Contracts. The Company has Previously Disclosed or provided (by hard copy, 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 or any Company Subsidiary is a party (each, a “Material Contract”): (i) 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, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business; (ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union; (iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K; (iv) 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 Person with annual rent payments in excess of $500,000; (v) 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; (vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to 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; (vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000; (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 $500,000); (ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business; (x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary; (xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice; (xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking; (xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or 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 agreement 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 (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect 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, 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 Material 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. The Company has Previously Disclosed (a) Except for this Agreement, the CME Merger Agreement and any agreements contemplated by CME Merger Agreement or provided (by hard copy, electronic data room or otherwisethe transactions contemplated thereby and any contract set forth in Section 2.19(a) to the Investor or its representatives true, correct and complete copies of each of the following to which the Company or GFI Disclosure Letter, neither GFI nor any Company GFI Subsidiary is a party (eachto or bound by, a “Material Contract”):nor are any of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits under:
(i) 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, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of businessIndebtedness;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement contracts under which the Company GFI or any of the Company GFI Subsidiaries is lessee of, has advanced or holds or operates, loaned any property owned by Person any other Person with annual rent payments amounts in excess of $500,000;
(iii) any material joint venture, partnership, limited liability company, shareholder, or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any partnership, strategic alliance or joint venture;
(iv) any material agreement relating to any strategic alliance, joint development, joint marketing, partnership or similar arrangement;
(v) any lease agreement or agreement under which series of related agreements, including any option agreement, relating to the Company acquisition or disposition of any business or real property (whether by merger, sale of the Company Subsidiaries is lessor ofstock, sale of assets or permits any Person to hold or operate, any property owned or controlled by the Company or any otherwise) for aggregate consideration in excess of the Company Subsidiaries$2,000,000;
(vi) any contract material agreement with (A) any Person directly or agreement limitingindirectly owning, in any material respectcontrolling or holding with power to vote, the ability 5% or more of the Company outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% or more of the Company Subsidiaries outstanding voting securities of which are directly or indirectly owned, controlled or held with power to engage in vote by GFI or any line GFI Subsidiary or (C) any current or former director or officer of business GFI or any GFI Subsidiary related to compete, whether by restricting territories, customers voting Securities of GFI or otherwise, or in any other material respect, with any PersonGFI Subsidiary;
(vii) any settlement, conciliation or similar agreement (including any exclusivity agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(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 $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or 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 agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any material respect either the ability type of the Company business in which GFI or any Company GFI Subsidiary to solicit customers may engage or the manner or locations 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 which any of them may so engage in any business or could require the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose disposition of any material assets or line of business of GFI or any GFI Subsidiary;
(viii) any agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiary;
(ix) any agreement, other than such agreements entered into in the ordinary course of business; and, under which (A) any Person (other than GFI or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000;
(x) any other agreement or amendment thereto that would be required to be filed as an exhibit to any GFI 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 GFI SEC Documents filed prior to the Date of Delivery;
(xi) any agreement under which GFI or any GFI Subsidiaries has granted any Person registration rights (including demand and piggy-back registration rights);
(xii) any agreement that involves expenditures or receipts of GFI or any GFI Subsidiary in excess of $3,000,000 in the aggregate per year;
(xiii) any material agreement with any Governmental Entity;
(xiv) any material agreement between or among Affiliates of GFI;
(xv) any material contract or Lease for the GFI Leased Real Property, and any other agreement that would require relates in any consent way to the occupancy or approval use of a counterparty as a result any of the consummation GFI Leased Real Property; or
(xvi) any agreement the termination or breach of which or the failure to obtain consent in respect of constitutes a Material Adverse Effect.
(b) The agreements, commitments, arrangements and plans, whether written or oral, listed or required to be listed in Section 2.19(a) of the transactions contemplated by this Agreement. Each Material GFI Disclosure Letter together with the GFI License Agreements are referred to herein as the “GFI Contracts.” Except as would not have a material impact on the respective businesses of GFI and the GFI Subsidiaries, (i) neither GFI nor any GFI Subsidiary is and, to the Knowledge of GFI, no other party is, in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Contract (A) is legal, a valid and binding on agreement of GFI or a GFI Subsidiary, as the Company case may be, enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and the Company Subsidiaries which are a party similar laws of general applicability relating to such contractor affecting creditors’ rights or by general equity principles, (Biii) to the Knowledge of GFI, no event has occurred which would result in a breach or violation of, or a default under, any GFI Contract (in each case, with or without notice or lapse of time or both), and (iv) each GFI Contract (including all modifications and amendments thereto and waivers thereunder) is in full force and effect and enforceable in accordance with its terms and (C) will continue respect to be legal, valid, binding, enforceable, and in full force and effect in all material respects following GFI or the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company GFI Subsidiaries, nor as applicable, and, to the Knowledge of the CompanyGFI, 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 with respect to the Knowledge of the Company, each of the other parties thereto, and have performed in all material respects all material obligations required been delivered or 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 Material ContractsParent.
Appears in 5 contracts
Sources: Tender Offer Agreement (BGC Partners, Inc.), Tender Offer Agreement (BGC Partners, Inc.), Tender Offer Agreement (BGC Partners, Inc.)
Contracts. The Company has Except as Previously Disclosed or provided (by hard copyDisclosed, electronic data room or otherwise) to the Investor or its representatives true, correct and complete copies of each of the following to which neither the Company or nor any Company Subsidiary is a party (each, a “Material Contract”):to any contracts or agreements:
(i1) 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 businessbusiness consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000100,000, except for those issued in the ordinary course of business;
(ii2) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii3) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv4) any 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 with annual rent payments in excess of $500,000Person;
(v5) any 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;
(vi6) any contract or agreement limiting, in any material respect, limiting the ability of the Company or any of the Company Subsidiaries to engage 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;
(vii7) any that is a settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000100,000;
(viii) any contract or agreement 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 $500,000100,000);
(ix9) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x10) any alliance, cooperation, that concerns a partnership or joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi11) any contract or agreement involving annual payments aggregate consideration liability in excess of $500,000 that 100,000 and which, in each case, cannot be cancelled by the Company or a Company Subsidiary without penalty on not or without more than 90 days’ notice;
(xii12) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;; and
(xiii13) any contract other contract, agreement or agreement with respect understanding material to the employment or service of any current or former directors, officers, employees or 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 agreement 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 their respective operations. Each Contract of a counterparty as a result of type Previously Disclosed above to this Section 2.2(t) (collectively, the consummation of the transactions contemplated by this Agreement. Each “Material Contract Contracts”), is (Ai) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (Bii) is in full force and effect and enforceable in accordance with its terms and (Ciii) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects 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 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 Material Contractsagreement 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. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwisea) to the Investor or its representatives true, correct and complete copies of each Section 4.14(a) of the Company Disclosure Letter lists the following contracts to which any of the Company or any Company Subsidiary the Subsidiaries is a party (each, a “Material Contract”):or by which it is bound:
(i) any contract (or agreement relating group of related contracts) involving the performance of services or the purchase of goods, materials or other assets 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 foregoingSubsidiaries, but in any event excluding trade payables, securities transactions the performance of which will involve (A) annual payments to or from the Company and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess Subsidiaries of $500,000250,000 or more, except for those issued in or (B) aggregate payments (including termination penalties) to or from the ordinary course Company and the Subsidiaries of business$1,000,000 or more;
(ii) any contract concerning a partnership, limited liability company or agreement that constitutes a collective bargaining or other arrangement with any labor unionjoint venture;
(iii) any contract (or agreement that is a “material contract” within the meaning group of Item 601(b)(10related contracts) under which it has (x) created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, in excess of Regulation S-K$500,000 or (y) imposed an Encumbrance on any of its assets, tangible or intangible;
(iv) any lease contract concerning confidentiality or agreement 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 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 Subsidiaries is lessee of, or holds or operates, any property owned by Material Adverse Effect;
(ix) any other Person with annual rent payments contract (or group of related contracts) the performance of which involves aggregate consideration in excess of (A) $500,000250,000 or more annually, or (B) $1,000,000 or more in the aggregate;
(vx) any lease 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 agreement under similar provisions;
(xi) any contract to which the Company or any of the Company Subsidiaries is lessor of, has continuing indemnification obligations or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to 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;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(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 $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ noticepotential liability;
(xii) any material hedgecontract providing for the sale or exchange of, collaror option to sell or exchange, optionany Property, forward purchasingor for the purchase or exchange of, swapor option to purchase or exchange, derivative or similar agreement, understanding or undertakingany real estate;
(xiii) any contract for the acquisition or agreement with respect to the employment disposition, directly or service indirectly (by merger or otherwise), of any current assets or former directorsEquity Interests of another person for aggregate consideration in excess of $500,000, officers, employees or consultants of the Company or any of the Company Subsidiaries in each case other than, with respect to non-executive employees and consultants, than in the ordinary course of business;
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation pursuant to 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 manages any material assets or business; andreal property;
(xv) any material advertising or other promotional contract providing for payment by the Company or agreement that would require any consent Subsidiary of $250,000 or approval of a counterparty as a result 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 consummation 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 the transactions contemplated by this AgreementSubsidiaries is the licensee or licensor; and
(xvii) each amendment, supplement and modification (whether written or oral) in respect of any of the foregoing.
(b) The Company has 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 Material Contract With respect to each such contract (Aexcept as set forth in Section 4.14(a) of the 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, (B) is in full force and effect and enforceable in accordance with its terms and effect; (Cii) the contract will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects 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 Knowledge of the Company, any other Effective Time; (iii) no party thereto is in material violation breach or default under any Material Contract. No benefits under any Material Contract will be increaseddefault, 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 Material Contractscontract; and (iv) no party has repudiated any provision of the contract.
Appears in 4 contracts
Sources: Merger Agreement (Everlast Worldwide Inc), Merger Agreement (Horowitz Seth), Merger Agreement (Horowitz Seth)
Contracts. The Company has Previously Disclosed or provided (by hard copya) Schedule 5.17(a) lists the following written Contracts (collectively, electronic data room or otherwisethe “Material Contracts”) to the Investor or its representatives true, correct and complete copies of each which any member of the following to which the Company or any Company Subsidiary Group is a party (each, a “Material Contract”):and which are currently in effect:
(i) all Contracts that require annual payments or expenses by, or annual payments or income to, 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 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 businessbusiness consistent with past practice);
(ii) all sales, intercompany indebtedness advertising, agency, lobbying, broker, sales promotion, market research, marketing or similar contracts and immaterial leases agreements, in each case requiring the payment of any commissions by any member of the Company Group in excess of $500,000 annually;
(iii) all employment Contracts, 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 telephonespayment of annual compensation of at least $200,000 (other than oral arrangements for at-will employment), copy machines(B) has material severance or post termination obligations to such Person (other than COBRA obligations, facsimile machines 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 other office equipmentpartnership 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, except for those issued including Contracts licensing Intellectual Property Rights, other than (i) “shrink wrap” licenses, and (ii) non-exclusive licenses granted in the ordinary course of business;
(iivii) all Contracts relating to material secrecy, confidentiality and nondisclosure agreements materially restricting the conduct of any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any 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 with annual rent payments in excess of $500,000;
(v) any 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;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to engage 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 Person;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000geographic area;
(viii) any contract or agreement that relates all Contracts relating to material patents, trademarks, service marks, trade names, brands, copyrights, trade secrets and other material Intellectual Property Rights (other than a license granted to of the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000)Group;
(ix) all Contracts providing for material guarantees, indemnification arrangements and other hold harmless arrangements made or provided by any contract or agreement that concerns the sale or acquisition of any material portion member of the Company’s business;Company Group, including all ongoing agreements for repair, warranty, maintenance, service, indemnification or similar obligations
(x) all Contracts with or pertaining to any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing member of profits or losses relating to the Company or Group to which any Company SubsidiaryAffiliate is a party;
(xi) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which any contract or agreement involving annual member of the Company Group holds a leasehold interest (including the Leases) and which involve payments to the lessor thereunder in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice100,000 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 lines of credit, except any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertakingsuch Contract with an aggregate outstanding principal amount not exceeding $1,000,000;
(xiii) any contract or agreement with respect Contract relating to the employment voting or service control of the equity interests of any current or former directors, officers, employees or consultants member of the Company Group or the election of directors of any member of the Company Subsidiaries (other than, with respect to non-executive employees and consultants, in than the ordinary course Organizational Documents of businessthe Company Group);
(xiv) any contract or agreement 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 whichContract that can be terminated, or the localities in which, all or any portion provisions of which are altered so that the purpose of the business of the Company or the Company Subsidiaries is or can Contract cannot be conductedachieved, 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 Agreement or any of the Additional Agreements; and
(xv) any Contract for which any of the benefits, compensation or payments (Aor the vesting thereof) is legalwith respect to a director, valid and binding on the officer, employee or consultant of a member of Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) Group will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following increased or accelerated by the consummation of the transactions contemplated by hereby or the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Knowledge of the Company, any other party thereto is in material violation amount or default under any Material Contract. No benefits under any Material Contract value thereof 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 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 Material Contractsboard of directors in accordance with the Organizational Documents of such member 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. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwise) Except for Contracts filed as exhibits to the Investor or its representatives trueFiled SEC Documents, correct 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 Disclosure Schedule sets forth a true and complete copies of each of the following list of:
(i) all Contracts to which the Company or any Company Subsidiary of its subsidiaries is a party (eachparty, a “Material Contract”):
(i) any contract or agreement relating that purports to indebtedness for borrowed moneybe binding upon the Company, 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, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under which the Company its subsidiaries or any of the Company Subsidiaries is lessee ofits affiliates, or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000;
that contain a covenant (va "Restrictive Covenant") 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;
(vi) any contract or agreement limiting, in any material respect, 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 line of business that is material to the Company and its subsidiaries, taken as a whole, or to competeParent and its subsidiaries, whether by restricting territoriestaken as a whole, customers or otherwise, with any person or in any other material respectgeographic area, with except for any Person;
such Contract (viix) any settlement, conciliation that would not be expected to result in the Company incurring costs or similar agreement, the performance of which will involve payment after the Closing Date of consideration receiving revenues in excess of $500,0005,000,000 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;
(viiiii) any contract or agreement that relates 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 $500,000foregoing agreements);
(ixiii) any contract or agreement all maintenance agreements for repair and overhaul that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating would be expected to result in the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments incurring costs in excess of $500,000 that cannot be cancelled by 10,000,000 per year (including all material amendments to each of the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;foregoing agreements); and
(xiiiv) as of the date hereof, all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts pursuant to which any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
indebtedness (xiiiwhich term shall include capital leases and operating leases) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees its subsidiaries is outstanding or may be incurred and consultants, in the ordinary course all guarantees of business;
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability of by the Company or any Company Subsidiary to solicit customers of its subsidiaries of any indebtedness of any other person (except for such indebtedness or guarantees of indebtedness the manner in whichaggregate principal amount of which does not exceed $10,000,000), or including the localities in which, all or any portion respective aggregate principal amounts outstanding as of the business 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 or and its subsidiaries (including all guarantees of indebtedness to third parties) as of the Company Subsidiaries is or can be conducted, or (y) right date of first refusal or right of first offer or similar right or that limits or purports to limit the ability this Agreement. None 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 (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) its subsidiaries is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation violation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Knowledge of the Company, 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 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, for violations, defaults, waivers or failures to enforce benefits that individually or in the aggregate would constitute not be 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 breach adverse effect. Except as identified in writing by the Company to Parent prior to the date of this Agreement, the Company has delivered or default made available to Parent or permit termination, modification, or acceleration, under its representatives true and complete copies of all Contracts listed on Section 3.01(h) of the Material ContractsCompany Disclosure Schedule.
Appears in 4 contracts
Sources: Merger Agreement (Us Airways Inc), Merger Agreement (Ual Corp /De/), Merger Agreement (Ual Corp /De/)
Contracts. The (a) Except as filed as an exhibit to a Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwise) SEC Document prior to the Investor or its representatives truedate of this Agreement, correct and complete copies of except for the Company 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 is a party (eachor, a “Material Contract”):
(iafter the Effective Time, the Surviving Corporation or its Subsidiaries) any contract may engage or agreement relating to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien the manner or interest rate or currency hedging agreements (including guarantees locations in respect of which any of the foregoing, but them may so engage in any event excluding trade payables, securities transactions and brokerage agreements arising business in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under which the Company or is currently engaged including any of the Company Subsidiaries is lessee ofcovenant not to compete, or holds or operates, any property owned by any other Person with annual rent payments in excess that could require the disposition of $500,000;
(v) 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;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company assets or any of the Company Subsidiaries to 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;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(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 $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xiv) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled providing for the production by the Company or a any Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current product on an exclusive or former directors, officers, employees requirements basis or consultants of the purchase by the Company or any Company Subsidiary of the Company Subsidiaries other thanany product on an exclusive or output basis, with respect to non-executive employees and consultants, in each case not entered into in the ordinary course of businessbusiness consistent with past practice;
(xivvi) any contract “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC);
(vii) any agreement that involves expenditures or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability 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 by which the Company or any Company Subsidiary licenses or otherwise obtains the right to solicit customers use material Intellectual Property rights of any other Person (other than licenses for readily available commercial software) or by which the manner Company or any Company Subsidiary is restricted in whichits 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 localities termination or breach of which would reasonably be expected to result in whicha Material Adverse Effect on the Company.
(b) The agreements, all or any portion arrangements and plans that are required to be set forth in Section 3.18(a) of the Company Disclosure Letter, or that would be required to 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 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, each Company Contract is a valid and binding agreement of the Company or a Company Subsidiary, as the Company Subsidiaries is or can be conductedcase may be, 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 (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceableeffect, and in full force and effect in all material respects following the consummation none of the transactions contemplated by the Transaction Documents. Neither the Company, any Company nor any of the Company SubsidiariesSubsidiary or, nor to the Knowledge knowledge of the Company, any other party thereto is in default or breach in any material violation 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 default 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 Material ContractsParent.
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. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwise) to the Investor or its representatives true, correct and complete copies of each Section 3.19 of the Seller Disclosure Schedule lists the following contracts and other agreements to which the Company or any Company Subsidiary Seller is a party or is bound in connection with the Business on the date hereof and identifies each such contract (eachif any) in which (i) an officer, director, member, manager or employee of Seller or (ii) an Affiliate of Seller has or holds (directly or indirectly) a “Material Contract”material interest (and Seller will update the Schedule as necessary at least five (5) days prior to Closing):
(i) any contract agreement (or agreement relating group of related agreements), for the lease of personal property 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 from any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of businessPerson;
(ii) any contract agreement (or agreement that constitutes a collective bargaining group of related agreements) requiring capital expenditures or for the purchase or sale of raw materials, commodities, supplies, products or other arrangement with any labor unionpersonal 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 consideration in excess of $100,000;
(iii) any contract agreement concerning a partnership or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-Kjoint venture;
(iv) any lease agreement (or agreement group of related agreements) under which the Company Seller has created, incurred, assumed or guaranteed any indebtedness for borrowed money, or any of the Company Subsidiaries is lessee ofcapitalized lease obligation, or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000500,000 or under which it has granted a Lien with respect to any of the Acquired Assets;
(v) any lease agreement concerning confidentiality 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 Subsidiariesnoncompetition;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Personcollective bargaining agreement;
(vii) any settlement, conciliation or similar agreement, agreement for the performance employment of which will involve payment after the Closing Date of consideration any Key Business Employee providing annual salary (excluding bonus) in excess of $500,00050,000 or providing severance benefits;
(viii) any contract agreement under which Seller has advanced or agreement that relates loaned any amount to Intellectual Property Rights (other than a license granted to any of the Company for commercially available software licensed on standard terms with a total replacement cost Business Employees or Key Business Employees outside the Ordinary Course of less than $500,000)Business;
(ix) any contract agreement under which the consequences of a default or agreement that concerns termination could have a materially adverse effect on the sale financial condition, operations, results of operations or acquisition of any material portion future prospects of the Company’s businessBusiness;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing letters of profits or losses relating intent with respect to the Company or any Company Subsidiary;construction and/or establishment of contemplated Restaurants; and
(xi) any contract other agreement (or agreement involving group of related agreements) the performance of which involves annual payments consideration in excess of $500,000 that cannot be cancelled by 250,000. Seller has delivered to Purchaser a correct and complete copy of each written agreement listed in Section 3.19 of the Company or Seller Disclosure Schedule and a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or written summary setting forth the terms and conditions of each oral agreement with referred to in Section 3.19 of the Seller Disclosure Schedule. With respect to the employment or service of any current or former directors, officers, employees or consultants each such agreement that is listed in Section 3.19 of the Company or any Seller Disclosure Schedule, except as described in Section 3.19 of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of business;
(xiv) any contract or agreement 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 Seller Disclosure Schedule: (A) the agreement is legal, valid valid, binding, enforceable and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and was entered into on an arms length basis; (CB) will continue to be legal, valid, binding, enforceable, and in full force and effect 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 CompanySeller, any other no party thereto is in material violation breach or default under any Material Contract. No benefits under any Material Contract will be increaseddefault, 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 would constitute a material breach or default default, or permit termination, modification, modification or acceleration, under the Material Contractsagreement; and (C) to the Knowledge of Seller, no party has repudiated any provision of the 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. The Company has Previously Disclosed SCHEDULE 5.10 sets forth a list of all Contracts that are (x) material to the business or provided operations of Orion, taken as a whole, to either Orion Party; and (by hard copy, electronic data room or otherwisey) to which any of the Investor Orion Parties are a party, by which either are bound or to which any of their respective assets or properties are subject, as applicable, including but not limited to the following types of Contracts:
(a) 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 act as one of 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 representatives truecredit on; or (iii) has or will have otherwise become responsible with respect to any undertaking of another (except for the negotiation or collection of negotiable instruments in transactions in the ordinary course of business consistent with past practice);
(f) any indenture, correct credit agreement, loan agreement, note, mortgage, security agreement, lease of real property or personal property or agreement for financing;
(g) any Contract involving a 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 Person pursuant to which such Person is granted the authority to act for or on behalf of Orion or Merger Sub, or pursuant to which Orion or Merger Sub are granted the authority to act for or on behalf of any Person;
(j) any Contract relating to any corporate acquisition or disposition of Orion or Merger Sub, or any acquisition or disposition of any subsidiary, division, line of business or real property, in each case during the five years prior to the date of this Agreement; and
(k) any Contract not specified above that is otherwise material to the business or operations of Orion, taken as a whole, to either Orion Party. To the Knowledge of the Orion Parties, Orion has made available to Target true and complete copies of each document listed on SCHEDULE 5.10, and a written description of the following to which the Company or any Company Subsidiary each oral arrangement so listed is a party (each, a “Material Contract”):
(i) 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 contained on SCHEDULE 5.10. The cancellation of any of the foregoing, but in Contracts listed on SCHEDULE 5.10 at any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) 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 Person with annual rent payments in excess of $500,000;
(v) 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 time by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to 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;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(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 $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or 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 agreement 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 (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect 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, any other party or parties thereto is in material violation or default under any would not have an Orion 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 Material ContractsAdverse Effect.
