
(l) any Contract (or group of related Contracts) with a Governmental Authority;
(m) any Contract (or group of related Contracts) for the purchase of supplies or other personal property by the Company or any of its Subsidiaries or for the payment of services provided by vendors or suppliers to the Company or any of its Subsidiaries that has involved or is reasonably expected to involve payment in excess of $250,000 (other than purchase and sale orders entered into in the Ordinary Course);
(n) any Contract (or group of related Contracts) for the settlement of any litigation;
(o) any Contract (or group of related Contracts) relating to the marketing, sale, advertising or promotion of the Company’s services which have involved or are reasonably expected to involve consideration in excess of $250,000;
(p) any powers of attorney granted by the Company or any of its Subsidiaries that are currently effective and outstanding;
(q) any Contract (or group of related Contracts) that requires the Company or any of its Subsidiaries to use any supplier or third party for all or substantially all of its requirements or needs or requires such entity to provide a third party “most favored nation” or similar protective pricing terms; and
(r) any commitment to such contractdo any of the foregoing described in clauses (a) through (p). The Company has Made Available to the Parent a correct and complete copy of each written Material Contract, (ii) is including any and all amendments thereto, and a written summary setting forth the material terms of each oral Material Contract. All Material Contracts are valid, binding, enforceable against the Company or any of its Subsidiaries, as applicable, and, to the Company’s Knowledge, each other party thereto, and are in full force and effect and enforceable effect, in accordance with its terms and (iii) will continue to each case except as such enforceability may be legallimited by applicable insolvency, validbankruptcy, bindingreorganization, enforceablemoratorium or other similar Laws affecting creditors’ rights generally, and applicable equitable principles (whether considered in full force and effect on identical terms following the consummation of the transactions contemplated by the Transaction Documentsa proceeding at law or in equity). Neither the Company nor any Each of the Company Subsidiariesand each of its Subsidiaries is not, nor and to the Company’s Knowledge no other party to a Material Contract is, in breach of or in default under the terms of any Material Contract, and there has not occurred any event that, with the passage of time or the giving of notice or both, would constitute a breach or default in any material respect thereunder attributable to the Company or any of its Subsidiaries or, to the Company’s Knowledge, any other party thereto is thereto, the effect of which, individually or in default under the aggregate, would reasonably be expected to result in material Liability to the Company. Neither the Company nor any Material Contract. No benefits under of its Subsidiaries has received written notice that any party to any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and intends to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each cancel or terminate such Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the agreement and no party thereto has repudiated any provision of such contract.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Forrester Research, Inc.)
Contracts. (a) Except as Previously Disclosedset forth on Schedule 5.15, neither the Company nor any Company Subsidiary of its Subsidiaries is a party to any contracts or agreementssubject to, or bound by:
(1i) relating any agreements, contracts or commitments that call for prospective fixed and/or contingent payments or expenditures by or to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien the Company or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course its Subsidiaries of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $more than US$100,000, except for those issued or which is otherwise material and not entered into in the ordinary course of business;
(2ii) that constitutes a collective bargaining any contract, lease or other arrangement with agreement involving payments in excess of US$100,000, which is not cancelable by the Company or any labor unionof its Subsidiaries, as applicable, without penalty on not less than sixty (60) days notice;
(3iii) that is a “material any contract” within , including any distribution agreements, containing covenants directly or explicitly limiting the meaning freedom of Item 601(b)(10) the Company or any of Regulation S-Kits Subsidiaries to compete in any line of business or with any Person or to offer any of its products or services;
(4iv) that is any indenture, mortgage, promissory note, loan agreement, guaranty or other agreement or commitment for the borrowing of money or pledging or granting a lease security interest in any assets;
(v) any employment contracts, non-competition agreements, invention assignments, severance or other agreements with officers, directors, employees, stockholders or consultants of the Company or any of its Subsidiaries or Persons related to or affiliated with such Persons;
(vi) any stock redemption or purchase agreements or other agreements affecting or relating to the capital stock of the Company or any of its Subsidiaries, including, without limitation, any agreement with any stockholder of the Company or any of its Subsidiaries which includes, without limitation, antidilution rights, voting arrangements or operating covenants;
(vii) any pension, profit sharing, retirement, stock option or stock ownership plans;
(viii) any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries or based on the revenues or profits derived from any Material Contract;
(ix) any acquisition, merger, asset purchase or other similar agreement;
(x) any sales agreement which entitles any customer to a right of set-off, or right to a refund after acceptance thereof;
(xi) any agreement with any supplier or licensor containing any provision permitting such supplier or licensor to change the price or other terms upon a breach or failure by the Company or any of its Subsidiaries, as applicable, to meet its obligations under such agreement;
(xii) any agreement under which the Company or any of the Company its Subsidiaries is lessee of, or holds or operates, has granted any property owned by any other PersonPerson registration rights for securities;
(5xiii) that any contract, obligation or arrangement which is of an unusual or abnormal nature, or outside the ordinary course of the business of the Company or its Subsidiaries;
(xiv) any contract, obligation or arrangement which is not on arm’s length commercial terms;
(xv) any contract, obligation or arrangement which gives any party an option to acquire or dispose of any asset or requires another person to do so; or
(xvi) any contract, obligation or arrangement which is likely to result in a lease loss to the Company on completion or agreement under performance.