Appears in 3 contracts
Sources: Merger Agreement (Selena Pharmeceuticals Inc), Merger Agreement (Orion Acquisition Corp Ii), Merger Agreement (Orion Acquisition Corp Ii)
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwisea) Section 2.16(a) of the Disclosure Schedule (with paragraph references corresponding to the Investor or its representatives true, correct those set forth below) contains a true and complete copies 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 Parent prior to the execution of this Agreement) to which the Company Company, Galaxy Mall or any Company Subsidiary IMI is a party (each, a “Material Contract”):or by which any of their Assets and Properties are bound:
(i) any contract (A) all Contracts (excluding Plans and Benefit Programs or agreement 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 in respect of any A)) involving an obligation of the foregoingCompany, but Galaxy Mall or IMI 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 of business, intercompany indebtedness 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 any Assets and immaterial leases for telephonesProperties, copy machines, facsimile machines and other office equipment) in excess than dispositions or acquisitions of $500,000, except for those issued inventory in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement business consistent with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) 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 Person with annual rent payments in excess of $500,000;
(v) 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 Subsidiariespast practice;
(vi) all collective bargaining or similar labor Contracts covering any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any PersonEmployee;
(vii) any settlement, conciliation all other Contracts (other than Plans and Benefit Programs or similar agreementAgreements, the performance Real Property Leases and insurance policies listed in Section 2.18 of which will the Disclosure Schedule and those Contracts listed on Section 2.15 or 2.17 of the Disclosure Schedule) with respect to the Business that (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 cost or penalty to the Closing Date of consideration in excess of $500,000;Company, Galaxy Mall or IMI; and
(viii) without limiting any contract of the foregoing, all Contracts relating to any strategic alliance with another Person, 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 agreement that relates its Subsidiaries have entered into approximately 40,000 Contracts with online merchants and, with the consent of Parent, will not be required to Intellectual Property Rights (other than a license granted list each such Contract on the Disclosure Schedule unless any such Contract, individually, is material to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000);
(ix) any contract Business or agreement that concerns the sale or acquisition of any material portion Condition of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing . The Company has hereto furnished to Parent representative examples of profits or losses relating to all of the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess types of $500,000 that cannot be cancelled online merchant Contracts presently used by the Company or a its Subsidiaries. The Company Subsidiary without penalty 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 not more than 90 days’ notice;the Disclosure Schedule unless any such Contract, individually, exceeds $10,000.
(xiib) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiiiEach Contract required to be disclosed in Section 2.16(a) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or 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 agreement 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 (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) 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 (Cii) 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 in all material respects following the consummation Section 2.16(b) of the transactions contemplated by Disclosure Schedule, neither the Transaction Documents. Neither the Company Company, Galaxy Mall nor any of the Company SubsidiariesIMI nor, nor to the Knowledge of the Company, Galaxy Mall or IMI, any other party thereto is to such Contract is, or has received notice that it is, in material 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 2.16(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 Material aggregate with any other Contracts, materially adverse to the Business or Condition of the 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. The Company has Previously Disclosed or provided (by hard copy, 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 or any Company Subsidiary is a party (each, a “Material Contract”):
(i) 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, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000250,000, except for those issued in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) 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 Person with annual rent payments in excess of $500,000250,000;
(v) 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;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to 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;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000250,000;
(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 $500,000250,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 250,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not or without more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or 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 agreement 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 (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect 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, 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 Material Contracts.
Appears in 3 contracts
Sources: Subscription Agreement, Subscription Agreement (FNB United Corp.), Subscription Agreement (FNB United Corp.)
Contracts. The Except as set forth in the Disclosure Letter, neither the Company nor any of its Subsidiaries has Previously Disclosed any current or provided (by hard copyfuture rights, electronic data room responsibilities, obligations or otherwise) to liabilities, in each case as of the Investor or its representatives truedate of this Agreement, correct and complete copies of each under any of the following to which the Company or any Company Subsidiary is a party (each, a “Material Contract”):
(a) any Contract relating to 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 the borrowing of money or pledging or granting a security interest in respect of an aggregate amount of US$5 million or more;
(f) share or stock redemption or purchase agreements or other agreements affecting or relating to the share capital of the Company or any of its Subsidiaries, including, without limitation, any agreement with any shareholder of the Company or any of its Subsidiaries which includes, without limitation, anti-dilution rights, voting arrangements or operating covenants;
(g) any royalty or dividend arrangement that 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;
(h) any material acquisition, merger, asset purchase or other similar agreement;
(i) 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, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement 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 Person with annual rent payments in excess Subsidiaries of $500,000the Company;
(vj) any lease Contract relating to the formation, creation, operation, management or agreement under control of any partnership, joint venture, limited liability company or similar arrangement; or
(k) any Contract that contains a put, call or 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;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to 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;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(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 $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or 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 agreement 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 Material Contracts 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 (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and effect, is enforceable in accordance with its terms terms, subject to the Bankruptcy and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects 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 Knowledge of the Company’s knowledge, no other Person has violated or breached, or committed any other party thereto is in material violation or 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 except, in each case, as would not reasonably be expected to have a Material ContractsAdverse Effect.
Appears in 2 contracts
Sources: Investment Agreement (Alibaba Group Holding LTD), Investment Agreement (Ali YK Investment Holding LTD)
Contracts. The Company has Previously Disclosed or provided (by hard copySet forth in Sections 2.13, electronic data room or otherwise) to the Investor or its representatives true2.14, correct 2.15 and complete copies of each 2.16 of the Company 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 (eachcollectively, a together with all contracts referred to in Sections 2.16, 2.20(c), 2.25 and 2.28, the (“Company Material ContractContracts”):
) (i) contracts between any contract current officer, director or agreement relating to indebtedness for borrowed money, letters stockholder 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, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under which the Company or any of Affiliate thereof on the Company Subsidiaries is lessee ofone hand, or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000;
(v) any lease or agreement under which and the Company or any of subsidiary thereof on the Company Subsidiaries is lessor of, or permits other hand; (ii) contracts under which any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, the ability employee of the Company or any of its subsidiaries is entitled to receive annual payments (including salary and bonuses) in excess of $100,000; (iii) contracts that restrict the Company Subsidiaries to engage or any of 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, credit agreements, security agreements, mortgages, guarantees, promissory notes and other contracts relating to the borrowing of money, other than any such document or agreement between the Company and a subsidiary of the Company or among subsidiaries of the Company; (vi) contracts involving the sale or purchase of goods or service in excess of $500,000 in any year or $5,000,000 over the life of such Company Material Contract; joint venture, partnership and similar agreements; (viii) contracts with any Person;
(vii) any settlement, conciliation respect to capital expenditures or similar agreement, the performance of which will involve payment after the Closing Date of consideration commitments for such expenditures in excess of $500,000;
(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 $500,000);
; (ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual contracts providing for payments in excess of $500,000 that cannot be cancelled by from the United States Government or any prime contractor of the United States Government over the life of such Company Material Contract; and (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 a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedgesuch subsidiary, collarand, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service knowledge of any current or former directorsthe Company, officersagainst the other parties to the Company Material Contracts, employees or consultants of in accordance with their respective terms, subject, in each case, to the Enforceability Exceptions. Neither the Company or any of the Company Subsidiaries other thanits subsidiaries nor, with respect to non-executive employees and consultants, in the ordinary course of business;
(xiv) any contract or agreement 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 (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect 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 knowledge of the Company, 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 any such Company Material ContractsContract.
Appears in 2 contracts
Sources: Acquisition Agreement (Parker Hannifin Corp), Acquisition Agreement (Parker Hannifin Corp)
Contracts. The Company has Previously Disclosed (a) Except as disclosed in the SEC Reports filed with or provided (by hard copy, electronic data room or otherwise) furnished to the Investor SEC on or its representatives trueafter June 14, correct and complete copies of each 2011 or as set forth in Section 3.16(a) of the following Company Disclosure Letter, as of the date of this Agreement, neither the Company nor any of its Subsidiaries is a party to or bound by:
(i) any agreement which the Company or any Company Subsidiary is a party (each, a “Material Contract”):
(i) any contract or agreement relating of its Subsidiaries was required 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, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of file as an exhibit under Item 601(b)(10) of Regulation S-KK 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 lease agreement or arrangement relating to 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 or with respect to the borrowing of money, 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 the Company its Subsidiaries is lessee of, has advanced or holds or operates, any property owned by loaned any other Person with annual rent payments 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 stock or other equity interests of another Person (A) for aggregate consideration under such contract (or series of related contracts) in excess of $500,000100,000 or (B) that contain representations, warranties, covenants, indemnities or other obligations (including indemnification, “earn-out” or other contingent obligations), that are still in 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);
(vviii) any lease 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 material penalty and (II) contracts entered into by the Company and its Subsidiaries in the ordinary course of business consistent with past practice;
(ix) any contracts that are sales, 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 its Subsidiaries of $150,000 or more or (b) aggregate payments to 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 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 business consistent with past practice;
(x) any agreement or arrangement that would prohibit or materially delay or have a Material Adverse Effect on the Merger and the transactions contemplated hereby;
(xi) any contract relating to any currency hedging;
(xii) 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 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 lessor ofhas continuing obligations, liabilities or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiariesduties;
(vixviii) any contract written agreement that grants exclusive rights, rights of refusal, rights of first negotiation or agreement limiting, similar rights to any Person or that limits or purports to limit in any material respect, respect the ability of the Company or any of the Company Subsidiaries to 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;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(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 $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or 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 agreement 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 its Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any material assets asset or business; and;
(xvxix) any material contract 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 obligated to make payments (whether fixed, contingent or otherwise) in excess of $150,000 per annum or $250,000 during the life of the written agreement or group of written agreements.
(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 nor any of its Subsidiaries is a party to any written agreement of guarantee, support, or assumption with respect to the obligations, liabilities (whether accrued, absolute, contingent or otherwise) or indebtedness of any other Person.
(c) Except as set forth in the Company Financial Statements, neither the Company nor any of its Subsidiaries is a party to any written agreement for or relating to the employment by it of any director, employee or officer or other type of written agreement with any of its directors or officers that would require is not terminable by it without cost or other liability, including any consent written agreement requiring it to make a payment to any director, employee or approval of a counterparty officer as a result of the consummation of the transactions contemplated by Merger, any transaction or any written agreement that is entered into in connection with this Agreement. Each Material Contract .
(Ad) is legal, valid and binding on Except as set forth in the Company and Financial Statements, neither the Company nor any of its Subsidiaries which are is a party to such contractany written agreement in which its officers, directors, employees or shareholders or any members of their immediate families is directly or indirectly interested (Bwhether 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.
(e) is All Company Contracts are in full force and effect and enforceable written form or summarized in accordance with its terms and (CSection 3.16(e) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction DocumentsCompany Disclosure Letter. The Company has delivered or made available to Parent a true, correct and complete written copy of each Company Contract, including 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 or any of its Subsidiaries or, to the Company’s Knowledge, with respect to any other 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. Each of the Company Contracts is, and after the consummation of the transactions will continue to be, in full force and effect and is the valid, binding and enforceable obligation of the Company and its Subsidiaries, nor and, to the Knowledge of the Company, 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 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 Material Contractscourt before which any proceeding therefor may be brought.
Appears in 2 contracts
Sources: Merger Agreement (Frederick's of Hollywood Group Inc /Ny/), Merger Agreement (FOHG Holdings, LLC)
Contracts. The Company has Previously Disclosed or provided (by hard copya) Section 4.15(a) of the Disclosure Letter sets forth, electronic data room or otherwise) to as of the Investor or its representatives truedate hereof, correct a true and complete copies list of the following Contracts to which any Group Company is a party or by which any Group Company or any of their respective assets are bound (other than (x) any purchase order, work order or quality agreement that, for each of the following to which foregoing, 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 Company Disclosure Letter or (y) any Company Subsidiary is a party (each, a “Material Contract”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 contract fiscal year;
(ii) [reserved];
(iii) each Contract that is material to the Business or agreement relating to indebtedness for borrowed moneyoperation of the Group Companies, letters of credittaken as a whole, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements containing (including guarantees in respect A) any provision limiting the freedom of any of the foregoing, but Group Company to engage in any event excluding trade payablesline of business or compete with any Person (other than any employee, securities transactions and brokerage agreements arising customer or consultant non-solicitation covenants entered into in the ordinary course of business), intercompany indebtedness (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 immaterial leases for telephoneseach Contract that limits or purports to limit the ability of any Group Company to own, copy machinesoperate, facsimile machines 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 other office equipment) requiring payments after the date of this Agreement in excess of $500,000150,000 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, except 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 those issued 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 credit advanced in the ordinary course of business or (B) to directors, managers, officers or employees for business and travel expenses in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) 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 Person with annual rent payments in excess of $500,000;
(v) 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;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to 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;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(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 $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertakingeach Company Real Estate Lease;
(xiii) each Contract with any contract Governmental Authority or agreement with respect any university, college, research institute or other educational or academic institution that 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 employment 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 service 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 current or former directorsGroup Company, officersin each case, employees or consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees excluding indemnification and consultants, performance guarantee obligations provided for in the ordinary course of business;
(xivxvii) each Contract that is not terminable at will with fewer than 60 days’ prior notice (with no penalty or payment) by any contract 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 containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit similar Contract with any labor organization, union, group or restrict in association covering any respect Business Employee;
(xix) each Contract (A) for 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 employment of any material assets Business Employee providing such Business Employee with target annual compensation or business; and
fees in excess of $350,000, (xvB) providing for the payment of any material contract Cash or agreement that would require any consent other compensation or approval of a counterparty as a result of benefits in connection with or upon the consummation of the transactions contemplated Transactions to any Business Employee or otherwise payable by this Agreement. Each 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;
(xx) each Contract with a Company Material Customer;
(xxi) each Contract with a Company Material Supplier;
(xxii) 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 more other sources on substantially similar terms and in a reasonably timely manner;
(xxiii) each Contract that is a settlement, conciliation or similar agreement with any Governmental Authority that imposes any material unpaid monetary or other material ongoing obligation upon any Group Company;
(xxiv) each Contract with (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, Seller or any Affiliate of Seller (other than any Group Company) or (B) is in full force and effect and enforceable in accordance with any officer or director of Seller or its terms and Affiliates (Cincluding the Group Companies) will continue or any Affiliate thereof (other than a Group Company); or
(xxv) each commitment or agreement to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor enter into any of the Company Subsidiaries, nor to the Knowledge of the Company, 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 Material Contractsforegoing.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Standard Biotools Inc.), Stock Purchase Agreement (Illumina, Inc.)
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwisea) to Section 2.14(a) of the Investor or its representatives Seller Disclosure Schedule sets forth a true, correct and complete copies of each list of the following to which Contracts of Seller in effect as of the Company or any Company Subsidiary is a party date hereof (eachsuch Contracts, a “the "Material Contract”Contracts"):
(i) any contract agreement (or agreement relating to indebtedness group of related agreements) for borrowed moneythe (A) purchase, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect transfer of any real or personal property, Products, materials, supplies or services to Seller of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) an amount or value in excess of $500,00015,000 or (B) sale, except for those issued in the ordinary course lease or other transfer of businessany real or personal property, Products, materials, supplies or services by Seller;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor unionsupply and/or sourcing agreement;
(iii) any contract agreement concerning a partnership, joint development or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-Kjoint venture with any other person;
(iv) any lease mortgages, indentures, loans or agreement under which credit agreements, security agreements or other agreements or instruments relating to the Company borrowing of money or any extension of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000credit (including guarantees);
(v) any lease or agreement under which the Company concerning confidentiality or any of the Company Subsidiaries is lessor ofagreement, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in commitment containing any material respect, covenant limiting the ability freedom of the Company or any of the Company Subsidiaries Seller 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 Personperson;
(vi) any agreement involving any of the stockholders of Seller or their affiliates;
(vii) any settlementprofit sharing, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(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 $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, stock option, forward purchasingstock purchase, swapstock appreciation, derivative deferred compensation, severance, or similar agreement, understanding other plan or undertaking;
(xiii) any contract or agreement with respect to arrangement for the employment or service benefit of any Seller's current or former directors, officers, employees Employees or consultants consultants;
(viii) any collective bargaining agreement;
(ix) any Employment Agreement or consulting agreement, offer of the Company employment, contract or commitment with an Employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization;
(x) any agreement under which Seller has advanced or loaned any amount to any of the Company Subsidiaries its directors, officers, or Employees other than, with respect to non-executive employees and consultants, than business travel advances in the ordinary course of businessbusiness consistent with past practice;
(xi) any royalty agreement or any other agreement obligating payments by Seller in connection with the sale of Products or services by Seller, listing the parties thereto and the duration of and amount of such royalties or other payment;
(xii) any volume purchase and master purchase agreements (A) where Seller is the purchaser of an amount or value in excess of $15,000 or (B) where Seller is required, obligated or entitled to make sales to any person;
(xiii) any maintenance agreements of an amount or value in excess of $15,000;
(xiv) any contract agreement providing for indemnification obligations by Seller with respect to the sale of Products or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability services 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; andrelated to the Business;
(xv) any material contract fidelity or surety bond or completion bond;
(xvi) any requirements Contract relating to obligations to purchase all or substantially all of any product as well as to supply all or substantially all of any Product;
(xvii) any agreement, Contract or commitment relating to capital expenditures or the acquisition by purchase or lease of fixed assets of an amount or value in excess of $15,000;
(xviii) any agreement that would require by its terms does not terminate prior to one (1) year after the date of this Agreement;
(xix) any consent purchase order or approval Contract for the purchase of materials of an amount or value in excess of $1,500 individually or $3,000 in the aggregate;
(xx) any construction contracts of an amount or value in excess of $5,000;
(xxi) any distribution, joint marketing or research and development agreement; and
(xxii) any other agreement, Contract or commitment related to or used in the Business not listed in (i) through (xxi) above.
(b) Seller has delivered to Buyer a counterparty as a result true, correct and complete copy of each written Contract listed in Section 2.14(a) of the consummation Seller Disclosure Schedule and each other written Transferred Agreement and a written summary setting forth the terms and conditions of each oral agreement referred to in Section 2.14(a) of the transactions contemplated by this Seller Disclosure Schedule and each other oral Transferred Agreement. Seller has in all respects (except in immaterial respects) performed, or is now performing, the obligations of, and has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any Contract listed in Section 2.14(a) of the Seller Disclosure Schedule or any other Transferred Agreement, and Seller is not aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Material Contract (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and, except as otherwise disclosed in Section 2.14(b) of the Seller Disclosure Schedule, is not subject to any default thereunder by any party obligated to Seller pursuant thereto. Each Contract is a valid and enforceable obligation against Seller and against the other party thereto in accordance with its terms terms. No third party has raised any claim, dispute or controversy with Seller with respect to any of the Contracts, nor has Seller received written notice or warning of alleged nonperformance, delay in delivery or other noncompliance by Seller with respect to its obligations under any such Contracts.
(c) Schedule 1.1(c) of the Seller Disclosure Schedule accurately lists all Transferred Agreements. The Transferred Agreements, together with any Contracts that are Excluded Assets, are all of the Contracts between any Seller and (C) any third party related to, used in, or necessary for, the operation of the Business as currently conducted. Following the Closing Date, Buyer will continue be permitted to exercise all of the rights any Seller had under the Transferred Agreements without the payment of any additional amounts or consideration other than ongoing fees, royalties or payments which Seller would otherwise be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation of required to pay had the transactions contemplated by this Agreement not occurred.
(d) There are no purchase orders for which advance payments have been made by the Transaction Documents. Neither the Company nor any purchasers prior to delivery by Seller of the Company Subsidiaries, nor to the Knowledge of the Company, any other party thereto is in material violation related Products 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 services or for which advance payment has been made and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, related Products or services 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 Material Contractsnot been provided.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Neomagic Corp), Asset Purchase Agreement (Neomagic Corp)
Contracts. The (a) Except for (i) those Contracts listed in Section 2.22(a) of the Company has Previously Disclosed Disclosure Schedule, indicating for each Contract the applicable sub-section of this Section 2.22(a), or provided (by hard copy, electronic data room or otherwiseii) filed as exhibits to the Investor 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 of its subsidiaries is a party to or bound by:
(i) any distributor, sales, agency or manufacturer’s representative, consulting or technology sharing arrangements involving in 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 type 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, or purporting to limit, in any material respect, the freedom of the Company or its representatives truesubsidiaries or affiliates at any time to engage in any line of business, correct and complete copies to acquire any product or asset from any other Person outside the ordinary course of each 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 following Surviving Corporation to continue the development, manufacture, marketing or distribution of the Company’s products and services or operation of the Company’s business 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 Company Subsidiary of its subsidiaries is a party (eachlessor of real property or any machinery, a “Material 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”):;
(iviii) any contract Contract with any Person with whom the Company does not deal at arm’s length, including any affiliate of the Company or agreement relating to indebtedness any of its subsidiaries;
(ix) any Contract that provides 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 indemnification of any officer, director, employee or agent outside of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business;
(iix) any contract agreement of guarantee, support, indemnification, assumption or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any 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 with annual rent payments in excess of $500,000;
(v) 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;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to 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;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(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 $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract Contract pursuant to which any bank or agreement involving annual payments in excess of $500,000 that cannot be cancelled by financial institution provides or supplies vault cash to the Company or a Company Subsidiary without penalty on not more than 90 days’ noticeany of its subsidiaries;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertakingContract with an armored car carrier;
(xiii) any contract joint venture, partnership or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees joint research and consultants, in the ordinary course of businessdevelopment Contract;
(xiv) any contract Contract the terms of which materially change upon the occurrence of the Merger or agreement containing 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 the right to terminate the Contract upon the occurrence of the Merger or 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
(xxv) non-competition any other Contract that is a material Contract to the Company or exclusive dealing obligations or other obligation which purports its subsidiaries.
(b) Neither the Company nor its subsidiaries is a party to limit or restrict in any respect the ability Contract with a customer of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, that: (i) incorporates by reference all or any portion of the business of the Company such customer’s request for proposal (i.e. “RFP”) or the Company Subsidiaries is or can be conductedCompany’s response to such RFP, 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 (Aii) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects 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 Knowledge of the Company, 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 Material Contracts.
Appears in 2 contracts
Sources: Merger Agreement (Cash Systems Inc), Merger Agreement (Global Cash Access Holdings, Inc.)
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwise) to the Investor or its representatives true, correct and complete copies of each As of the following to which date hereof, neither the Company or nor any Company Subsidiary of its Subsidiaries is a party (each, a “Material to or is bound by any Contract”)::
(ia) any contract or agreement relating 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, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement 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;
(ivb) 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 Person with annual rent payments in excess of $500,000;
(v) 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;
(vi) any contract or agreement limiting, in Contract that imposes any material respect, restriction on the right or 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 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;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(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 $500,000);
(ixc) any contract Contract that (i) obligates the Company or agreement that concerns any of its Subsidiaries (or following the sale Closing, Parent or acquisition 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 other Person or (iii) is a requirements or “take or pay” Contract or otherwise requires the Company to purchase a minimum amount of a particular product from a supplier, in each case, in a manner that is material portion 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 or any of its Subsidiaries that are $1,000,000 in excess of the Company’s businesscapital expenditure budget that has been made available to Parent;
(xe) any alliance, cooperation, joint venture, shareholders, partnership Contract with or similar agreement involving to a sharing of profits labor union or losses relating to the Company or guild (including any Company Subsidiarycollective bargaining agreement);
(xif) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect Contract relating to the employment or service of any current or former directors, officers, employees or consultants Indebtedness for borrowed money of the Company or any of its Subsidiaries having an outstanding principal amount in excess of $1,000,000 that is not disclosed in the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of businessSEC Documents;
(xivg) any contract or agreement containing Contract that grants 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 whichoption, 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 refusal, right of first offer or similar right or any other Lien with respect to any material assets, rights or properties of the Company or its Subsidiaries;
(h) any Contract that limits provides for the acquisition or purports disposition of any asset (other than acquisitions or dispositions of inventory in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) and with any outstanding obligations that are material 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 businessits Subsidiaries; and
(xvi) any material contract joint venture, partnership or limited liability company agreement that would require or other similar Contract relating to the formation, creation, operation, management, control, dissolution, wind-up, exit from or buyout of any consent joint venture, partnership or approval 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 a counterparty the Contracts of the types described in this Section 3.15 is referred to as a result “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 consummation Company Disclosure Letter sets forth a correct and complete list of the transactions contemplated by this Agreementall Material Contracts. Each Material Contract (A) is legal, valid and binding on the Company and the Company each of its Subsidiaries which are a party to such contractthereto and, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect 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 knowledge of the Company, any other party thereto thereto, except for such failures to be 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. Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, there is in material violation or no default under any Material ContractContract by the Company or any of its Subsidiaries party thereto or, to the knowledge of the Company, any other party thereto, and no event has occurred that with the lapse of time or the giving of notice or both would constitute a default thereunder by the Company or any of its Subsidiaries party thereto or, to the knowledge of the Company, any other party thereto. No benefits under There are no material disputes pending or, to the knowledge of the Company, threatened with respect to any Material Contract will be increased, and no vesting neither the Company nor any of its Subsidiaries has received any written notice of the intention of any benefits under other party to a Material Contract to terminate for default, convenience or not renew any Material Contract will be acceleratedContract, by nor to 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 Material ContractsSeven Hills Interest.
Appears in 2 contracts
Sources: Merger Agreement (Continental Building Products, Inc.), Merger Agreement (Continental Building Products, Inc.)
Contracts. The Company (a) TSG has Previously Disclosed or provided (by hard copy, electronic data room or otherwise) to the Investor or its representatives true, correct and complete copies of each of SJET with the following contracts, agreements, leases, licenses, arrangements, commitments, sales orders, purchase orders or any 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 the Company or any Company Subsidiary TSG is a party (each, a “Material Contract”"Contracts"):
(i) any contract Contract (or agreement relating 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, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in employees outside the ordinary course of business;
(iiviii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement Contract under which the Company or any consent of the Company Subsidiaries other party thereto is lessee of, or holds or operates, any property owned by any other Person required in connection with annual rent payments the assignment of such Contract in excess of $500,000;
(v) any lease or agreement under which connection with 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;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to 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;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(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 $500,000)transaction contemplated hereby;
(ix) any contract Contract under which the consequences of a default or agreement that concerns the sale or acquisition of any termination could have a material portion of the Company’s business;adverse effect on TSG; or
(x) any alliance, cooperation, joint venture, shareholders, partnership other Contract (or similar agreement involving a sharing group of profits or losses relating to related Contracts) the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments performance of which involves consideration in excess of $500,000 that cannot be cancelled 10,000.
(b) All Contracts have been duly authorized and delivered by TSG and, any third party thereto, are 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 their respective terms. As to the Contracts, (i) there are no existing breaches or defaults by TSG there under or, by the Company other parties to such Contracts; (ii) no event, act or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedgeomission has occurred or, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or 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 agreement 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 hereby, will occur which (A) is legalwith or without notice, valid and binding on lapse of time or the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect 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, any other party thereto is in material violation happening 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 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 Material Contracts.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Sonic Jet Performance Inc), Stock Purchase Agreement (Sonic Jet Performance Inc)
Contracts. The (a) Except for Contracts between the Company has Previously Disclosed or provided its subsidiaries on the one hand and Parent or a subsidiary of Parent on the other hand, neither the Company nor any of its subsidiaries is a party to or is bound by any of the following Contracts as of the date of this Agreement, except to the extent those Contracts are listed in Section 2.20(a) of the Company Disclosure Letter and are identified thereon using the numbering below, in each case listing (i) the person(s) with whom such Contract is made and (ii) the date thereof:
(i) any employment or consulting Contract with any officer or director, or any Employee (excluding offer letters for “at-will” Employees) or any other type of Contract (whether or not such Contract is an Employment Agreement, as defined in Section 2.13(a)(vi)) with any Employee that is not terminable within thirty (30) days by hard copythe Company without Liability to the Company or Parent, electronic data room including any Contract requiring it to make or accelerate a payment to any Employee on account of the Merger, any Transaction or any Contract that is entered into in connection with this Agreement;
(ii) any Contract or plan, including any stock option plan, stock appreciation right plan or stock purchase plan (A) relating to the sale, issuance, grant, exercise, award, purchase, repurchase or redemption of any shares of Company Common Stock or any other securities of the Company or any of its subsidiaries or any options, warrants, convertible notes or other rights to purchase or otherwise acquire any such shares of stock, other securities or options, warrants or other rights therefor, except for the Company Stock Plans, or (B) any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits of which will be calculated on the basis of any of the Transactions;
(iii) any Contract requiring the Company to engage in ongoing research or development, which obligations extend beyond January 1, 2007 and are not terminable by the Company (with or without penalty) on less than ninety (90) days prior notice;
(iv) any Contract (whether non-compete or otherwise) containing provisions which have or would reasonably be expected to have the effect of prohibiting or impairing any business practice of the Company or any of its subsidiaries (including engaging in research and development or the development or commercialization of any Company Product), any acquisition of property (tangible or intangible) by the Company or any of its subsidiaries, any other conduct of business by the Company or any of its subsidiaries, or otherwise limiting the freedom of the Company or any of its subsidiaries to engage in any line of business in any geographical area or to compete with any person. Without limiting the generality of the foregoing, neither the Company nor any of its subsidiaries has entered into any Contract under which the Company or any of its subsidiaries is prohibited or impaired from engaging in any areas of research or development or from the licensing, manufacturing, selling or distributing any Company Intellectual Property or exploiting any Technology of the Company;
(v) any Contract under which the Company has granted or is obligated to grant any person any “opt-in” rights, exclusive rights, rights of refusal or similar rights;
(vi) any Contract under which the Company is obliged to enter into any further agreement or license, under which the Company is obligated to accept or use manufacturing (including cell culture, bulk manufacturing or fill and finish) capacity or to pay for manufacturing capacity not used or accepted, or under which the Company has any material “take or pay” commitment;
(vii) any Contract relating to the Investor disposition by the Company or any of its subsidiaries of a material amount of assets not in the ordinary course of business, or pursuant to which the Company or its subsidiaries has acquired a business or entity, or material assets of a person (other than purchases in the ordinary course of business that are customarily effected on a purchase order basis), whether by way of merger, consolidation, purchase of stock, purchase of assets, exclusive license or otherwise, or any Contract pursuant to which the Company or any of its subsidiaries has any material ownership interest in any person other than the Company’s subsidiaries;
(viii) any Contract currently in force under which the Company or any of its subsidiaries has continuing obligations to provide to a third person information about any Company Research Program or any other scientific or clinical data produced by the Company, including research, characterization, manufacturing, clinical, pre-clinical or other information and including information regarding the Company’s planned research and development activities;
(ix) any joint venture Contract, collaboration Contract or any other Contract that involves a sharing of revenues, profits, cash flows, expenses (including development expenses) or losses with other persons;
(x) any Contract requiring the Company or any of its subsidiaries to undertake a clinical trial (or to have a third person undertake a clinical trial on the Company’s or its subsidiaries’ behalf) of an existing Company Product or the subject of a Company Research Program;
(xi) any Contract that authorizes any third person to sell, offer for sale, market or otherwise distribute any Company Products or results of any Company Research Programs;
(xii) any mortgages, indentures, guarantees, promissory notes, loans or credit agreements, security Contracts or other Contracts or instruments relating to the borrowing of money or extension of credit, or any currency exchange, commodities or other hedging arrangement or any leasing transaction of the type required to be capitalized in accordance with GAAP;
(xiii) any settlement or litigation “standstill” Contract;
(xiv) any Contract of guarantee, support, assumption or endorsement of, or any similar commitment with respect to, the obligations, liabilities (whether accrued, absolute, contingent or otherwise) or indebtedness of any other person;
(xv) any Contract (including open purchase orders) under which the Company has a commitment to purchase goods, capital equipment, services or other items in excess of $50,000 for any Contract or series of Contracts;
(xvi) any Contract (i) pursuant to which any third person is required to make payments to the Company in excess of $20,000 per annum, (ii) pursuant to which the Company or any of its subsidiaries is obligated to pay any royalty or similar payments, including but not limited to profit sharing or similar payments, or (iii) pursuant to which the Company or any of its subsidiaries is obligated to pay any milestone payment or similar payment, including any payment of a pre-determined amount in excess of $100,000, which payment is contingent on the occurrence of a future event, but excluding any fee-for-service Contract;
(xvii) any Contract pursuant to which the Company or any of its subsidiaries is a lessor or lessee of any equipment or other fixed assets, including machinery, equipment, motor vehicles, office furniture, fixtures or other personal property involving payments in excess of $20,000 per annum or involving any manufacturing equipment with a value in excess of $10,000;
(xviii) any Contract with any person with whom the Company or any of its subsidiaries does not deal at arm’s length;
(xix) any Contract with any investment banker, broker, advisor or similar party, or any accountant, legal counsel or other person retained by the Company, in connection with this Agreement and the Transactions;
(xx) any Contract with any Governmental Entity (a “Government Contract”) or any material federal, state, county, local or foreign governmental consent, license, permit, grant, or other authorization of a Governmental Entity (excluding Company Permits) that is required for the operation in all material respects of the Company’s or any of its subsidiaries’ businesses;
(xxi) any Contract entitling a third person (other than an Employee) to a commission or “finder’s fee” payable by the Company or any of its subsidiaries; or
(xxii) any Contract not otherwise disclosed in Section 2.20 of the Company Disclosure Letter (i) under which the consequences of a default could reasonably be expected to be material to the Company, (ii) that is of the nature required to be filed by Company as an exhibit to an Annual Report on Form 10-K under the Exchange Act; (iii) involving in excess of $100,000 being paid by or to the Company over the term thereof, or (iv) that is otherwise material to the Company or any of its subsidiaries or their respective businesses, operations, properties, assets, financial condition, results of operations or cash flows; any such Contract listed or required to be listed in Section 2.19(b)(iii) or Section 2.20(a) of the Company Disclosure Letter being a “Company Contract”.
(b) Neither the Company nor any of its subsidiaries, nor, to the Company’s knowledge, any other person that is a party to a Company Contract, is in breach, violation or default under, and neither the Company nor any of its subsidiaries has received notice that it has breached, violated or defaulted under, any of the material terms or conditions of any Company Contract. The Company or the applicable Company subsidiary is entitled to all benefits under any Company Contract. Each of the Company Contracts is in full force and effect, and has not been amended in any material respect, except to the extent that such amendment is described in Section 2.20(a) of the Company Disclosure Letter. Except as noted in Section 2.20(b), the Company has delivered or made available to Parent or its representatives true, correct and complete copies of each of the following Company Contracts required to which the Company or any Company Subsidiary is a party (each, a “Material Contract”):
(ibe listed in Section 2.20(a) 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, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under which the Company or any of the Company Subsidiaries is lessee ofDisclosure Letter; provided that, or holds or operatesto the extent that third party confidentiality restrictions expressly prohibit disclosure of such Company Contract to Parent, any property owned by any other Person with annual rent payments in excess of $500,000;
(vSection 2.20(b) 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 Disclosure Letter sets forth a description of the subject matter of each such Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, the ability Contract and a general indication of the Company or any nature of the rights and obligations granted thereunder. The Company Subsidiaries is not a party to 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;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viii) any contract or agreement that relates to Intellectual Property Rights Government Contract (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000Permits);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or 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 agreement 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 (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect 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, 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 Material Contracts.
Appears in 2 contracts
Sources: Merger Agreement (Tanox Inc), Merger Agreement (Genentech Inc)
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwisea) to Section 3.10(a) of the Investor or its representatives true, correct Seller Disclosure Schedule sets forth an accurate and complete copies list as of the date hereof of each of the following Contract to which the Company or any Company Subsidiary is a party (eachparty, a “Material Contract”):which:
(i) any contract or agreement relating to indebtedness for borrowed money, letters includes a term extending more than one (1) year beyond the date 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, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of businessthis Agreement;
(ii) any contract involves future annual expenditures or agreement that constitutes a collective bargaining or other arrangement with any labor unionreceipts by the Company in excess of $5,000 in the aggregate during the term thereof;
(iii) any contract pursuant to which the Company sells products to customers or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-Kvendors;
(iv) relates to the borrowing of money or guarantying any lease obligation for borrowed money or agreement under otherwise, including any Contract that is a (A) mortgage, indenture, note, installment obligation or other instrument relating to the borrowing of money, (B) letter of credit, bond or other indemnity (including letters of credit, bonds or other indemnities as to which the Company is the beneficiary, but excluding endorsements of instruments for collection) or any of the Company Subsidiaries is lessee of(C) currency or interest rate swap, collar or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000hedge agreements;
(v) any lease or agreement under which affects the Company or any of the Company Subsidiaries is lessor ownership of, leasing of, title to, use of, or permits any Person to hold or operate, other possessory interest in any property owned or controlled by the Company or any of the Company SubsidiariesProperties;
(vi) pursuant to which the Company uses Intellectual Property owned by a third party, except for any contract 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 agreement limiting, 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 material respect, way purport to restrict the ability business activity of the Company or any limit the freedom of the Company Subsidiaries to engage in any line of business or business, to compete, whether by restricting territories, customers or otherwise, or in any other material respect, compete with any Person;
(vii) Person or solicit or hire any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viii) any contract or agreement that relates person 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 $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s businessemployment;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating pursuant to which the Company extends a written warranty, guaranty or any Company Subsidiaryother similar undertaking with respect to contractual performance;
(xi) any contract or agreement involving annual provides for payments in excess to Employees as a result of $500,000 that cannot be cancelled the transactions contemplated by the Company or a Company Subsidiary without penalty on not more than 90 days’ noticethis Agreement;
(xii) involves the sale of any material hedge, collar, option, forward purchasing, swap, derivative of the assets of the Company other than in the ordinary course of business or similar agreement, understanding or undertakingfor the grant to any Person of any preferential rights to purchase any of the Company’s assets;
(xiii) relates to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company of any contract operating business or agreement with material assets or the capital stock of any other Person;
(xiv) obligates the Company to provide or obtain products or services for a period of one (1) year or more or requiring the Company to purchase or sell a stated portion of its requirements or outputs;
(xv) under the 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 employment Company party to the Material Contract nor any other party to the Material Contract is in breach or service default under any material provisions of any current such Material Contract except for such breaches or former directors, officers, employees defaults as to which requisite waivers or consultants 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 other thantransactions contemplated by this Agreement, with respect to non-executive employees each Material Contract will, except as otherwise stated in Section 3.10(b) of the Seller Disclosure Schedule, continue in full force and consultants, in the ordinary course of business;
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations effect without penalty 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 adverse consequence triggered by the consummation of the transactions contemplated by this Agreement. Each Material Contract (A) is legal, valid and binding on enforceable as to the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (Cii) will continue rules of law governing specific performance, injunctive relief and other equitable remedies. From January 1, 2011 to be legalthe date hereof, valid, binding, enforceable, and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor (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 Knowledge Seller or the Company that it will stop or, other than generally applicable price increases, materially alter the pricing or terms of the Company, 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 Seller has delivered to the Knowledge Purchaser true, correct and complete copies of the Company, each all 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 Material Contracts, together with all amendments, modifications or supplements thereto.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Capsalus Corp), Stock Purchase Agreement (Genelink Inc)
Contracts. The (a) Except for this Agreement, neither the Company has Previously Disclosed nor any of its subsidiaries is a party to or provided bound by:
(i) any Contract that would be required to be filed by hard copythe Company as a “material contract” 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 (or the rules and regulations promulgated thereunder);
(ii) any Contract that (A) contains covenants binding upon the Company or any of its subsidiaries that materially restricts the ability of the Company or any of its subsidiaries (or which, electronic data room following the consummation of the Merger, could materially restrict the ability of the Surviving Corporation) to compete in any business, or with any person or in any geographic area, except for any such Contract that may be canceled without penalty by the Company or any of its subsidiaries upon notice of ninety (90) days or less or (B) contains exclusivity obligations or restrictions binding on the Company or any its subsidiaries or that would be binding on the Surviving Corporation or any of its affiliates after the Closing, except for any such Contract that may be canceled without penalty by the Company or any of its subsidiaries upon notice of ninety (90) days or less;
(iii) any Contract with respect to a material joint venture, partnership, limited liability company or other similar agreement;
(iv) any Contract that would prevent, materially delay or materially impede the Company’s ability to consummate the Merger or the other transactions contemplated by this Agreement;
(v) any Contract relating to indebtedness incurred by the Company or any of its subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) other than indebtedness incurred in the ordinary course of business consistent with past practice having a principal amount not in excess $3,000,000;
(vi) any Contract or series of related agreements, including any option agreement, relating to the acquisition or disposition of any business, capital stock or assets of any other person or any material real property (whether by merger, sale of stock, sale of assets or otherwise) ), other than employee stock options and any Contracts related to the Investor Investment Assets;
(vii) any Contract pursuant to which a non-affiliated third party licenses (as licensor or licensee) Intellectual Property or information technology owned or used by the Company and its representatives truesubsidiaries (other than any such agreement for off-the-shelf, correct and complete copies commercially available Software with annual royalties of each of less than $1,000,000 in the following aggregate);
(viii) any Contract relating to any interest rate, derivatives or hedging transaction pursuant to which the Company or any Company Subsidiary is a party (each, a “Material Contract”):of its subsidiaries may be required to post collateral for the benefit of any counterparty;
(iix) any contract Contract with any person containing any provision or agreement relating to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien covenant requiring the Company or interest rate or currency hedging agreements (including guarantees in respect of any of its subsidiaries to indemnify or hold harmless any person which is reasonably likely to result in a material liability of the foregoing, but in Company or any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and its subsidiaries other office equipment) in excess of $500,000, except for those issued than Contracts in the ordinary course of business;
(iix) any contract material outsourcing Contract or agreement that constitutes a collective bargaining commitment (including with respect to the outsourcing of any material corporate or other arrangement with operational function or any labor union;aspect thereof); or
(iiixi) any contract investment advisory Contract or agreement any other Contract relating to investment management, investment advisory or subadvisory services pursuant to which any Company Insurance Entity received services in which the Company and its subsidiaries paid in excess of $1,000,000 in the twelve (12) months ended December 31, 2014 or that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under which requires the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person with annual rent payments its subsidiaries to invest in excess of $500,000;1,000,000 pursuant thereto.