(b) Schedule 5.15(b) to the Disclosure Schedules contains an accurate and complete listing or description of all agreements, contracts or instruments, including all amendments thereto, to which the Company or any of its Subsidiaries are bound which meet the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(6) limiting the ability of the Company or any of the Company Subsidiaries to engage, criteria set forth in any material respect, in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(7) that is a settlement, conciliation or similar agreement, the performance of which will involve payment after the First Closing Date of consideration in excess of $100,000;
(8) that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000);
(9) that concerns the sale or acquisition of any material portion of the Company’s business;
(10) that concerns a partnership or joint venture;
(11) involving aggregate consideration liability in excess of $100,000 and which, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice;
(12) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking; and
(13) any other contract, agreement or understanding material to the Company or any of the Company Subsidiaries or their respective operations. Each Contract of a type Previously Disclosed above to this Section 2.2(t5.15(a) (such agreements, contracts or instruments, collectively, the “Material Contracts”), is (i) legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (ii) is in full force and effect and enforceable in accordance with its terms and (iii) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiariesits Subsidiaries has entered into any oral contracts which, nor to the Company’s Knowledgeif written, any other party thereto is in default under any would qualify as a Material Contract. No benefits under any Each of the Material Contract will be increasedContracts is valid and in full force and effect, is enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or similar laws affecting creditors’ rights generally and general principles of equity, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required continue to be performed by them under each Material Contract, and to so immediately following the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the agreement and no party thereto has repudiated any provision of such contractClosing Date.
Appears in 1 contract
Sources: Securities Purchase Agreement (You on Demand Holdings, Inc.)
Contracts. Except as Previously Disclosed, neither (a) Schedule 2.16(a) of the Company nor Disclosure Schedule (with paragraph references corresponding to those set forth below) contains a true and complete list of each of the following Contracts or other arrangements (true and complete copies or, if none, reasonably complete and accurate written descriptions of which, together with all amendments and supplements thereto and all waivers of any terms thereof, have been delivered to Purchaser prior to the execution of this Agreement) which is currently in existence and to which Company Subsidiary or LLLP is a party to or by which any contracts or agreementsof the Assets are bound:
(1i) all Contracts (excluding Benefit Plans) providing for a commitment of employment or consultation services for a specified term and payments or unspecified term to, or otherwise relating to indebtedness for borrowed moneyemployment or the termination of employment of, letters any Employee, the name, position and rate of creditcompensation of each Employee party to such a Contract and the expiration date of each such Contract; and (B) any written or unwritten representations, capital lease obligationscommitments, obligations secured by a Lien promises, communications or interest rate or currency hedging agreements courses of conduct (including guarantees excluding Benefit Plans and any such Contracts referred to in respect clause (A)) involving an obligation of any of the foregoing, but company to make payments in any event excluding trade payablesyear, securities transactions and brokerage agreements arising other than with respect to salary or incentive compensation payments in the ordinary course Ordinary Course of business consistent with past practiceBusiness, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipmentto any Employee exceeding Twenty Five Thousand Dollars ($25,000) or any group of Employees exceeding One Hundred Thousand Dollars ($100,000) in excess of $100,000, except for those issued in the ordinary course of businessaggregate;