(vb) any lease or agreement under which the Company or any Section 3.20(b) of the Company Subsidiaries is lessor ofDisclosure Schedule lists the top five Distribution Agreements, or permits any Person to hold or operate, any property owned or controlled measured by commissions and other fees paid by the Company or any of and its subsidiaries thereunder in the Company Subsidiaries;
twelve (vi12) any contract or agreement limitingmonth period ended December 31, 2014. Each such Contract described in any material respect, the ability of the Company or any of the Company Subsidiaries to 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;
subclauses (viii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(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 $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
through (xi) any contract of clause (a) or agreement involving annual payments in excess of $500,000 that cannot be cancelled clause (b) and each Contract filed by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect the SEC as an exhibit is referred to the employment or service of any current or former directors, officers, employees or 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 agreement 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 herein as a result of the consummation of the transactions contemplated by this Agreement“Material Contract”. Each Material Contract is set forth in Section 3.20 of the Company Disclosure Schedule.
(Ac) A true and complete copy of each Material Contract has been made available to Parent. Each of the Material Contracts and each of the Reinsurance Contracts is legal, 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, each other party to such contract, (B) thereto and is in full force and effect and enforceable in accordance with its terms and (C) will continue effect, except for such failures to be legal, valid, binding, enforceable, valid and binding or to be in full force and effect that have not had and would not, individually or in all material respects following the consummation of the transactions contemplated aggregate, reasonably be expected to have a Material Adverse Effect. There is no default or breach under any Material Contract by the Transaction Documents. Neither the Company nor or any of the Company Subsidiariesits subsidiaries or, nor to the Knowledge knowledge of the Company, any other party thereto is in material violation or default under any Material Contract. No benefits under any Material Contract will be increasedthereto, 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 the lapse of time or the giving of notice or both would constitute a material breach or default or permit terminationbreach thereunder by the Company or any of its subsidiaries or, modificationto the knowledge of the Company, any other party thereto, or accelerationwould result in a termination thereof or would cause or permit the acceleration of or other changes of or to any right or obligation or the loss of any material benefit thereunder, under in each case except as has not had and would not, individually or in the aggregate, reasonably be expected to have a Material ContractsAdverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Phoenix Companies Inc/De), Merger Agreement
Contracts. The (a) Neither the Company nor any of its Subsidiaries is a party to, and none of their respective properties or other assets is subject to, any Contract that is of a nature required to be filed as an exhibit to a report or filing under the Securities Act or the Exchange Act, other than any Contract that is filed as an exhibit to the 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 among 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 Previously Disclosed or provided (by hard copy, electronic data room or otherwise) made available to the Investor or its representatives true, 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 each information), of:
(i) all Contracts of the following Company or any of its Subsidiaries having an aggregate value per Contract, or involving payments by or to the Company or any of its Subsidiaries, of more than $1,000,000 on an annual basis;
(ii) all Contracts to which the Company or any Company Subsidiary of its Subsidiaries is a party (eachparty, a “Material Contract”):
(i) any contract or agreement relating to indebtedness for borrowed moneyby which the Company, 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, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under which the Company its Subsidiaries or any of the Company Subsidiaries its Affiliates is lessee ofbound, or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000;
(v) 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;
(vi) any contract or agreement limiting, in any material respect, 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 line of business or to compete, whether by restricting territories, customers or otherwise, with any person or in any other geographic area;
(iii) all material respect, Contracts of the Company or any of its Subsidiaries with any PersonAffiliate of the Company (other than any of its Subsidiaries);
(iv) 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 involves payments by the Company or 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 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;
(vi) 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 requires consent of or notice to a third party in the event of or with respect to the Merger, including in order to avoid a breach or termination of or loss of benefit under any such Contract;
(vii) all material joint venture, partnership or other similar agreements involving co-investment with a third party to which the Company or any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000its Subsidiaries is a party;
(viii) any contract Contract with a Governmental Authority which imposes any material obligation or agreement that relates to Intellectual Property Rights (other than a license granted to restriction on the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000)or its Subsidiaries;
(ix) all leases, subleases, licenses or other Contracts pursuant to which the Company or any contract of its Subsidiaries use or agreement that concerns the sale or acquisition of hold any material portion property involving payments by or to the Company or any of the Company’s businessits Subsidiaries of more than $500,000 on an annual basis;
(x) all material outsourcing Contracts;
(xi) all Contracts with investment bankers, financial advisors, attorneys, accountants or other advisors retained by the Company or any alliance, cooperation, joint venture, shareholders, partnership of its Subsidiaries involving payments by or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of its Subsidiaries of more than $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ noticean annual basis;
(xii) all Contracts providing for the indemnification by the Company or any of its Subsidiaries of any person, except for any such Contract that (i) is not material hedge, collar, option, forward purchasing, swap, derivative to the Company or similar agreement, understanding or undertaking;any of its Subsidiaries and (ii) was entered into in the ordinary course of business; and
(xiii) all Contracts pursuant to which any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of its Subsidiaries of any indebtedness of any other than, with respect to non-executive employees person (other than the Company or any of its Subsidiaries) (except for such indebtedness or guarantees the aggregate principal amount of which does not exceed $1,000,000 on an annual basis and consultants, excluding trade payables arising in the ordinary course of business;).
(xivi) any contract or agreement 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 None of the Company or any of the Company its Subsidiaries (x) is, or has received written notice or has Knowledge that any other party to ownany of its Contracts is, operatein violation or breach of or default (with or without notice or lapse of time or both) under, sellor (y) has waived or failed to enforce any rights or benefits under, 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 (A) to which it is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contractor any of its properties or other assets is subject, (B) is in full force and effect and enforceable in accordance with its terms and (Cii) will continue to be legal, valid, binding, enforceable, and in full force and effect 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, 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, 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 Company Material ContractsAdverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Mgi Pharma Inc), Merger Agreement (Guilford Pharmaceuticals Inc)
Contracts. (a) The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwise) to the Investor or its representatives true, correct Disclosure Schedule contains a true and complete copies list of each of the following written or oral contracts, agreements or other arrangements to which the Company or any Company Subsidiary is a party or by which any of its Assets and Properties is bound (eachand, a “Material Contract”to the extent oral, accurately describes the terms of such contracts, agreements and arrangements):
(i) any contract all collective bargaining 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, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of businesssimilar labor agreements;
(ii) all contracts for the employment of any contract or agreement that constitutes a collective bargaining officer, employee or other arrangement with any labor unionperson or entity on a full time, part time, consulting or other basis;
(iii) 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 contract material asset or agreement that is a “material contract” within group of assets of the meaning of Item 601(b)(10) of Regulation S-KCompany;
(iv) all guarantees of 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 Person with annual rent payments in excess of $500,000obligation;
(v) any lease all leases or agreement agreements under which the Company is lessee or any of the Company Subsidiaries is lessor of, or permits any Person to hold holds, or operateoperates, any property property, real or personal, owned or controlled by the Company or any of the Company Subsidiariesother party;
(vi) any contract all commitments, contracts, sales contracts, purchase orders, mortgage agreements or agreement limiting, in any material respect, groups of related agreements with the ability of the Company same party or any group or affiliated parties which require or may in the future require payment of any consideration by the Company Subsidiaries to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any PersonCompany;
(vii) all license agreements, distribution agreements or any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000other agreements involving any Company Intellectual Property;
(viii) all subscription or registration rights agreements or any contract or agreement that relates to Intellectual Property Rights (other than a license granted agreements related to the Company for commercially available software licensed on standard terms with a total replacement cost equity ownership of less than $500,000)the Company;
(ix) all contracts or commitments that in any contract or agreement that concerns way restrict the sale or acquisition of any material portion of Company from carrying on its business anywhere in the Company’s business;world; and
(x) any allianceall other contracts and agreements that (A) involve the payment or potential payment, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating pursuant to the Company or terms of any Company Subsidiary;
(xi) any such contract or agreement involving annual payments in excess of $500,000 that agreement, by the Company and (B) cannot be cancelled by terminated within thirty (30) days after giving notice of termination without resulting in any cost or penalty to the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;Company.
(xiib) any material hedgeEach contract, collar, option, forward purchasing, swap, derivative agreement or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, arrangement disclosed in the ordinary course of business;
(xiv) any contract or agreement 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 (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) 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 (C) 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 in all material respects following the consummation violation or breach of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Knowledge of the Companyor default under, any such contract, agreement or arrangement. The other party thereto is parties to any such contract, agreement or arrangement are not in material violation or breach of or default under any Material Contractsuch contract, agreement or arrangement. No benefits under None of the present or former employees, officers, directors or shareholders of the Company is a 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 oral or written contract or agreement prohibiting 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 them from freely competing with other parties or engaging in 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 Material Contracts's as now operated.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Comps Com Inc), Stock Purchase Agreement (Comps Com Inc)
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwisea) Section 2.18(a) of the Disclosure Schedule (with paragraph references corresponding to the Investor or its representatives true, correct those set forth below) contains a true and complete copies list of each of the following Contracts or other arrangements (true and complete copies of which, 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) currently in effect, to which the Company or any Company Subsidiary is a party (each, a “Material Contract”):or by which any of its Assets and Properties is bound:
(iA) all Contracts (excluding Benefit Plans) providing for a commitment of employment or consultation services for a specified or unspecified term or otherwise relating to employment or the termination of employment of any Employee, the name, position and rate of compensation of each Employee and the expiration date of each such Contract; and (B) any contract written representations, commitments, promises or agreement relating communications (excluding Benefit Plans and any such Contracts referred to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements in clause (including guarantees in respect of any A)) involving an obligation 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 of business, intercompany indebtedness and immaterial leases for telephonesto any Employee or former employee; (ii) all Contracts with any Person containing any provision or covenant prohibiting or limiting the ability of the Company to engage in any business activity or compete with any Person or prohibiting or limiting the ability of any Person to compete with the Company; (iii) all partnership, copy machinesjoint venture, facsimile machines and shareholders’ or other office equipmentsimilar Contracts with any Person including, without limitation, the partnership agreement of the Company; (iv) all Contracts relating to Indebtedness of the Company (in the aggregate in excess of $500,00010,000); (v) all Contracts with distributors, except for those issued dealers, manufacturer’s representatives, sales agencies or franchisees; (vi) all Contracts relating to (A) the future disposition or acquisition of any Assets and Properties other than dispositions or acquisitions in the ordinary course of business;
business consistent with past practice and (iiB) any contract merger or agreement that constitutes a business combination; (vii) all Contracts between the Company, on the one hand, and Sellers or any Affiliate of Sellers, on the other hand; (viii) all collective bargaining or other arrangement with any similar labor union;
Contracts; (iiiix) any contract all Contracts that (A) limit or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) 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 Person with annual rent payments in excess of $500,000;
(v) 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;
(vi) any contract or agreement limiting, in any material respect, contain restrictions on the ability of the Company to declare or make distributions on, in respect of or to issue or purchase, redeem or otherwise acquire its partnership interests, or incur Indebtedness, to incur or suffer to exist any Lien, to purchase or sell any Assets and Properties, to change the lines of the Company Subsidiaries business in which it participates or engages or to engage in any line business combination or (B) require the Company to 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;
indicia of financial condition; and (viix) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viii) any contract or agreement that relates to Intellectual Property Rights all other Contracts (other than a license granted Benefit Plans, leases listed in Section 2.15(a) of the Disclosure Schedule and insurance policies listed in Section 2.20 of the Disclosure Schedule) that (A) involve the payment or potential payment, pursuant to the terms of any such Contract, by or to the Company for commercially available software licensed on standard terms with a total replacement cost of less more than $500,000);
10,000 annually and (ixB) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by terminated within thirty (30) days after giving written notice of termination without resulting in any material cost or penalty to the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;Company.
(xiib) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiiiEach Contract required to be disclosed in Section 2.18(a) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or 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 agreement 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 (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) Disclosure Schedule is in full force and effect and constitutes a legal, valid and binding agreement, enforceable in accordance with its terms and (C) will continue to terms, of each party thereto, except as the same may be legallimited by bankruptcy, validinsolvency, binding, enforceablemoratorium or similar rights whether in a proceeding at law or in equity, and except as disclosed in full force and effect in all material respects following the consummation Section 2.18(b) of the transactions contemplated by the Transaction Documents. Neither Disclosure Schedule, neither the Company nor any of the Company Subsidiariesnor, nor to the Knowledge of the CompanySellers, any other party thereto is to such Contract is, or has received written notice that it is, in material 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 or permit termination, modification, or acceleration, under the Material Contractsany such Contract) in any material respect.
Appears in 2 contracts
Sources: Purchase Agreement (Viewpoint Corp), Purchase Agreement (Viewpoint Corp)
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwisea) to the Investor or its representatives true, correct and complete copies of each Section 6.13 (a) of the Parent Disclosure Letter lists the following Contracts to which the Company Parent or any Company Subsidiary of its Subsidiaries is a party (each, a “Material Contract”):that are in effect as of the date hereof:
(i) any contract 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 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, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of businessits Subsidiaries is a party to or bound;
(ii) each Contract not contemplated by this Agreement that materially limits the ability of Parent or any contract of its Subsidiaries to engage in its business or agreement that constitutes a collective bargaining or other arrangement with compete in any labor unionmanner;
(iii) each Contract that creates a partnership, joint venture or any contract strategic alliance with respect to Parent or agreement that is a “material contract” within any of its Subsidiaries, other than the meaning organizational documents of Item 601(b)(10) of Regulation S-KParent or its Subsidiaries;
(iv) each employment, consulting, services or similar Contract with any lease employee, consultant or agreement under which the Company independent contractor of Parent or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000its Subsidiaries;
(v) any lease each indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage or agreement under which the Company other evidence of Indebtedness or any Contract providing for Indebtedness in excess 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$1,000,000;
(vi) any contract each Contract that relates to the acquisition or agreement limitingdisposition, in directly or indirectly, of any material respect, the ability of the Company or any of the Company Subsidiaries to engage in any line of business or to compete, (whether by restricting territoriesmerger, customers sale of stock, sale of assets or otherwise) or material asset, or in including any vessel, other material respect, with any Personthan this Agreement;
(vii) each Contract that relates to the acquisition or disposition, directly or indirectly (whether by merger, sale of stock, sale of assets (including any settlementParent Vessel) or otherwise), conciliation by Parent or similar agreement, the performance any of which will involve payment its Subsidiaries after the Closing Date date of this Agreement of assets or any material business for consideration with a fair market value in excess of $500,0001,000,000;
(viii) any contract or agreement that relates to Intellectual Property Rights (other than a license granted Contract related to the Company for commercially available software licensed on standard terms with a total replacement cost acquisition or disposition, directly or indirectly (by merger, sale of less than $500,000stock, 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 contract or agreement that concerns of its Subsidiaries and other Contracts with respect to Newbuildings and the sale or acquisition of any financing thereof, including performance guarantees, counter guarantees, refund guarantees, material portion of the Company’s businesssupervision agreements and material plan verification services agreements;
(x) any allianceeach operating agreement, cooperationmanagement agreement, joint venturecrewing agreement, shareholders, partnership Contract of affreightment or financial lease (including sale/leaseback or similar agreement involving a sharing of profits or losses relating arrangements) with respect to the Company or any Company SubsidiaryParent Vessel;
(xi) any contract Contract with a Third Party for the charter of any Parent Vessel, other than any (A) voyage charter or agreement involving annual payments in excess (B) time charter with a duration of $500,000 that cannot be cancelled by the Company 12 months or a Company Subsidiary without penalty on not more than 90 days’ noticeless;
(xii) each collective bargaining agreement or other Contract with a labor union to which Parent or any material hedge, collar, option, forward purchasing, swap, derivative of its Subsidiaries is a party or similar agreement, understanding or undertakingotherwise bound;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company each Contract that provides for indemnification by Parent or any of the Company its Subsidiaries to any Person other than, with respect to non-executive employees and consultants, than a Contract entered into in the ordinary course of businessbusiness or that is not material to any of Parent or its Subsidiaries;
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation each Contract to 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 Parent or any of the Company its Subsidiaries to own, operate, sell, transfer, pledge is a party or otherwise dispose of bound that contains a so-called “most favored nations” provision or similar provisions requiring Parent or its Affiliates to offer to a Person any material assets terms or businessconditions that are at least as favorable as those offered to one or more other Persons; and
(xv) each Contract involving a standstill or similar obligation of Parent or any material contract or agreement that would require any consent or approval of a counterparty as a result its Subsidiaries.
(b) Parent has heretofore made available to the Oceanbulk Companies true and complete copies of the consummation Parent Material Contracts as in effect as of the transactions contemplated by this Agreementdate hereof. Each Except for breaches, violations or defaults which would have a Parent Material Contract (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contractAdverse Effect, (Bi) each of the Parent Material Contracts is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, enforceable and in full force and effect in all material respects 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 Knowledge of the Company, Parent any other party thereto is in material violation to a Parent Material Contract has violated any provision of, 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 under, or give rise to any Material Contract. No benefits under any Material Contract will be increasedright of cancellation or termination of or consent under, 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 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 any Parent Material ContractsContract.
Appears in 2 contracts
Sources: Merger Agreement (Oaktree Capital Management Lp), Merger Agreement (Star Bulk Carriers Corp.)
Contracts. The Company has Previously Disclosed (a) Section 4.14 of the Disclosure Schedule contains a list of the following written or provided oral contracts that are Acquired Contracts or to which an Acquired Subsidiary is party (by hard copy, electronic data room or otherwisethe “Material Contracts”) to (and each Material Contract is listed under a heading in such Section that corresponds with the Investor or its representatives true, correct and complete copies of each of applicable clause among the following to which the Company or any Company Subsidiary is a party (each, a “such Material Contract”Contract relates):
(i) any contract that involves the performance of services or agreement relating delivery of goods or materials by the Business that is reasonably expected 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 result in respect of any of revenue after the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) date hereof in excess of $500,000, except for those issued 100,000 in any twelve month period (other than open purchase orders made in the ordinary course Ordinary Course of businessBusiness);
(ii) contract that involves the performance of services for, 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 contract or agreement that constitutes a collective bargaining or twelve month period (other arrangement with any labor unionthan open sales orders made in the Ordinary Course of Business);
(iii) contract for the employment of Person by the Business on a full-time, part-time, consulting or other basis, including any such contract that (A) provides annual cash or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) 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 Person with annual rent payments compensation in excess of $500,000;
100,000, (vB) any lease or agreement under which provides for 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;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to 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;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(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 $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or 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 agreement containing any (x) non-competition or exclusive dealing obligations cash or other obligation which purports to limit compensation 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 benefits upon the consummation of the transactions contemplated by this Agreement. , or (C) provides for any severance payments;
(iv) contract that restricts the ability of Seller or any of its Affiliates to engage in any business, including the Business, or compete with any Person with respect to the Business or any other 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 (A) is legal, a valid and binding on obligation of Seller or the Company and relevant Acquired Subsidiary, enforceable against Seller or the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable 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 (Cii) will continue to be legal, valid, binding, enforceable, and applicable equitable principles (whether considered in full force and effect a proceeding at law or in all material respects following equity). Seller or 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, any other party thereto 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 relevant Acquired Subsidiary has provided to Buyer a true, correct and complete copy of each written Material ContractsContract 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. The (a) Section 3.8(a) of the Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwise) to the Investor or its representatives true, correct and complete copies 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 (each, a “Material Contract”):party:
(i) each contract that would be required to be filed as an exhibit to a Registration Statement on Form S-1 under the Securities Act or an Annual Report on Form 10-K under the Exchange Act (if such registration statement or report was filed by the Company with the SEC on the date of this Agreement);
(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 relating 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 of credit, capital lease obligations, obligations secured money is guaranteed 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 its Subsidiaries;
(vii) each customer or supply contract (excluding trade payables, securities transactions and brokerage agreements arising purchase orders given or received in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) under which the Company or any Subsidiary of the Company paid to or received from such customer or supplier in excess of $500,0002,000,000 in fiscal year 2006;
(viii) each material contract to license to any third party to manufacture or reproduce any of the products, except 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 those issued 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;
(iixxi) each contract relating to the disposition or acquisition by the Company or any contract of its Subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business, or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under pursuant to which the Company or any of the Company its Subsidiaries is lessee ofhas any material ownership interest or a right to any ownership interest, or holds or operates, any property owned by in any other Person with annual rent payments in excess of $500,000or other business enterprise other than the Company’s Subsidiaries;
(vxxii) any lease each material contract which grant or agreement under benefit a right of first refusal or first offer or similar rights;
(xxiii) each agreement, contract or commitment pursuant to which the Company or any of the Company its Subsidiaries is lessor of, or permits obligated to pay in the future in excess of $1,000,000 in any Person to hold or operate, any property owned or controlled one-year period which is not terminable by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company its Subsidiaries to 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;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration without penalty in excess of $500,000100,000 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;
(viiixxiv) any each material “single source” supply contract pursuant to which goods 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 $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating materials are supplied to the Company or any Subsidiary of the Company Subsidiaryfrom an exclusive source;
(xixxv) each material contract which following the Offer or the Merger that would by its terms contain a material restriction on sales in any contract jurisdiction or agreement involving annual payments which by its terms would impose any material financial obligation, in excess of $500,000 that cannot be cancelled by each case, on the Parent or its Affiliates (other than the Company or a Company Subsidiary without penalty on not more than 90 days’ noticeand its Subsidiaries);
(xiixxvi) each material executory settlement agreement entered into within three years prior to the date of this Agreement; and
(xxvii) any contract, or 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 hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) adverse effect on any contract or agreement with respect to the employment material product or service of any current or former directors, officers, employees or consultants 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 other than, with respect Disclosure Schedule is referred to non-executive employees and consultants, in the ordinary course of business;
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability as a “Material Contract”. Each 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 Material Contracts 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 (A) is legal, valid and binding on the Company and or the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any Subsidiary of the Company Subsidiaries, nor to the Knowledge of the Company, any other that is a party thereto is in material violation 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 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 any Material ContractsContract, except for breaches and defaults that do not constitute a Company Material Adverse Effect.
(d) The Company has made available to Parent correct and complete copies of each Material Contract, together with all amendments and supplements thereto.
Appears in 2 contracts
Sources: Merger Agreement (Acer Inc), Merger Agreement (Gateway Inc)
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwise) to the Investor or its representatives true, correct and complete copies of each As of the following to which date of this Agreement, neither the Company or nor any Company Subsidiary of its Subsidiaries is a party (each, a “Material Contract”):to:
(i) any contract or agreement relating 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, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement 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;
(ivii) 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 Person with annual rent payments in excess of $500,000;
Contract that (vA) 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;
(vi) any contract or agreement limiting, in any material respect, restricts the ability of the Company or any of its Subsidiaries (or, after the Closing, would restrict Parent, TopCo or any of their respective Subsidiaries) in any material respect to compete with any other person or acquire or dispose of the securities of another person and (B) is material to the Company and its Subsidiaries, taken as a whole;
(iii) 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 related to the governance or operation of any joint venture, partnership or similar arrangement, other than such Contract solely between or among any of the Company and any of its Subsidiaries;
(v) any Contract expressly limiting or restricting the ability of the Company or any of its Subsidiaries to engage 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 line fiscal year period or $1.0 billion in the aggregate over the term of business such Contract, except for any such Contract that may be canceled by the Company, without any material penalty or other liability to competethe Company or any of its Subsidiaries, whether by restricting territories, customers upon notice of 180 days or otherwise, or in any other material respect, with any Personless;
(vii) any settlementContract that involves, conciliation or similar agreementis reasonably expected in the future to involve, the performance of which will involve payment after the Closing Date of consideration in excess annual revenues of $500,000500.0 million in the aggregate;
(viii) any contract or agreement that relates to Intellectual Property Rights (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 license granted to “most favored nation” or any similar term for the benefit of a third party that restricts the business of the Company for commercially available software licensed on standard terms with (or would, after the Closing, restrict the business of Parent, TopCo or any of their respective Subsidiaries) in a total replacement cost of less than $500,000)material manner;
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s businesscollective bargaining agreement;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to Contract under which the Company or any Company Subsidiary;
(xi) of its Subsidiaries has advanced or loaned any contract or agreement involving annual payments in excess amount of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) money to any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any its current or former directors, officers, employees or consultants consultants, in each case with a principal amount in excess of $100,000;
(xi) any material Contract that includes any Affiliate of the Company or any (other than a Subsidiary of the Company Subsidiaries Company) as a counterparty or third party beneficiary;
(xii) any Contract to acquire all or a portion of the capital stock, business, property or assets of any other than, with respect to person for an amount of cash (or value of non-cash consideration) in excess of $500.0 million;
(xiii) any Contract in favor of directors or executive employees and consultants, in the ordinary course of business;officers relating to employment or compensation or providing rights to indemnification; or
(xiv) any contract Contract the loss or agreement containing any breach of which would reasonably be expected to have a Company Material Adverse Effect. Each such Contract described in clauses (xi) non-competition through (xiv) above is referred to herein as a “Company Specified Contract”. The Company has delivered or exclusive dealing obligations or other obligation which purports made available to limit or restrict in any respect the ability Parent true and complete copies of all Company Specified Contracts. Each 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 Specified Contracts 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 (A) is legal, valid and binding on the Company and or the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any Subsidiary of the Company Subsidiaries, nor to the Knowledge of the Company, any other party thereto is in material violation 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 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 Company Material ContractsAdverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Williams Companies Inc), Merger Agreement (Williams Companies Inc)
Contracts. The (a) Except as filed as an exhibit to a Company has Previously Disclosed 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 provided bound by, nor are any of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits under:
(i) any agreement relating to indebtedness (other than agreements among direct or indirect wholly-owned Company Subsidiaries) in excess of $5 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 hard copymerger, electronic data room sale of stock, sale of assets or otherwise);
(iv) any agreement (including any exclusivity agreement) that purports to limit or restrict in any material respect either the Investor or its representatives true, correct and complete copies type of each of the following to business in which the Company or any Company Subsidiary is a party (eachor, a “Material Contract”):
(iafter the Effective Time, the Surviving Corporation or its Subsidiaries) any contract may engage or agreement relating to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien the manner or interest rate or currency hedging agreements (including guarantees locations in respect of which any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) 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 Person with annual rent payments in excess of $500,000;
(v) 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;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to 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 or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(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 $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xiv) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled providing for the production by the Company or a any Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current product on an exclusive or former directors, officers, employees requirements basis or consultants of the purchase by the Company or any Company Subsidiary of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of businessany product on an exclusive or output basis;
(xivvi) any contract 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 agreement containing any (x) non-competition that involves expenditures or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability 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;
(viii) any agreement by which the Company or any Company Subsidiary licenses or otherwise obtains the right to solicit customers use material Intellectual Property rights of any other Person (other than licenses for readily available commercial software) or 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 manner failure to obtain consent in whichrespect 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 the localities oral, listed or required to be listed in which, all or any portion Section 3.18(a) of the business Company Disclosure Letter are referred to herein as the “Company Contracts.” Each Company Contract is a valid and binding agreement of the Company or a Company Subsidiary, as the Company Subsidiaries is or can be conductedcase may be, 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 (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceableeffect, and in full force and effect in all material respects following the consummation none of the transactions contemplated by the Transaction Documents. Neither the Company, any Company nor any of the Company SubsidiariesSubsidiary or, nor to the Knowledge knowledge of the Company, any other party thereto is in default or breach in any material violation or default 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 Material ContractsParent.
Appears in 2 contracts
Sources: Merger Agreement (CF Industries Holdings, Inc.), Merger Agreement (CF Industries Holdings, Inc.)
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwisea) to Schedule 6.11(a) of the Investor or its representatives true, correct and complete copies of each Disclosure Schedules contains a list of the following Contracts to which any of the Company or any Company Subsidiary Entities is a party (each, a “Material Contract”):or by which any of the Company Entities is bound:
(i) any contract each Contract with a Significant Customer (as defined herein below), Significant Supplier (as defined herein below) and each other Contract that involves performance of services or agreement relating delivery of goods or materials 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 Company Entities of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) an amount or value in excess of $500,000, except for those issued in the ordinary course of business750,000;
(ii) each Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of any contract or agreement that constitutes a collective bargaining or other arrangement with any labor unionof the Company Entities in excess of $100,000;
(iii) each Contract affecting the ownership of, leasing of, title to, use of or any contract leasehold or agreement that is other interest in any real or personal property (excepting personal property leases and installment and conditional sales agreements having a “material contract” within the meaning value per item or aggregate payments of Item 601(b)(10less than $100,000 and with a term of less than one (1) of Regulation S-Kyear);
(iv) each Contract with any lease labor union or agreement under which the Company or any other employee representative of the Company Subsidiaries is lessee ofa group of employees relating to wages, or holds or operates, any property owned by any hours and other Person with annual rent payments in excess conditions of $500,000employment;
(v) any lease each partnership, joint venture or agreement under which the Company other Contract involving a sharing of profits, losses, costs or liabilities by any of the Company Subsidiaries is lessor of, or permits Entities with any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiariesother Person;
(vi) any contract or agreement limiting, each Contract containing covenants that in any material respect, the ability of the Company or way purport to restrict any of the Company Subsidiaries Entity’s (A) business activity, (B) freedom 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, including any Contracts requiring such Company Entity to maintain an exclusive relationship or requiring such Company Entity to not to compete or to not to solicit in any manner, (C) ability to increase prices to a customer of the Business, or (D) operation of the Business;
(vii) each Contract providing for payments to or by any settlementPerson based on sales, conciliation purchases or similar agreementprofits, other than direct payments for goods in the performance Ordinary Course of which will involve payment after the Closing Date of consideration in excess of $500,000Business;
(viii) each power of attorney (or similar grant of authority) of any contract or agreement that relates to Intellectual Property Rights (other than a license granted to of the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000)Entities that is currently effective and outstanding;
(ix) each Contract that contains or provides for an express undertaking by any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s businessCompany Entities be responsible for consequential damages or indemnification obligations;
(x) each Contract for capital expenditures in excess of $100,000 for any alliance, cooperation, joint venture, shareholders, partnership item or similar agreement involving a sharing of profits or losses relating to $250,000 in the Company or any Company Subsidiaryaggregate;
(xi) each executive employment Contract that provides for employment of senior executives or management personnel by any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company Entities on a full-time, part-time or a Company Subsidiary without penalty on not more than 90 days’ noticeother basis;
(xii) each Contract for any material hedge, collar, option, forward purchasing, swap, derivative independent contractor or similar agreement, understanding or undertakingconsultant providing services to any of the Company Entities;
(xiii) any contract each written warranty, guaranty or agreement other similar undertaking with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company or contractual performance executed by any of the Company Subsidiaries Entities other than, with respect to non-executive employees and consultants, than in the ordinary course Ordinary Course of businessBusiness;
(xiv) any contract Contract relating to the acquisition or agreement containing disposition, directly or indirectly, of any (x) non-competition or exclusive dealing obligations business, Real Property 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 whichassets, 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 Equity Interests of any material assets or business; andother Person;
(xv) any material contract Contract relating to Indebtedness, the borrowing of money, or agreement that would the guaranty of another Person’s borrowing of money or other obligation, including, without limitation, all notes, mortgages, indentures and other obligations, guarantees of performance, letters of credit, advances, and agreements and instruments for or relating to any lending or borrowing;
(xvi) any Contract under which the execution and delivery of this Agreement or any Ancillary Document may cause a default, give rise to any right of termination, cancellation or acceleration, or require any consent Consent;
(xvii) any Contract involving the settlement, release, compromise or approval waiver of a counterparty as a result any material rights, claims, obligations, duties or liabilities;
(xviii) any management service, consulting, financial advisory or any other similar type Contract and all Contracts with investment or commercial banks;
(xix) any Contract with any Related Parties;
(xx) any Contract involving any ownership, right to use, use, infringement or any claim, liability or obligation with respect to any Intellectual Property;
(xxi) any other material Contract of any of the consummation Company Entities, whether or not entered into in the Ordinary Course of Business, which shall include, without limitation, any Contract that requires payment by any Company Entity(ies) in excess of $500,000 in any twelve (12) month period that cannot be terminated on less than ninety (90) days’ notice without the payment of any termination fee, premium or penalty; and
(xxii) each amendment, supplement and modification (whether oral or written) in respect of any of the transactions contemplated by this Agreement. Each foregoing.
(b) Except as set forth in Schedule 6.11(b) of the Disclosure Schedules: (i) each Contract identified or required to be identified in Schedule 6.11(a) of the Disclosure Schedules (the “Company Material Contract (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (BContracts”) is in full force and effect and is valid and enforceable in accordance with its terms; (ii) each Company Entity is in compliance with all applicable terms and requirements of each Material Contract; (Ciii) will continue to be legal, valid, binding, enforceable, and in full force and effect 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 CompanyCompany Entities, no other party to any Company Material Contract is in default thereunder; (iv) no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with or result in a Breach of, or give any Company Entity or any other party thereto is in the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or payment under, or to cancel, terminate or modify, any Company Material Contract; and (v) no Company Entity has waived any material violation or default right under any of the Company Material ContractContracts or modified any material terms thereof. There are no renegotiations of, attempts to renegotiate or outstanding rights to renegotiate any material amounts paid or payable to any of the Company Entities under current or completed Company Material Contracts with any Person having the contractual or statutory right to demand or require such renegotiation and no such Person has made written demand for such renegotiation. No benefits under party to any Company Material Contract will be increasedhas exercised any acceleration, cancellation, termination or modification rights with respect thereto, and no vesting of party to any benefits under any Company Material Contract will be accelerated, by the occurrence of or other Person has notified any of the transactions contemplated by the Transaction Documents, nor will the value Company Entities 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 its intention 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 Material Contractsdo so.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (SeqLL, Inc.), Agreement and Plan of Reorganization (SeqLL, Inc.)
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwisea) to the Investor or its representatives true, correct and complete copies of each of the following to which Except as set forth in the Company or Disclosure Schedule corresponding to this Section 3.13(a), neither the Company nor any Company Subsidiary is a party to or bound by any of the following Contracts (eachcollectively, a the “Material ContractContracts”):
(i) 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 Contract that expressly and materially limits the ability of the foregoing, but Company or any Company Subsidiary to compete in or conduct any line of business or compete with any Person or in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course geographic area or during any period of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of businesstime;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement Contract with any labor unionunion or labor association representing any employee of the Company or any Company Subsidiary;
(iii) any contract Contract for the acquisition or agreement that is sale of any assets or securities of any Person having a “material contract” within the meaning fair market value in excess of Item 601(b)(10) of Regulation S-K$1,000,000;
(iv) any lease or agreement under which Contract relating to the incurrence of Indebtedness (other than borrowings between the Company and any of its wholly-owned Subsidiaries or between any of the Company Subsidiaries is lessee of, or holds or operates, any property Company’s wholly-owned by any other Person with annual rent payments Subsidiaries) involving amounts in excess of $500,000;
(v) any lease or agreement under 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 Company Subsidiaries is lessor ofTeam Balance Sheet in respect of earn-outs, deferred purchase price arrangements, indemnities or permits any Person to hold similar arrangements that have arisen in connection with investments in or operate, any property owned acquisitions or controlled by the Company dispositions of companies or any of the Company Subsidiariesbusinesses;
(vi) any contract or agreement limitingMaterial Contract providing for future payments that are conditioned upon, in any material respect, the ability of the Company or any of the Company Subsidiaries to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, whole or in any other material respectpart, with any Persona change of control or similar event;
(vii) any settlement, conciliation material joint venture or partnership agreement or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000Contract;
(viii) any contract or agreement that relates to Intellectual Property Rights Contract containing any material restrictions on acquisitions of the equity of the counterparty thereto;
(ix) other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost any Contract involving consideration of less than $500,000);
, (ixA) any contract Contract granting or agreement that concerns the sale obtaining any right to use or acquisition practice any rights under any material Company Intellectual Property or material intellectual property of any other Person (other than licenses for off-the-shelf-standard commercially available software), (B) any material portion of the Company’s businessinformation technology service Contract and (C) any material intellectual property outsourcing Contract;
(x) other than any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing Contracts with physicians that are not employees of profits or losses relating to the Company or any Company Subsidiary;
(xi) , any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedgeemployment, collarconsulting, option, forward purchasing, swap, derivative severance or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment any employee, independent contractor or service of any current or former directors, officers, employees or 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 agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability 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 solicit customers the leasing of any real or the manner in whichpersonal property providing for annual rentals of $250,000 or more.
(b) Except as would not have a Material Adverse Effect, or the localities in whicheach Material Contract is a valid, all or any portion of the business binding and enforceable obligation of the Company or a Company Subsidiary, as the Company Subsidiaries case may be, and, to the Knowledge of the Company, is or can be conductedin full force and effect, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability and none of the Company or any of the Company Subsidiaries to ownSubsidiary or, 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 (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect 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, any other party thereto is, or is alleged in writing to be, in violation, default or breach in any material violation or default respect under any Material Contract. No benefits under any Material Contract will be increased, and no vesting the terms 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 Documentssuch Contract. The Company and the Company Subsidiaries, and has made available to Purchaser prior to the Knowledge date hereof true and correct copies 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 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. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwisea) to the Investor or its representatives true, correct and complete copies of each As of the following date of this Agreement, except as set forth in Section 3.11(a) of the Company Disclosure Letter, neither the Company nor any of its Subsidiaries is a party to or bound by any:
(i) “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act), whether or not filed by the Company with the SEC;
(ii) employment or consulting Contract (in each case with respect to which the Company has continuing obligations as of the date hereof) with any current or former (x) executive officer of the Company, (y) member of the Company Board, or (z) Company Employee providing for an annual base salary in excess of $50,000;
(iii) Contract providing for indemnification or any guaranty by the Company or any Subsidiary thereof, in each case that is material to the Company and its Subsidiaries, taken as a party whole, other than (each, a “Material Contract”):
(ix) any contract guaranty by the Company 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 Subsidiary thereof of any of the foregoing, but in obligations of (A) the Company or another wholly owned Subsidiary thereof or (B) any event excluding trade payables, securities transactions and brokerage agreements arising Subsidiary (other than a wholly owned Subsidiary) of the Company that was entered into in the ordinary course of businessbusiness pursuant to or in connection with a customer Contract, intercompany indebtedness and immaterial leases or (y) any Contract providing for telephones, copy machines, facsimile machines and indemnification of customers or other office equipment) in excess of $500,000, except for those issued Persons pursuant to Contracts entered into in the ordinary course of business;
(iiiv) Contract that purports to limit in any contract material respect the right of the Company or agreement any of its Subsidiaries (or, at any time after the consummation of the Merger, Parent or any of its Subsidiaries) (x) to engage in any line of business, or (y) to compete with any Person or operate in any geographical location;
(v) Contract relating to the disposition or acquisition, directly or indirectly (by merger or otherwise), by the Company or any of its Subsidiaries after the date of this Agreement of assets with a fair market value in excess of $50,000;
(vi) Contract that constitutes contains any provision that requires the purchase of all of the Company’s or any of its Subsidiaries’ requirements for a given product or service from a given Third Party, which product or service is material to the Company and its Subsidiaries, taken as a whole;
(vii) Contract that obligates the Company or any of its Subsidiaries to conduct business on an exclusive or preferential basis with any Third Party or upon consummation of the Merger will obligate Parent, the Surviving Corporation or any of their respective Subsidiaries to conduct business on an exclusive or preferential basis with any Third Party;
(viii) Contracts relating to Indebtedness for borrowed money or any guarantee of any Indebtedness for borrowed money (other than in respect of Indebtedness for borrowed money of a wholly owned Subsidiary of the Company) or loans or other advances to any Person in excess of $50,000;
(ix) Contracts where the Company or any of its Subsidiaries has received or expects to receive $50,000 or more in revenues pursuant to such agreements in the current fiscal year;
(x) Contracts with respect to the receipt of any goods and services involving a payment of $50,000 or more per annum;
(xi) Employee collective bargaining agreement or other arrangement Contract with any labor union;
(iiixii) Joint venture, alliance, partnership or limited liability company agreements or similar Contracts relating to the formation, creation, operation, management or control of any contract joint venture, alliance, partnership or agreement limited liability company that (A) is a “material contract” within to the meaning Company, any of Item 601(b)(10its Subsidiaries or any of its Subsidiaries; (B) is material to any investment in, or other commitment to, any Related Entity of Regulation S-Kthe Company; or (C) would reasonably be expected to require the Company or its Subsidiaries to make expenditures in excess of $50,000 or more in the current fiscal year;
(ivxiii) Contract which is not otherwise described in clauses (i)-(xii) above that is material to the Company and its Subsidiaries, taken as a whole; or
(xiv) Contracts material to the Company’s or any lease of its Subsidiaries' Intellectual Property owned or agreement under used by the Company or any of its Subsidiaries.