(2ii) that constitutes a collective bargaining or other arrangement all Contracts with any labor union;
(3) that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(4) that is a lease Person containing any provision or agreement under which the Company covenant prohibiting or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person;
(5) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(6) materially limiting the ability of the Company or any of the Company Subsidiaries LLLP to engage, engage in any material respectbusiness activity or compete with any Person or prohibiting or limiting the ability of any Person to compete with Company or LLLP;
(iii) all partnership, in any line of business joint venture, shareholders’ or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, similar Contracts with any Person;
(7iv) that is a settlementall Contracts with distributors, conciliation dealers, manufacturer’s representatives, sales agencies or similar agreement, the performance of which will involve payment after the First Closing Date of consideration in excess of $100,000franchises with whom Company deals;
(8) that relates v) all Contracts relating to Intellectual Property Rights Indebtedness of Company;
(vi) all Contracts (other than a license granted to this Agreement) providing for (A) the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000);
(9) that concerns the sale future disposition or acquisition of any material portion assets or properties, including the Assets, other than dispositions or acquisitions of inventory in the Company’s businessOrdinary Course of Business, and (B) any merger or other business combination;
(10vii) that concerns a partnership or joint ventureall Contracts between Company, on the one hand, and any Affiliate of Company, on the other hand;
(11viii) involving aggregate consideration liability in excess all Contracts (other than this Agreement) that limit or contain restrictions on the ability of $100,000 and whichCompany to incur Indebtedness or incur or suffer to exist any Lien, in each case, cannot be cancelled by or to purchase or sell any Assets or to change the Company without penalty or without more than 90 days’ noticeBusiness;
(12ix) that concerns any material hedge, collar, option, forward purchasing, swap, derivative all collective bargaining or similar agreement, understanding union contracts covering an Employee or undertakingthe Dania ▇▇▇ ▇▇▇▇ players; and
(13x) any all other contractContracts that (A) involve the future payment or potential future payment, agreement or understanding material pursuant to the terms of any such Contract, by or to Company of more than One Hundred Thousand Dollars ($100,000) annually and (B) cannot be terminated within thirty (30) days after giving notice of termination without resulting in any material cost or any penalty to Company.
(b) Each Contract required to be disclosed in Schedule 2.16(a) of the Company Subsidiaries or their respective operations. Each Contract of a type Previously Disclosed above to this Section 2.2(t) (collectively, the “Material Contracts”), is (i) legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (ii) Disclosure Schedule is in full force and effect and constitutes a legal, valid and binding agreement, enforceable in accordance with its terms and (iii) will continue to be legalterms, valid, binding, enforceableof each party thereto, and neither Company or LLLP nor, to the Knowledge of the Seller Parties, any other party to such Contract is, or has received notice that it is, in full force 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 set forth on Schedule 2.16(c) of the Company Disclosure Schedule, the execution, delivery and effect on identical terms following performance by Company or LLLP of the Option Agreement, this Agreement and the Ancillary Agreements, and the consummation of the transactions contemplated by hereby and thereby, will not (A) result in or give to any Person any right of termination, cancellation, acceleration or modification in or with respect to, (B) result in or give to any Person any additional rights or entitlement to increased, additional, accelerated or guaranteed payments under, or (C) result in the Transaction Documents. Neither the creation or imposition of any Lien upon either Company nor or LLLP or any of the Company Subsidiaries, nor to the Company’s Knowledge, any other party thereto is in default its assets and properties under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the agreement and no party thereto has repudiated any provision of such contract.
Appears in 1 contract
Contracts. Except as Previously Disclosed, neither Section 3(n) of the Company nor Disclosure Schedule lists the following contracts and other agreements to which any Company Subsidiary of Sequa Can and the Sequa Can Subsidiaries is a party to any contracts or agreementsand which are in effect as of the Closing:
(1i) relating any agreement (or group of related agreements) for the lease of personal property to indebtedness or from any Person providing for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) payments in excess of One Hundred Thousand Dollars ($100,000, except for those issued in the ordinary course of business) per annum;
(2ii) that constitutes a collective bargaining any agreement (or other arrangement with any labor union;
(3group of related agreements) that is a “material contract” within for the meaning of Item 601(b)(10) of Regulation S-K;
(4) that is a lease purchase or agreement under which the Company or any of the Company Subsidiaries is lessee sale of, or holds or operates, any property owned by any other Person;
(5) that is a lease or agreement under which commitment for the Company or any of the Company Subsidiaries is lessor purchase and sale of, or permits any Person to hold or operateraw materials, any property owned or controlled by the Company or any of the Company Subsidiaries;
(6) limiting the ability of the Company or any of the Company Subsidiaries to engagecommodities, in any material respectsupplies, in any line of business or to compete, whether by restricting territories, customers or otherwiseproducts, or in any other material respectpersonal property, with any Person;
(7) that is a settlement, conciliation or similar agreementfor the furnishing or receipt of services, the performance of which will extend over a period of more than one year, result in a loss to any of Sequa Can and the Sequa Can Subsidiaries, or involve payment after the First Closing Date of consideration in excess of Two Hundred Fifty Thousand Dollars ($100,000;
(8) that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000250,000);
(9iii) that concerns the sale or acquisition of any material portion of the Company’s business;
(10) that concerns agreement concerning a partnership or joint venture;
(11iv) any agreement (or group of related agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money or capitalized lease or under which it has imposed a Security Interest on any of its assets, tangible or intangible;
(v) any agreement with a sales representative, manufacturer's representative, distributor, dealer, broker, sales agency, advertising agency or other Person engaged in sales, distributing or promotional activities on behalf of the Business, or any agreement to act as one of the foregoing on behalf of any Person wherein the commission or fee to be paid to such agent or representative is calculated by multiplying the gross value of the products sold by the Business by more than five percent (5%);
(vi) any agreement concerning confidentiality or noncompetition;
(vii) any agreement involving aggregate consideration liability any of Sequa and its Affiliates (other than Sequa Can and the Sequa Can Subsidiaries);
(viii) any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or other plan or arrangement for the benefit of its current or former directors, officers, and employees;
(ix) any collective bargaining agreement;
(x) any agreement for the employment of any individual on a full-time, part-time, consulting, or other basis providing annual compensation in excess of Fifty Thousand Dollars ($100,000 and which, in each case, cannot be cancelled by the Company without penalty 50,000) or without more than 90 days’ noticeproviding severance benefits;
(12xi) that concerns any material hedgeagreement under which it has advanced or loaned any amount to any of its directors, collarofficers, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking; andand employees outside the Ordinary Course of Business;
(13xii) any agreement under which the consequences of a default or termination could have a material adverse effect on the business, financial condition, operations or results of operations of any of Sequa Can and the Sequa Can Subsidiaries as a whole; or
(xiii) any other contract, agreement (or understanding material group of related agreements) the performance of which involves consideration in excess of One Hundred Thousand Dollars ($100,000). With respect to each such agreement: (A) the Company or any of the Company Subsidiaries or their respective operations. Each Contract of a type Previously Disclosed above to this Section 2.2(t) (collectively, the “Material Contracts”), agreement is (i) legal, valid valid, binding, enforceable, and binding on the Company and the Company Subsidiaries which are a party to such contract, (ii) is in full force and effect and enforceable in accordance with its terms except as the enforceability hereof or thereof may be subject to the effect of (i) any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting the enforceability of creditors' rights generally, and (iiiii) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and the discretion of the courts in granting equitable remedies; (B) the agreement will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated hereby (including the assignments and assumptions referred to in Section 2 above) except as the enforceability hereof or thereof may be subject to the effect of (i) any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting the enforceability of creditors' rights generally, and (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and the discretion of the courts in granting equitable remedies; (C) except with respect to any express or implied warranty with respect to any product manufactured, sold, leased, or delivered by the Transaction Documents. Neither the Company nor any of Sequa Can and the Company Sequa Can Subsidiaries, nor as to the Company’s Knowledgewhich no representation is made in this clause (C), any other party thereto is in default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company Sequa Can and the Company SubsidiariesSequa Can Subsidiaries are not in breach or default, and to Sequa Can's Knowledge, no other party is in breach or default, under the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contractagreement, and to the Knowledge of the Company, no event has occurred that which with notice or lapse of time would constitute a material breach or default default, or permit termination, modification, or acceleration, under the agreement agreement; and (D) Sequa Can and the Sequa Can Subsidiaries have not, and to Sequa Can's Knowledge, no other party thereto has repudiated any provision of such contractthe agreement.
Appears in 1 contract