(b) All Contracts to which the Company or any of the Company its Subsidiaries is lessee of, a party to or holds or operates, any property owned bound by any other Person with annual rent payments in excess of $500,000;
(v) any lease or agreement under which the Company or any as 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 date of this Agreement that are of the type described in clause (a) above are referred to herein as the “Company Subsidiaries;
(vi) any contract or agreement limitingMaterial Contracts.” Except, in any material respecteach case, the ability of the Company or any of the Company Subsidiaries as has not, and would not reasonably be expected to engage in any line of business or to competehave, whether by restricting territories, customers or otherwise, individually or in any other material respectthe aggregate, with any Person;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(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 $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
Material Adverse Effect, (xiii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of the all 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 agreement 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 (A) is legal, Contracts are valid and binding on the Company and and/or the relevant Subsidiary of the Company Subsidiaries which are that is a party thereto and, to such contractthe Company’s Knowledge, each other party thereto, subject to the Bankruptcy and Equity Exception, (Bii) is all Company Material Contracts are in full force and effect and enforceable in accordance with its terms and effect, (Ciii) will continue to be legal, valid, binding, enforceable, and in full force and effect 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, 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 its Subsidiaries has performed in all material respects all material obligations required to be performed by them under the Company Material Contracts to which they are parties, (iv) to the Company’s Knowledge, each other party to a Company Material Contract has performed all material obligations required to be performed by it under such Company Material Contract and (v) no party to any Company Material Contract has given the Company or any of its Subsidiaries written notice of its intention to cancel, terminate, change the scope of rights under or fail to renew any Company Material Contract and neither the Company nor any of its Subsidiaries, nor, to the Company’s Knowledge, any other party to any Company Material Contract, and to has repudiated in writing any material provision thereof. Since January 1, 2013, neither the Company nor any of its Subsidiaries has Knowledge of, or has received written notice of, any violation of or default under (or any condition which with the Company, no event has occurred that with notice or lapse passage of time or the giving of notice would constitute cause such a material breach violation of or default under or permit termination, modificationmodification or acceleration under) any Company Material Contract or any other Contract to which the Company or any of its Subsidiaries is a party or by which the Company, any of its Subsidiaries or accelerationany of their respective material properties or assets is bound, under except for violations or defaults that are not, individually or in the aggregate, reasonably likely to result in a Company Material ContractsAdverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Medytox Solutions, Inc.), Merger Agreement (CollabRx, Inc.)
Contracts. The (a) Section 3.14(a) of the Company Disclosure Schedule sets forth, as of the date of this Agreement, a true and complete list, and the Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwise) made available to Parent prior to the Investor or its representatives true, correct date of this Agreement true and complete copies of each of the following to which the Company (including all material amendments, modifications, extensions, renewals, schedules, exhibits or any Company Subsidiary is a party (eachancillary agreements with respect thereto), a “Material Contract”):of:
(i) any contract or agreement relating each 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, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement 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;
(ivii) any lease or agreement under each Contract to which the Company or any of the Company Subsidiaries is lessee ofa party involving expected annual revenues or expected annual expenditures in excess of $250,000 in 2024 or any year thereafter;
(iii) each Contract providing for the acquisition or disposition of assets or securities by or from any Person or any business (or any contract providing for an option, right of first refusal or offer or similar rights with respect to any of the foregoing) (A) entered into since December 31, 2018 that involved or would reasonably be expected to involve the payment of consideration in excess of $500,000 in the aggregate with respect to such Contract or series of related Contracts, or holds (B) that contains (or operateswould contain, in the case of an option, right of first refusal or offer or similar rights) ongoing representations, warranties, covenants, indemnities or other obligations (including “earn-out”, contingent value rights or other contingent payment or value obligations) that would involve the receipt or making of payments or the issuance of any property owned by equity securities of the Company or any other Person with annual rent payments of its Subsidiaries, in each case having an expected value in excess of $500,000;
(viv) any lease or agreement under each Contract to 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;
(vi) any contract or agreement limiting, a party that restricts in any material respect, respect the ability of the Company or any of the Company Subsidiaries (A) to compete or engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or with any Person in any other geographical area, (B) to sell, supply or distribute any material respectthe Company Offering, with use or enforce any Person;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viii) any contract or agreement that relates to material Intellectual Property Rights (other than a license granted to the Company for commercially available software owned by or exclusively licensed on standard terms with a total replacement cost of less than $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary, (C) to solicit any (potential or actual) customer or supplier, or (D) that otherwise has the effect of materially restricting the Company, the Company Subsidiaries or any of their respective affiliates (including Parent and its affiliates after the Effective Time) from the development, marketing or distribution of the Company Offerings, in each case, in any geographic area;
(xiv) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by each Contract to which the Company or any of the Company Subsidiaries is a party that is material and obligates the Company or any Company Subsidiary without penalty to conduct business with any third party on not more than 90 days’ noticea preferential or exclusive basis, or that contains or expressly purports to contain material exclusivity or “most favored nation” obligations, material rights of first refusal, material rights of first offer, material put or call rights or other similar provisions that are binding on the Company or any Company Subsidiary or that would be so binding on Parent or any of its Affiliates after the Effective Time;
(xiivi) any material hedge, collar, option, forward purchasing, swap, derivative or similar (A) each loan and credit agreement, understanding Contract, note, debenture, bond, indenture, mortgage, security agreement, pledge, or undertaking;
(xiii) other similar agreement pursuant to which any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants Indebtedness of the Company or any of the Company Subsidiaries (or owed to the Company or any of the Company Subsidiaries) in excess of $250,000 is outstanding or may be incurred, other thanthan any such agreement between or among the Company and one or more wholly owned the Company Subsidiaries and (B) each Contract governing or amending, with respect modifying, supplementing or otherwise relating to the Company Indenture (including any hedging obligations entered into in connection therewith);
(vii) each partnership, joint venture or similar Contract to which the Company or any of the Company Subsidiaries is a party relating to the formation, creation, operation, management or control of any partnership or joint venture or to the ownership of any equity interest in any entity or business enterprise other than the wholly owned the Company Subsidiaries;
(viii) each Contract to which the Company or any of the Company Subsidiaries is a party that contains covenants, indemnities or other continuing obligations (including “earnout” or other contingent payment obligations) that would reasonably be expected to result in the making by the Company or any Company Subsidiary of future payments in excess of $250,000;
(ix) each Contract pursuant to which the Company or the Company Subsidiaries receives from any third party a license or similar right to any Intellectual Property Right material to the Company and the Company Subsidiaries taken as a whole, and that are not (A) non-executive exclusive licenses granted in the ordinary course of business; (B) Contracts under which open source technology is licensed; or (C) Contracts with current or former employees and consultants, service providers that were entered into in the ordinary course of business;
(xivx) each Contract with a Governmental Entity to which the Company or any Company Subsidiary is a party, and pursuant to which the Company or any Company Subsidiary has any material future obligation other than the provision of the Company Offerings in the ordinary course of business consistent with past practice;
(xi) any contract Contract restricting the payment of dividends or agreement containing the making of distributions in respect of any equity securities of the Company or any Company Subsidiaries or the repurchase or redemption of any equity securities of the Company or any Company Subsidiaries; and
(xxii) non-competition or exclusive dealing obligations or other obligation which purports each Contract that gives any Person the right to limit or restrict in acquire any respect the ability material assets of the Company or any Company Subsidiary (excluding ordinary course commitments to solicit customers purchase the Company products) after the date hereof. Each agreement, understanding or undertaking of the manner type described in this Section 3.14(a) is referred to herein as a “Company Material Contract”.
(b) Except for matters which, individually or in the localities in whichaggregate, all or have not had and would not reasonably be expected to have a Company Material Adverse Effect, (i) each Company Material Contract (including, for purposes of this Section 3.14(b), any portion Contract entered into after the date of this Agreement that would have been a Company Material Contract if such Contract existed on the business date of this Agreement) is a valid, binding and legally enforceable obligation of the Company or one of the Company Subsidiaries is or can 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 conductedlimited by bankruptcy, or (y) right of first refusal or right of first offer insolvency, reorganization or similar right or that limits or purports to limit the ability Laws affecting creditors’ rights generally and by general principles of equity; (ii) each such Company Material Contract is in full force and effect; (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 Company Material Contract and, 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 the Knowledge of the consummation Company, no other party to any such Company Material Contract is (with or without notice or lapse of time, or both) in breach or default thereunder; (iv) to the Knowledge of the transactions contemplated by this Agreement. Each Company, each other party to a Company Material Contract has performed all material obligations required to be performed by it under such Company Material Contract; and (Av) is legal, valid and binding on no party to a Company Material Contract has given the Company and or any of the Company Subsidiaries which are a party notice (whether written or oral) of its intention to such contractcancel, (B) is in full force terminate, change the scope of rights under or fail to renew any Company Material Contract and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction Documents. Neither neither the Company nor any of the Company Subsidiaries, nor nor, to the Knowledge of the Company, any other party thereto is in material violation or default under to any Company Material Contract, has repudiated (whether orally or in writing) any material provision thereof. No benefits under any Company Material Contract will can be increased, and no vesting reasonably expected to prevent or materially delay the consummation of any benefits under any Material Contract will be accelerated, by the occurrence of Merger or any of the other 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 Material Contractsthis Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Nano Dimension Ltd.), Merger Agreement (Desktop Metal, Inc.)
Contracts. The Company has Previously Disclosed or provided (by hard copy, 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 or any Company Subsidiary is a party (each, a “Material Contract”):
(i) 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, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000250,000, except for those issued in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) 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 Person with annual rent payments in excess of $500,000250,000;
(v) 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;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to 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;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000250,000;
(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 $500,000250,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 250,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not or without more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or 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 agreement 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 (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect 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, 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 Material Contracts.
Appears in 2 contracts
Sources: Investment Agreement (FNB United Corp.), Investment Agreement (FNB United Corp.)
Contracts. The (a) For purposes of this Agreement, a “Company has Previously Disclosed Material Contract” is any Company Agreement, whether or provided not set forth in Section 3.13 of the Company Disclosure Schedule, which, as of the date hereof, (by hard copy, electronic data room 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 otherwiseexpenditures 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 Investor Company or its representatives trueany Company Subsidiary, correct and complete copies or which restricts the conduct of each any line of business by the following to 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; (eachvi) 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, a “Material Contract”):
(i) any contract Company Subsidiary 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 any Hospice has received 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, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) 2009 in excess of $500,000, except for those issued in the ordinary course of business;
; (iiviii) any contract or agreement that constitutes a collective bargaining or other arrangement is with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under supplier to which the Company, any Company Subsidiary or any Hospice has made payments in 2009 in excess of $1,000,000; (ix) which would prohibit or materially delay the consummation of the Merger or any of the Company Subsidiaries other Transactions; (x) is lessee of, with any current or holds former Key Personnel; (xi) is with any labor union or operates, association representing any property owned by any other Person with annual rent payments in excess of $500,000;
(v) 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;
(vi) any contract or agreement limiting, in any material respect, the ability employee of the Company or any of the Company Subsidiaries to engage in and any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
collective bargaining agreement (vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
there are none), (viiixii) any contract or agreement that relates to Intellectual Property Rights (other than is a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses joint-venture agreement; (xiii) relating to the Company borrowing of money (including any guarantee thereto) or any Company Subsidiary;
(xi) any contract that is a mortgage, security agreement, capital lease or agreement involving annual payments similar agreements, in each case in excess of $500,000 or that cannot be cancelled by creates a Lien on any material asset of the Company or any of the Company Subsidiaries; (xiv) for the license or sublicense (whether as a Company Subsidiary without penalty on 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 than 90 days’ notice;
per year; (xiixv) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect relating to the employment or service sale of any current of the material assets or former directors, officers, employees or consultants properties of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, than in the ordinary course of business;
business or for the grant to any Person of any options, rights of first refusal, or preferential or similar rights to purchase any of such assets or properties; (xivxvi) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports relating to limit or restrict in any respect the ability of acquisition by the Company or any of the Company Subsidiary to solicit customers Subsidiaries of any operating business or the manner capital stock of any other Person; (xvii) requiring the payment to any Person of a material commission or fee, except in whichthe ordinary course of business consistent with past practice; (xviii) that, in the case of a Company Benefit Plan, any of the benefits of which would be increased, or the localities in which, all or any portion vesting of the business benefits of which would be accelerated, by the occurrence of any of the Company Transactions, or the Company Subsidiaries is or can value of any benefits which would be conducted, calculated on the basis of any of the Transactions; or (yxix) right that is an insurance policy providing for indemnification of first refusal any officer or right of first offer or similar right or that limits or purports to limit the ability director of the Company or any of the Company Subsidiaries to ownSubsidiaries, operateother than the Company Governing Documents; provided, sellhowever, transfer, pledge or otherwise dispose that the foregoing definition 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 Company Material Contract (A) is legalshall not include any leases, valid subleases and binding on other occupancy or use agreements concerning the real property leased by the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor or any of the Company Subsidiaries, nor to including the Knowledge Material Company Leases (collectively, the “Company Leases”).
(b) As of the Companydate hereof, there is no Company Agreement (other than the Company Leases), any other of the benefits to any party thereto is in material violation or 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 aggregate, a Company Material ContractsAdverse 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 payor that it intends to terminate, limit or reduce its business relations with the Company, any Company Subsidiary or any Hospice in the event of a 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. The Company has Previously Disclosed or provided (by hard copya) Except (i) for this Agreement, electronic data room or otherwise(ii) for the Contracts filed as exhibits to the Investor SEC Reports prior to the date hereof, (iii) for the Company Plans and Company Stock Plans or its representatives true, correct and complete copies of each (iv) as set forth in Section 3.8 of the following to which Company Disclosure Schedule, as of the date hereof, neither the Company nor any of its subsidiaries is party to or bound by any Company Subsidiary is a party (each, a “Material Contract”):Contract that:
(i) 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, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under which contains covenants binding upon the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000;
(v) 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;
(vi) any contract or agreement limiting, in any material respect, its Affiliates that materially restrict the ability of the Company or any of the Company Subsidiaries its Affiliates to engage compete in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other geographic area that, in each case, are material respectto the Company and its subsidiaries taken as a whole as of the date of this Agreement, with any Personexcept for leases;
(viiii) any settlementis a material partnership, conciliation joint venture or similar agreementContract that, in each case, is material to the performance Company and its subsidiaries taken as a whole as of which will involve payment after the Closing Date date of consideration in excess of $500,000this Agreement;
(viiiiii) 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 $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of under which the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, its subsidiaries is liable for indebtedness in the ordinary course excess of business$50,000,000;
(xiviv) any contract or agreement 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 expressly limits or purports to limit 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 Subsidiaries 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 ownclause (iii) above, operate, sell, transfer, pledge purchase orders for the purchase of inventory and/or equipment in the ordinary course of business and leases);
(vi) relates to the acquisition or otherwise dispose disposition of any material business (whether by merger, sale of stock, sale of assets or businessotherwise) for consideration in excess of $50,000,000; and
(xvvii) any material contract 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 agreement that would require any consent purchase orders for the purchase of inventory and/or equipment in the ordinary course of business). Each Contract (i) set forth (or approval required to be set forth) in Section 3.8 of a counterparty the Company Disclosure Schedule, (ii) filed as an exhibit to the SEC Reports as a result "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 consummation of the transactions contemplated by this Agreement. Each Company Material Contract (A) Contracts is a legal, valid and binding on obligation of, and enforceable against, the Company and or the Company Subsidiaries which are subsidiary that is a party thereto and, to such contractthe knowledge of the Company, (B) each other party thereto, and is in full force and effect in accordance with its terms, subject to the Bankruptcy and enforceable Equity Exception, except (i) to the extent that any Material Contract expires or terminates in accordance with its terms in the ordinary course of business consistent with past practice, and (Cii) will continue for such failures to be legal, valid, binding, enforceable, valid and binding or to be in full force and effect that do not have and would not reasonably be expected to have, individually or in all material respects following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiariesaggregate, nor to the Knowledge of a Material Adverse Effect on the Company, any other .
(c) The Company or its subsidiary that is a party thereto to a Company Material Contract is in material violation or default under any Material Contract. No benefits under any Material Contract will be increased, compliance with all terms and no vesting requirements 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 each 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 no event has occurred that, with notice or the passage of time, or both, would constitute a breach or default by the Company or any of its subsidiaries under any such Company Material Contract, 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 Material ContractsCompany.
Appears in 2 contracts
Sources: Agreement and Plan of Merger, Merger Agreement
Contracts. The (a) Section 3.13(a) of the Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwise) to the Investor or its representatives true, correct and complete copies Disclosure Letter sets forth a list of each of the following Contract, including all amendments, supplements, exhibits and side letters to any such Contract, to which the Company or any Company Subsidiary is a party (eachor by which any of its properties or assets are bound which, a “Material Contract”):as of the date of this Agreement:
(i) any contract 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 agreement relating (10) of Regulation S-K promulgated under the Securities Act or required to indebtedness for borrowed moneybe disclosed under Item 404 of Regulation S-K under the Securities Act (provided, letters that the Company shall only be required to list in clause (i) of creditSection 3.13(a) those Contracts that have not been filed with the SEC on or after January 1, 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, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business2015);
(ii) any contract or agreement that constitutes a collective bargaining involves aggregate payments by, or other arrangement with any labor union;
(iii) any contract consideration or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under which expenditures from, the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person with annual rent payments Subsidiary in excess of $500,000;
500,000 over the remaining term of such Contract, and is not cancelable within sixty (v60) any lease days without material payment by 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;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to 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;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(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 $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating penalty to the Company or any Company Subsidiary;
(xiiii) contains any contract non-compete or agreement involving annual payments in excess exclusivity provisions with respect to any line of $500,000 that cannot be cancelled by the Company business or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement geographic area with respect to the employment Company or service any Company Subsidiary, or upon consummation of the Transactions, Parent or its Subsidiaries, or which restricts in any material respect the conduct of any current or former directors, officers, employees or consultants line of business of the Company or any Company Subsidiary, or upon consummation of the Company Subsidiaries 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, in each case having a principal amount of Indebtedness in excess of $1,000,000 other than, with respect to non-executive employees than accounts receivables and consultants, payables incurred or arising in the ordinary course of businessbusiness consistent with past practice;
(xivvi) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability of requires the Company or any Company Subsidiary to solicit customers dispose of or acquire assets or properties with a fair market value in excess of $1,000,000, or involves any pending or contemplated merger, consolidation or similar business combination;
(vii) is a Company Investment Contract;
(viii) 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 manner in whichcreation of a Lien or other encumbrance, or result in any violation of or breach of or constitute a default under such Contract in connection with the localities in which, all or any portion consummation of the business of Mergers and the Company other Transactions;
(ix) is with a Governmental Entity;
(x) relates to a Related Party Transaction; or
(xi) contains any obligation, contingent or otherwise, on 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 part of the Company or any of its Subsidiaries to indemnify any other Person.
(b) Each Contract of the type described above in Section 3.13(a), whether or not set forth in Section 3.13(a) of the Company Subsidiaries Disclosure Letter, is referred 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 herein as a result of “Company Material Contract.” Except as, individually or in the consummation of the transactions contemplated by this Agreement. Each aggregate, would not have or reasonably be expected to have a Company Material Adverse Effect, each Company Material Contract (A) is legal, valid and valid, binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms on the Company and (C) will continue each Company Subsidiary that is a party thereto and, to be legalthe knowledge of the Company, valid, binding, enforceableeach other party thereto, and is in full force and effect 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 all material respects following obligations required to be performed by it under each Company Material Contract and, to the consummation knowledge of the transactions contemplated Company, each other party thereto has performed all obligations required to be performed by the Transaction Documentsit under such Company Material Contract. Neither the Company nor any None of the Company Subsidiariesor any Company Subsidiary, nor nor, to the Knowledge knowledge of the Company, any other party thereto thereto, is in material breach or violation of, or default under 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 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 execution of this Agreement, true and complete copies of all 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. The Company has Previously Disclosed or provided (by hard copya) As of the date of this Agreement, electronic data room or otherwise) to the Investor or its representatives true, correct and complete copies of each of the Company’s “material contracts” (as defined in Item 601(b)(10) of Regulation S-K promulgated by the SEC) (each, a “Filed Company Contract”) has been filed with the SEC.
(b) Section 4.14(b) of the Company 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 (each, a “Material Contract”):as of the date of this Agreement:
(i) each Contract that restricts in any contract material respect the ability of the Company or agreement relating 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 excluding trade payablesentity 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), securities transactions and brokerage agreements arising in 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, intercompany indebtedness and immaterial leases for telephonesin each case, copy machines, facsimile machines and other office equipment) in excess with material obligations remaining to be performed after the date of $500,000, except for those issued in the ordinary course of businessthis Agreement;
(iivi) other than Contracts for ordinary repair and maintenance, each Contract providing for the development or construction of, or additions or expansions to, any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement real property, under which the Company or any of the Company Subsidiaries is lessee ofhas, or holds or operatesexpects to incur, any property owned by any other Person with annual rent payments an obligation in excess of $500,0003,000,000 in the aggregate;
(vvii) 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 lease Contract that grants any right of first refusal, right of first offer or agreement under 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 insurance providers and providers of legal services) that represented at least $600,000 in total spend by the Company and the Company Subsidiaries, on a consolidated basis, during the twelve (12)-month period ended April 30, 2019, other than purchase orders, sales orders and 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 lessor of(with or without notice or lapse of time, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(viboth) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to 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;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(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 $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or 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 agreement 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 (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect 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, any other party thereto is in material violation breach or default under any Material Contract. No benefits under any such 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 event has occurred that other party to any such Material Contract is (with or without notice or lapse of time would constitute a material time, or both) in breach or default thereunder, except, in the case of clauses (i) or permit termination(ii), modificationwith 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. Except as would not be material to the Company and the Company Subsidiaries, taken as whole, the Company has not received, as of the date of this Agreement, any notice in writing from any Person that such Person intends to terminate, or accelerationnot renew, under the any Material ContractsContract.
Appears in 2 contracts
Sources: Merger Agreement (Vail Resorts Inc), Merger Agreement (Peak Resorts Inc)
Contracts. (a) The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwise) made available to the Investor or its representatives Parent true, correct and complete copies copies, as of each the date of this Agreement, of the following Contracts to which the Company or any Company Subsidiary of its Subsidiaries is a party (each, a “Material Contract”):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 or any contract of its Subsidiaries is a party to or agreement relating bound;
(ii) each Contract not contemplated by this Agreement that limits the ability of the Company or any of its Subsidiaries or Affiliates to indebtedness 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 borrowed moneyIndebtedness individually in excess of $10,000,000;
(vi) each Contract entered into since January 1, letters of credit2024 that relates to the acquisition or disposition, capital lease obligationsdirectly or indirectly, 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 businessbusiness or 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 $500,000, 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;
(iixii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any 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 Person with annual rent payments in excess of the aggregate, more than $500,0002,500,000 during the twelve (12) months immediately after the date hereof;
(vxiii) any 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
(vixiv) any contract each Contract involving a standstill or agreement limiting, in any material respect, the ability 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 line of business or to compete, whether by restricting territories, customers or otherwise, or in any other be material respect, with any Person;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(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 and its Subsidiaries, taken as a total replacement cost of less than $500,000);
whole, (ixi) any contract or agreement that concerns the sale or acquisition of any material portion each of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or 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 agreement 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 Material Contracts 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 (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, enforceable and in full force and effect in all material respects 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 Knowledge of the Company, 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 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 any Material ContractsContract.
Appears in 2 contracts
Sources: Merger Agreement (CMB.TECH Nv), Merger Agreement (Golden Ocean Group LTD)
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwisea) SCHEDULE 3.08(A) to the Investor Company Disclosure Schedule and the Company SEC Documents contain a complete and accurate list, and the Company has delivered or its representatives true, correct made available to Veeco true and complete copies (or, in the case of oral Contracts, summaries), of:
(i) each Contract that is executory in whole or in part and involves performance of the following to which services or delivery of goods or materials by the Company or any Company Subsidiary is a party (each, a “Material Contract”):other Acquired Corporation of an amount or value in excess of $250,000;
(iii) any contract each Contract that is executory in whole 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 part and brokerage agreements arising was not entered into in the ordinary course of business, intercompany indebtedness business 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 $500,000250,000;
(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;
(ii) , each material licensing agreement or any contract or agreement that constitutes a collective bargaining other material Contract with respect to patents, trademarks, copyrights or other arrangement Intellectual Property, including material Contracts with any labor union;
(iii) any contract current or agreement that is a “material contract” within former employees, consultants or contractors regarding the meaning appropriation or the non-disclosure of Item 601(b)(10) of Regulation S-K;
(iv) 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 Person with annual rent payments in excess of $500,000Intellectual Property;
(v) each collective bargaining agreement and any lease other Contract to or agreement under which the Company with any labor union or other employee representative of a group of employees of 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 SubsidiariesAcquired Corporation;
(vi) each joint venture, partnership and any contract other material Contract (however named) involving a sharing of profits, losses, costs or agreement limiting, liabilities by an Acquired Corporation with any other Person;
(vii) each Contract containing covenants that in any material respect, way purport to restrict the ability business activity of an Acquired Corporation or limit the Company or any freedom of the Company Subsidiaries 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;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viii) each Contract providing for material payments to or by any contract Person based on sales, purchases or agreement that relates to Intellectual Property Rights (profits, other than a license granted to the Company direct payments for commercially available software licensed on standard terms with a total replacement cost of less than $500,000)goods;
(ix) any contract or agreement each power of attorney that concerns the sale or acquisition of any material portion of the Company’s businessis currently effective and outstanding granted by and relating to an Acquired Corporation;
(x) any alliance, cooperation, joint venture, shareholders, partnership each Contract that contains or similar agreement involving a sharing of profits or losses relating provides for an express undertaking by an Acquired Corporation to the Company or any Company Subsidiarybe responsible for consequential damages;
(xi) any contract each Contract that is executory in whole or agreement involving annual payments in part and involves capital expenditures by an Acquired Corporation in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice250,000;
(xii) any material hedgeeach written warranty, collar, option, forward purchasing, swap, derivative or guaranty and/or other similar agreement, understanding or undertaking;
(xiii) any contract or agreement undertaking with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries contractual performance extended by an Acquired Corporation other than, with respect to non-executive employees and consultants, than in the ordinary course of business;
(xiv) any contract or agreement 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
(xvxiii) each Contract with any material contract employee, director or agreement that would require any consent or approval officer of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect 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, 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 Material Contractsan Acquired Corporation.
Appears in 2 contracts
Sources: Merger Agreement (Veeco Instruments Inc), Merger Agreement (Veeco Instruments Inc)
Contracts. The Company has Previously Disclosed or provided (by hard copya) For purposes of this Agreement, electronic data room or otherwise) to the Investor or its representatives true, correct and complete copies of 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 an exhibit to the Company 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 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 Person on a non-exclusive basis);
(vi) any Contract (A) relating to a transaction involving the disposition or acquisition of (1) assets whose value, in each case, is in excess of $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, in each case other than in the ordinary course of business; or (B) pursuant to which the Company or any Company Subsidiary is a party (each, a “Material Contract”):will acquire any material ownership interest in any other Person or other business enterprise other than any Company Subsidiary;
(ivii) any contract mortgages, indentures, guarantees, loans or agreement credit agreements, security agreements or other Contracts relating to indebtedness for borrowed money, letters the borrowing of money or extension of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements in each case in excess of $5,000,000 other than (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions A) accounts receivables and brokerage agreements arising payables in the ordinary course of business, intercompany indebtedness ; (B) loans to any Company Subsidiary in the ordinary course of business; and immaterial leases for telephones, copy machines, facsimile machines and other office equipment(C) in excess extensions of $500,000, except for those issued credit to customers in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) 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 Person with annual rent payments in excess of $500,000;
(v) 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;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to 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;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viii) any contract Contract providing for the payment, increase or agreement that relates to Intellectual Property Rights (other than a license granted to vesting of any benefits or compensation in connection with the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000)Merger;
(ix) any contract or Contract that is a settlement agreement that concerns imposes material obligations on the sale Company or acquisition any Company Subsidiary after the date of any material portion of the Company’s businessthis Agreement;
(x) any alliance, cooperation, Contract that involves a material joint venture, shareholders, limited liability company or partnership or similar agreement involving a sharing of profits or losses relating to the Company or with any Company Subsidiarythird Person;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or 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 agreement Contract containing any (x) non-competition or exclusive dealing obligations covenant or other obligation which purports to limit or restrict in any respect provision (A) limiting the ability right of the Company or any Company Subsidiary to solicit customers engage in any material line of business or to compete with any Person in any line of business that is material to 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 Company; (yB) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of prohibiting the Company or any of Company Subsidiary from engaging in any business with any Person or levying a fine, charge or other payment for doing so; or (C) containing “most favored nation,” “exclusivity” or similar provisions, in each case other than any such Contracts that (1) may be cancelled without material liability to the Company or its Subsidiaries upon notice of ninety (90) days or less; or (2) are not material to ownthe Company and its Subsidiaries, operate, sell, transfer, pledge or otherwise dispose of any material assets or businesstaken as a whole; and
(xvxii) any material contract or agreement that would require Company Contract which provides for indemnification of any consent or approval of a counterparty as a result Company Employee.
(b) Part 3.10(a) of the consummation Disclosure Schedule lists all Material Contracts as of the transactions contemplated by this AgreementAgreement Date. Each Material Contract (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) 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 (Cii) will continue to be legalrules of Law governing specific performance, validinjunctive relief and other equitable remedies.
(c) To the Company’s Knowledge, binding, enforceable, and in full force and effect in all material respects following the consummation as of the transactions contemplated by the Transaction Documents. Neither Agreement Date, neither the Company nor any of the Company SubsidiariesSubsidiary party to, nor to the Knowledge of the Company, any other party thereto to, any Material Contract, is in material violation breach of, or material default under 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 Material Contracts.
Appears in 2 contracts
Sources: Merger Agreement (Procera Networks, Inc.), Merger Agreement (Procera Networks, Inc.)
Contracts. The (a) Section 3.10 of the Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwise) to the Investor or its representatives true, correct and complete copies of Disclosure Letter lists each of the following Contracts which the Company or any Subsidiary, as of the date of this Agreement, is a party to or bound by:
(i) any Contract (other than any Contract solely between the Company and any of its Subsidiaries) relating to outstanding indebtedness for borrowed money pursuant to which the Company or any Subsidiary has an outstanding principal amount in excess of $250,000;
(ii) any Contract relating to a security interest imposed on any Vessel or other asset or property of the Company or any of its Subsidiaries, other than Permitted Liens;
(iii) with respect to any joint venture, partnership or other similar agreement or arrangement with a third party, any Contract that relates to the formation, creation, operation, management or control of such joint venture, partnership or similar agreement or arrangement;
(iv) any Contract that involves or would reasonably be expected to involve aggregate payments by or to the Company or any Subsidiary is a party in excess of $250,000 in any twelve-month period;
(eachv) any Contract that (A) would limit the freedom of the Company or any Subsidiary to compete in any line of business or with any person or in any area after the Closing, (B) contains exclusivity obligations or restrictions that would be binding on the Company or any Subsidiary after the Closing or (C) provides for a “Material Contract”):most favored nations” pricing status for any party thereto;
(ivi) any contract or agreement Contract relating to indebtedness any material interest rate, derivatives or hedging transaction;
(vii) any Contract with any supplier of or for borrowed moneythe furnishing of services to the Company or any of its Subsidiaries involving consideration of more than $250,000 over its remaining term (including any automatic extensions thereto);
(viii) any ship management agreement, letters contract of creditaffreightment, capital financial lease (including any sale/leaseback agreement or similar arrangement) or charter (time, bareboat or otherwise) with respect to any Vessel, and Section 3.10(a)(viii) of the Company Disclosure Letter sets forth the classification of each such charter as time, bareboat or other;
(ix) any Contract (including any Contract including an option) for or relating to the purchase or sale of any Vessel or other vessel (other than any such Contract under which the Company and the Subsidiaries have no continuing obligations, liabilities, rights or options);
(x) any Contract under which the Company or any Subsidiary has directly or indirectly guaranteed liabilities or obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect 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, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business);
(iixi) any contract Contract that prohibits the payment of dividends or agreement that constitutes a collective bargaining distributions in respect of the share capital of the Company or other arrangement with any labor unionSubsidiary, prohibits the pledging of the share capital of the Company or any Subsidiary or prohibits the issuance of any guarantee by the Company or any Subsidiary;
(iiixii) any contract effective power of attorney granted by the Company or agreement that is any of its Subsidiaries other than those granted to any existing director of the Company or any existing director of a “material contract” within the meaning of Item 601(b)(10) of Regulation S-KSubsidiary;
(ivxiii) any lease or agreement under which the Company or any of the Company Subsidiaries is lessee of, Subsidiary provided loans or holds or operates, any property owned by advanced money to any other Person with annual rent payments in excess of $500,000;person (other than intercompany indebtedness or arrangements); and
(vxiv) any lease or agreement under which Contract between the Company or any of Subsidiary, on the Company Subsidiaries is lessor ofone hand, and any current or permits any Person to hold former director, officer, employee, independent contractor or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, the ability consultant of the Company or any Subsidiary, on the other hand, including any Contract that contains restrictive covenants prohibiting such person from taking certain actions, including non-competition, non-solicitation, no-hire, non-disparagement or non-disclosure restrictions but not including any Company Benefit Plan, in each case under which there continues to be any obligation by any party to the other as of the Company Subsidiaries to engage in any line date of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(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 $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or 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 agreement 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 (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect 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, 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 Material Contracts.
Appears in 2 contracts
Sources: Share Purchase Agreement (DHT Holdings, Inc.), Share Purchase Agreement (DHT Holdings, Inc.)
Contracts. The (a) Except as disclosed in SCHEDULE 4.20, neither the Company has Previously Disclosed nor its Subsidiaries is a party or provided (by hard copy, electronic data room or otherwise) subject to the Investor or its representatives true, correct and complete copies of each any of the following to which the Company written or any Company Subsidiary is a party (each, a “Material Contract”):
oral contracts and agreements: (i) any contract union or agreement collective bargaining agreements and any employment contracts; (ii) any contracts with agents, consultants, advisors, salespersons, sales representatives, distributors or dealers; (iii) any contracts or commitments for capital expenditures or the acquisition of fixed assets providing for payments of $10,000 in the aggregate; (iv) 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 or currency hedging agreements fixtures; (including guarantees in respect of vi) any contracts limiting the freedom of the foregoing, but Company or its Subsidiaries to engage in or to compete in any event excluding trade payablesline 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, securities transactions and brokerage agreements arising either as licensor or licensee or as franchisee or franchisor; (viii) any contracts or commitments not made in the ordinary course of business, intercompany indebtedness and immaterial leases ; (ix) any joint venture or partnership contracts; (x) any contracts or agreements for telephones, copy machines, facsimile machines and other office equipment) in excess the purchase of $500,000, except for those issued any materials or supplies or services in the ordinary course of business;
business and involving more than $10,000 in consideration in each such case; (iixi) any contract contracts or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any 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 liability of any person or entity; and (xii) any other Person with annual rent payments in excess of $500,000;
(v) 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;
(vi) any contract or agreement limiting, in any commitment which is material respect, the ability of the Company or any of the Company Subsidiaries to 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;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(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 $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract its Subsidiaries or agreement involving annual payments in excess of $500,000 that cannot that, if terminated, could reasonably be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect expected to the employment or service of any current or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries other thanhave, with respect to non-executive employees the passage of time or otherwise, a Material Adverse Effect. The contracts and consultants, in the ordinary course of business;
(xiv) any contract or agreement 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 (A) is legal, valid and binding on the Company and the Company Subsidiaries agreements which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect 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, 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 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 Material Contracts"CONTRACTS."
Appears in 2 contracts
Sources: Stock Purchase Agreement (Active Iq Technologies Inc), Stock Purchase Agreement (Meteor Industries Inc)
Contracts. The (a) Neither the Company has Previously Disclosed nor any of its Subsidiaries is a party to or provided (is bound by hard copy, electronic data room or otherwise) to the Investor or its representatives true, correct and complete copies of each any of the following to which Contracts that remain in effect as of the Company or any Company Subsidiary is a party (each, a “Material Contract”):date hereof:
(i) any contract employment or agreement relating to indebtedness for borrowed moneyconsulting 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 delivered in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment(B) in excess those that are terminable by the Company or any of $500,000, except for those issued in its Subsidiaries on no more than thirty (30) days’ notice without liability or financial obligation to the ordinary course of businessCompany;
(ii) any contract Contract (including any stock option Contract) or agreement that constitutes a collective bargaining plan (including, without limitation, any stock option plan, stock appreciation right plan or other arrangement with any labor union;
(iiistock purchase plan) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) 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 Person with annual rent payments in excess of $500,000;
(v) 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;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to 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;
(vii) any settlement, conciliation or similar agreement, the performance benefits of which will involve payment after the Closing Date of consideration in excess of $500,000;
(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 $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or 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 agreement 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 (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect 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, 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 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 Material Contracts2002.
Appears in 2 contracts
Sources: Merger Agreement (Synopsys Inc), Merger Agreement (Insilicon Corp)
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwisei) to the Investor or its representatives true, correct and complete copies of each Section 3.01(j) of the following Company 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 (eachor by or to which any of their properties are bound or subject that is material to the business of the Company and its subsidiaries, taken as a “Material Contract”):whole, including any such contract, commitment, agreement, lease, instrument, arrangement, understanding, obligation or undertaking:
(iA) any contract pursuant to which the Company 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 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, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course line of business;
(iiB) pursuant to which the Company or any contract or agreement that constitutes a collective bargaining or other arrangement with any labor unionof its subsidiaries has entered into an exclusive distributorship arrangement;
(iiiC) with (1) any contract beneficial owner of more than one percent of the outstanding Company Common Stock or agreement that is a “material contract” within more than one percent of the meaning capital stock of Item 601(b)(10any of the Company's subsidiaries, (2) any affiliate of Regulation S-Kthe Company or any of its subsidiaries or (3) any current or former director, officer, employee or consultant of the Company or any of its subsidiaries or of any affiliate of the Company or any of its subsidiaries (other than pursuant to Benefit Agreements or Benefit Plans);
(ivD) any lease or agreement that grants exclusive license rights to material Intellectual Property of the Company;
(E) under which the Company or any of the Company Subsidiaries its subsidiaries has (1) incurred any indebtedness for borrowed money that is lessee ofcurrently owing or (2) given any guarantee in respect of indebtedness for repayment of borrowed money, or holds or operates, any property owned by any other Person with annual rent payments in each case having an aggregate principal amount in excess of $500,000100,000;
(vF) that contains any lease guarantees as to the Company's or agreement under any of its subsidiaries future revenues or operating income;
(G) that is otherwise material and that requires any consent (including any consent to assignment) of or notice to a third party, or any approval, authorization, qualification or order of any Governmental Entity, in connection with this Agreement or the consummation of the transactions contemplated 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 ordinary course of business granting a third party any license to any material Intellectual Property rights of the Company or any of its subsidiaries, other than "shrink-wrap" licenses or licenses granted in connection with the sale 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 or a third party "most favored nation" status that, following consummation of the Merger, would in any way apply to Parent or any of its subsidiaries (other than the Company and its subsidiaries and their products);
(L) pursuant to which the Company or any of the Company Subsidiaries is lessor of, its subsidiaries receives or permits has a continuing obligation to purchase any Person to hold information technology services or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any information technology products that are material respect, the ability of the Company or any of the Company Subsidiaries to 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;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(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 $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or 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 agreement 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 conduct of the business of the Company or the Company Subsidiaries is or can be conductedand its subsidiaries, 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 taken as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect 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, 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 Material Contractswhole.
Appears in 2 contracts
Sources: Merger Agreement (Dupont E I De Nemours & Co), Merger Agreement (Chemfirst Inc)
Contracts. The (a) For purposes of this Agreement, the term "Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwise) to the Investor or its representatives true, correct and complete copies of each Material Contract" means any of the following Contracts to which the Company or any Company Subsidiary of its Subsidiaries is a party (each, a “Material Contract”):
or otherwise bound: (i) any contract Contract pursuant to which the Company and its Subsidiaries reasonably expect to spend or agreement relating to indebtedness for borrowed moneymay receive, 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 businessaggregate, intercompany indebtedness and immaterial leases for telephonesmore than $1,000,000 during the fiscal year ended December 31, copy machines2006, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business;
(ii) any contract Contract containing any covenant (A) limiting the right of the Company or agreement that constitutes a collective bargaining any of its Subsidiaries to engage in any line of business, to make use of any material Intellectual Property or other arrangement to compete with any labor union;
Person in any line of business, (B) granting to any customer or partner of the Company exclusive rights to use services, software or application of the Company, or (C) otherwise having a material adverse effect on the right of the Company or its Subsidiaries to sell or distribute any products or services or to purchase or otherwise obtain any software, (iii) any contract or agreement that is a “"material contract” within the meaning of " (as such term is defined in Item 601(b)(10) of Regulation S-K;
) with respect to the Company and its Subsidiaries, (iv) any lease employment, consulting or agreement under indemnification Contract (other than a standard stock option, assignment of inventions or confidentiality agreement) with any executive officer or other employee of the Company, a Subsidiary of the Company or any member of the Company Board earning an annual salary in excess of $150,000, other than those that are terminable by the Company or any of its Subsidiaries on no more than 30 days' notice without material liability or financial obligation to the Company or any of its Subsidiaries, (v) any Contract relating to indebtedness or other commitment relating to the incurrence of indebtedness of the Company or an of its Subsidiaries, with respect to an amount in excess of $250,000, (vi) any Contract 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 the Company its Subsidiaries is lessee of, or holds or operates, has any property owned by material ownership interests in any other Person with annual rent payments in excess of $500,000;
other than the Company's Subsidiaries, (vvii) any lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person Contract relating to hold or operate, any property owned or controlled capital expenditures by the Company or any Subsidiary and involving future payments which, together with future payments under all other Contracts or commitments relating to the same capital project, exceed $1,000,000, (viii) any Contract providing for the administration by any Person of any part of the Company Subsidiaries;
(vi) any contract leases, loans, installment financing contracts, installment sales contracts, conditional sales agreements or agreement limiting, in any material respect, the ability financial instruments of a similar type of the Company or any of the Company Subsidiaries to engage in any line of business or to competeits Subsidiaries, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(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 $500,000);
(ix) any contract or agreement that concerns Contract limiting the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants right of the Company or any Subsidiary to pay dividends or distributions to its shareholders, (x) any Contract in which the Company or any Subsidiary participates as a general partner or joint venture, (xi) any Contract between or among the Company, on the one hand, and any of its Affiliates (other than the Company or a Subsidiary), on the other hand, (xii) any Contract providing for indemnification or any guaranty that is material to the Company and its Subsidiaries, taken as a whole (in each case, under which the Company has continuing obligations as of the date hereof), other than any guaranty by the Company Subsidiaries other thanof any of its Subsidiaries' obligations or any Contract providing for indemnification entered into in connection with the distribution, with respect to non-executive employees and consultants, sale or license of services or hardware or software products in the ordinary course Ordinary Course of business;
Business, or otherwise in accordance with the Company's standard forms of software license agreement as provided or made available to Buyer, (xiii) any Contract to provide source code to any third party for any products that are material to the Company, including any Contract to put such source code in escrow with a third party on behalf of a licensee or contracting party, other than any customer Contracts entered into in the Ordinary Course of Business consistent with past practice and substantially on the Company's standard terms and conditions providing for placement of such source code into escrow solely for the purpose of permitting the customer or its agents to use such source code in support of internal use of the Company's products, and (xiv) any contract settlement Contract other than (A) releases immaterial in nature or agreement containing any (x) non-competition amount entered into with former employees or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability independent contractors of the Company in the Ordinary Course of Business or (B) settlement Contracts only involving the payment of cash (which has been paid) in amounts that do not exceed $500,000 in any individual case. All Company Subsidiary to solicit customers or the manner Material Contracts are described in whichSection 2.11(a)(i) and (ii) are listed in Section 2.11(a)(i) and (ii), or the localities in whichrespectively, 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 (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect 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, 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 Material ContractsDisclosure Schedule.
Appears in 2 contracts
Sources: Combination Agreement (WiderThan Co., Ltd.), Combination Agreement (Realnetworks Inc)
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwise) to Part 3.10 of the Investor or its representatives true, Disclosure Schedule sets forth a complete and correct and complete copies list of each of the following contracts, agreements, leases, licenses and obligations related to which the Company or any Company Subsidiary is a party (each, a “Material Contract”):
(i) any contract or agreement relating Business 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, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under 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 with annual rent payments in excess of $500,000;both) would constitute a material default thereunder:
(va) any lease Contracts concerning confidentiality (other than typical confidentiality provisions contained in Contracts entered into in the ordinary course of business) or agreement under which the Company that purport to limit, curtail 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;
(vi) any contract or agreement limiting, in any material respect, restrict the ability of the Company or any of the Company Subsidiaries its future subsidiaries or Affiliates to engage conduct business in any geographic area or line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, restrict the Persons with any Person;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(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 $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of whom the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of its future subsidiaries or Affiliates may do business;
(xivb) Contracts with any contract employee, consultant or other independent contractor (including contracts with or “leases” from any truck owner-operator), and any offer letters for employment with the 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 any such compensation agreement containing or arrangement;
(c) Contracts with any labor union or other representative of employees (xincluding any collective bargaining agreement);
(d) Contracts with any employee leasing or temporary staffing agencies for the engagement of any leased employees or independent contractors;
(e) Contracts with any present or former officer, director or stockholder of the Company, or any Affiliate of such 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, other than (A) advances or reimbursements for travel and entertainment expenses, (B) employee confidentiality and non-competition disclosure agreements on the Company’s standard form, and (C) employee benefits generally available to employees.
(f) Contracts under which the Company has advanced or exclusive dealing obligations loaned any amount to any of its employees or other obligation Affiliates of the Company and which purports has not been repaid in full prior to limit or restrict in the date of this Purchase Agreement;
(g) Contracts granting any power of attorney with respect to the ability affairs of the Company or any Company Subsidiary otherwise conferring agency or other power or authority to solicit customers bind the Company;
(h) partnership or joint venture agreements;
(i) Contracts for the manner in whichacquisition, sale or the localities in which, all lease of material properties 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 (by merger, purchase or business; andsale of stock or assets or otherwise);
(xvj) Contracts with 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 (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect 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, 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 Material Contracts.Governmental Body;
Appears in 2 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (Heckmann CORP)
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwisea) to Except for the Investor or its representatives true, correct contracts and complete copies of each agreements described in Schedule 5.11 of the following to which Parent Disclosure Schedule (collectively, the Company or any Company Subsidiary "PARENT MATERIAL CONTRACTS"), neither Parent nor the Parent Subsidiaries is a party to or bound by the following contracts (each, a “which for purposes of this Agreement shall be deemed Parent Material Contract”Contracts):
(i) any distribution or software manufacturer's representative contract that represents ten percent (10%) or agreement relating to indebtedness for borrowed money, letters more 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, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of businessParent's combined annual revenues;
(ii) any contract for the provision of software, outsourcing or agreement that constitutes a collective bargaining consulting services or other arrangement with computer hardware, including contracts billed on time plus materials and fixed-price contracts involving in the case of any labor unionsuch contact more than $3,000,000 per annum;
(iii) any contract related to the provision of services to early-stage entities in consideration for, among other things, equity interests in such entities, along with any subscription or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-Kagreements with respect to investments in such entities and instruments or securities evidencing such equity interests, including any warrants or options;
(iv) any lease hedging arrangements, including any puts 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 with annual rent payments in excess of $500,000call options;
(v) any lease trust indenture, mortgage, promissory note, loan agreement or agreement under which other contract for the Company borrowing of money, any currency exchange, commodities or other hedging arrangement or any leasing transaction of the Company Subsidiaries is lessor of, or permits any Person type required to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiariesbe capitalized in accordance with US GAAP;
(vi) any contract or agreement limiting, for capital expenditures in excess of $3,000,000 in the aggregate;
(vii) any contract limiting in any material respect, respects the ability freedom of the Company Parent or any of the Company Subsidiaries 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;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viii) any contract pursuant to which the Parent or agreement that relates to Intellectual Property Rights (any Parent Subsidiary is a lessor of any machinery, equipment, motor vehicles, office furniture, fixtures or other than a license granted to personal property involving in the Company for commercially available software licensed on standard terms with a total replacement cost case of less any such contract more than $500,000)3,000,000 in any calendar year;
(ix) any contract with any Person (other than the Parent or agreement that concerns any Parent Subsidiary) with whom the sale Parent or acquisition of any material portion Parent Subsidiary does not deal at arm's length within the meaning of the Company’s businessCode;
(x) any allianceagreement of guarantee, cooperationsupport, joint ventureindemnification, shareholdersassumption or endorsement of, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;similar commitment with respect to, the obligations, liabilities (whether accrued, absolute, contingent or otherwise) or indebtedness of any other Person; or
(xi) any contract or agreement involving annual payments relating to the acquisition of a business for aggregate consideration in excess of $500,000 that cannot be cancelled by 1,000,000 entered into in the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;last three years.
(xiib) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants Parent and each Parent Subsidiary has performed all 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 agreement 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 (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect 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, 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 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 Material Contractsmade available to Company.
Appears in 2 contracts
Sources: Merger Agreement (Sapiens International Corp N V), Merger Agreement (Ness Technologies Inc)
Contracts. The (a) Except for the contracts and agreements described in Schedule 4.11 of the Company has Previously Disclosed Disclosure Schedule (collectively, the "COMPANY MATERIAL CONTRACTS"), neither Company nor the Company Subsidiaries is a party to or provided bound by the following contracts (by hard copywhich for purposes of this Agreement shall be deemed Company Material Contracts):
(i) 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, electronic data room outsourcing or otherwiseconsulting 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 the Investor provision of services to early-stage entities in consideration for, among other things, equity interests in such entities, along with any subscription or its representatives trueother agreements with respect to investments in such entities and instruments or securities evidencing such equity interests, correct and complete copies 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 the borrowing of each money, any currency exchange, commodities or other hedging arrangement or any leasing transaction of the following type required to be capitalized in accordance with US GAAP;
(vi) any contract for capital expenditures in excess of $3,000,000 in the aggregate;
(vii) any contract limiting in any material respect the freedom of the Company or any Company Subsidiary to engage in any line of business or to compete with any other Person;
(viii) any contract pursuant to which the Company or any Company Subsidiary is a party (each, a “Material Contract”):
(i) 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 lessor of any machinery, equipment, motor vehicles, office furniture, fixtures or other personal property involving in the case of the foregoing, but any such contract more than $3,000,000 in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) 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 Person with annual rent payments in excess of $500,000;
(v) 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;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to 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;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(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 $500,000)calendar year;
(ix) any contract with any Person (other than the Company or agreement that concerns any Company Subsidiary) with whom the sale Company or acquisition of any material portion Company Subsidiary does not deal at arm's length within the meaning of the Company’s businessCode;
(x) any allianceagreement of guarantee, cooperationsupport, joint ventureindemnification, shareholdersassumption or endorsement of, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;similar commitment with respect to, the obligations, liabilities (whether accrued, absolute, contingent or otherwise) or indebtedness of any other Person; or
(xi) any contract or agreement involving annual payments relating to the acquisition of a business for aggregate consideration in excess of $500,000 that cannot be cancelled by 1,000,000 entered into in the last three years.
(b) Company or a and each Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants has performed all 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 agreement 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 (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect 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, 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 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 Material Contractsmade available to Parent.
Appears in 2 contracts
Sources: Merger Agreement (Sapiens International Corp N V), Merger Agreement (Ness Technologies Inc)
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwisea) There have been made available to the Investor or its representatives Parent true, correct and complete copies of each all of the following contracts to which the Company or any Company Subsidiary is a party (each, a “Material Contract”):
(i) 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, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under which the Company or any of the Company its Subsidiaries is lessee of, a party or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000;
(v) any lease or agreement under which the Company or any of the Company Subsidiaries them is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any bound as of the Company Subsidiaries;
date of this Agreement (vi) any contract or agreement limiting, in any material respectcollectively, the ability "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 to engage from competing in any line of business or to competewith any person in any geographical area, whether by restricting territoriesother than those the performance or breach of which could not, customers or otherwise, individually or in any 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 material respectcontracts relating to the borrowing of money, with any Person;
other than (viiA) any settlement, conciliation or similar agreement, of the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viii) foregoing with respect to indebtedness to 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 Person of less than $500,000);
5.0 million, (ixB) intercompany loans or guarantees between the 22 Company and any contract of its Subsidiaries or agreement that concerns between any such Subsidiaries or for the sale benefit of, or acquisition of any material portion of the Company’s business;
(x) any allianceguaranteeing or securing obligations of, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company and (C) security agreements covering personal property that are not individually or any in the aggregate material to the Company and its Subsidiaries, taken as a whole.
(b) Except as specified in Section 3.14 of the Company Subsidiaries other thanDisclosure Letter, with respect to non-executive employees and consultants, in the ordinary course of business;
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability all 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 (A) is legal, valid and binding on the Company and the Company Subsidiaries which Contracts are a party to such contract, (B) is 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 its terms 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 (C) will continue 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, bindingbinding or enforceable against the Company and/or its Subsidiaries has not had and could not, enforceableindividually or in the aggregate, and reasonably be expected to have a Company Material Adverse Effect. Except as specified in full force and effect in all material respects following the consummation Section 3.14 of the transactions contemplated by the Transaction Documents. Neither Company Disclosure Letter, neither the Company nor any of the Company Subsidiariesits Subsidiaries is in breach or default in any material respect under any Material Contract nor, nor to the Knowledge of the Company, is any other party thereto is in material violation or default under any Material Contract. No benefits under 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 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 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 reasonably be expected to have a Company Material ContractsAdverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Federated Department Stores Inc /De/), Merger Agreement (Fingerhut Companies Inc)
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwisea) to the Investor or its representatives true, correct and complete copies of each Section 3.16(a) of the following Company 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 or any Company Subsidiary of its Subsidiaries is a party (each, a “Material Contract”):or by which the Company or any of its Subsidiaries or any of their respective properties or assets is bound that:
(i) any contract is or agreement relating 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, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued distribution Contracts entered into in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) provides for indebtedness for borrowed money of the Company or any contract of its Subsidiaries having an outstanding or agreement that is a “material contract” within committed amount in excess of $10 million, other than (A) indebtedness solely between or among any of the meaning Company and any of Item 601(b)(10its wholly owned Subsidiaries or (B) letters of Regulation S-Kcredit;
(iv) relates to the acquisition or disposition of any lease business, assets or agreement 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 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 Company or any of its Subsidiaries of more 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);
(v) is a Contract (other than purchase orders under a master agreement) for the purchase of materials, supplies, goods, services, equipment or 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 Person with annual rent payments in excess of $500,000fiscal year;
(vvi) is a Contract (other than purchase orders under a master agreement) with a customer of the Company or any lease or agreement under of its Subsidiaries pursuant to which the Company or any of its Subsidiaries received aggregate net payments of more than $10 million during the Company Subsidiaries is lessor offiscal year ended December 31, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries2016;
(vivii) contains any contract or agreement provision (A) limiting, in any material respect, the ability right of the Company or any of the Company its Subsidiaries to engage in any line business, make use of business or to competeany material Intellectual Property, whether by restricting territories, customers or otherwise, or in any other material respect, compete with any Person;
, or operate anywhere in the world, or (viiB) 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 any 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 sell or distribute 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 settlement, conciliation 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 similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;specified territories; or
(viii) any contract is a (A) license or agreement that relates similar Contract 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 $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance▇▇▇▇▇-▇▇▇▇▇▇ Act related litigation or (y) any products covered by an NDA and entered into since January 1, cooperation2011, joint ventureor (B) settlement, shareholderscoexistence agreement, partnership covenant not to ▇▇▇ or similar agreement involving Contract with respect to any material Intellectual Property, in each case, to which the Company or any of its Subsidiaries is a sharing of profits party, beneficiary or losses relating otherwise bound (other than generally commercially available, “off the shelf” software programs or non-exclusive licenses granted by or to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments of its Subsidiaries in excess the ordinary course of $500,000 that canbusiness which do not be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) contain any material hedge, collar, option, forward purchasing, swap, derivative restriction or similar agreement, understanding condition on the use or undertaking;
(xiii) any contract or agreement with respect to the employment or service exploitation of any current or former directors, officers, employees or consultants of material Intellectual Property by the Company or any of the Company Subsidiaries other than, its Subsidiaries).
(b) Except with respect to non-executive employees and consultantsany Contract that has previously expired in accordance with its terms, in the ordinary course of business;
been terminated, restated or replaced, (xiva) any contract or agreement 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 each Material Contract (A) is 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 thereto, as applicable, and to such contractthe Knowledge of the Company, (B) each other party thereto, and is in full force and effect and enforceable in accordance with its terms and (C) will continue effect, except where the failure to be legal, valid, binding, enforceable, and binding or in full force and effect would not, individually or in all material respects following the consummation of the transactions contemplated by the Transaction Documents. Neither aggregate, reasonably be expected to have a Material Adverse Effect, (b) the Company nor any and each of the Company its Subsidiaries, nor and, to the Knowledge of the Company, any other party thereto is thereto, have performed all obligations required to be performed by it under each Material Contract, except where such nonperformance would not, individually or in material violation 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. No benefits under any , except where such default would not, individually or in the aggregate, reasonably be expected to have a Material Contract Adverse Effect, (d) there are no events or conditions which constitute, or, after notice or lapse of time or both, will be increased, and no vesting constitute a default on the part of any benefits under any Material Contract will be accelerated, 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 or 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 any counterparty under each such Material Contract, Contract and (e) to the Knowledge of the Company, no event the Company has occurred not received any notice from any Person that with notice or lapse of time would constitute a material breach or default or permit termination, modificationsuch Person intends to terminate, or accelerationnot renew, under any Material Contract, except as would not, individually or in the aggregate, reasonably be expected to have a Material ContractsAdverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Fresenius SE & Co. KGaA), Merger Agreement (Akorn Inc)
Contracts. (a) The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwise) Made Available to the Investor or its representatives true, AcquisitionCo a correct and complete copies copy of each of the following written contracts to which the Company or any Company Subsidiary of its Subsidiaries is a party (eachparty, a “Material Contract”):or by which the Company or any of its Subsidiaries is bound, that are in effect as of the date hereof:
(i) any contract (or agreement relating 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 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, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000100,000;
(iv) any contract concerning noncompetition that limits or otherwise restricts the Company or any of its Subsidiaries or that would, except after the Effective Time, limit or restrict Parent, AcquisitionCo, the Surviving Corporation 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 or any of its Subsidiaries 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 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, or option to sell or exchange, any material Company Property, or for the 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 assets or Equity Interests of another person for aggregate consideration in excess of $100,000, in each case other than in the ordinary course of business;
(iix) any contract or agreement that constitutes a collective bargaining 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
(iiixi) each written amendment, supplement and modification in respect of any contract or agreement that is a “material contract” within of the meaning of Item 601(b)(10foregoing.
(b) Except as set forth in Section 4.14(b) of Regulation S-K;
(iv) any 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 with annual rent payments in excess of $500,000;
(v) any 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;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to 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;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(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 $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any allianceknowledge, cooperationthe other party thereto, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or 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 agreement 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 (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable effect; (ii) except for any such contract that expires in accordance with its terms and (C) 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 in all material respects 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 Knowledge of the Companyas applicable, any other party thereto is in material violation breach or default under any Material Contract. No benefits under any Material Contract will be increaseddefault, 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 Material Contractscontract; and (iv) to the Company’s knowledge, no other party to the contract is in material breach or default, and no event has 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. The Company has Previously Disclosed provided to each Investor that has made a request (including via access in any virtual data room) or provided (by hard copy, electronic data room or otherwise) to the Investor or its such Investor’s representatives true, correct and complete copies of each of the following to which the Company or any Company Subsidiary is a party party, each of which has been Previously Disclosed (each, a “Material Contract”):
(i) 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 businessBusiness, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000300,000, except for those issued in the ordinary course Ordinary Course of businessBusiness;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) 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 Person with annual rent payments in excess of $500,000;
(v) 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;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to 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;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(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 $500,000);
(ixiii) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(xiv) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xiv) any contract or agreement involving annual payments in excess of $500,000 300,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 60 days’ notice;
(xiivi) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiiivii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course Ordinary Course of business;Business; and
(xivviii) any contract or agreement 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 (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect 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, 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 Material Contracts.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Professional Holding Corp.), Stock Purchase Agreement (Professional Holding Corp.)
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwisea) Other than Contracts that are reasonably expected to expire prior to the Investor Closing without any liability on the part of the Company or its representatives any Acquired Company, Schedule 3.7 constitutes a true, correct and complete copies list of the following Contracts relating to the Business to which any Acquired Company is a party or by which any of its assets relating to the Business is bound (each of Contract so listed or required to be so listed being a “Major Contract”) and each Major Contract is listed under a heading in Schedule 3.7 that corresponds with the applicable clause among the following to which the Company or any Company Subsidiary is a party (each, a “Material Contract”):such Major Contract relates:
(i1) each Contract regarding any contract employment, severance or change-of-control (excluding the Company’s standard forms of offer letter and separation 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 used in the ordinary course Ordinary Course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipmentBusiness) in excess of $500,000, except for those issued in the ordinary course of business(each such contract indicated on Schedule 3.7 as such is an “Executive Employment Agreement”);
(ii2) each covenant not to compete that restricts in any contract or agreement that constitutes a collective bargaining or other arrangement with any labor unionrespect the operation of the Business as presently conducted;
(iii3) any contract each operating lease (as lessor or agreement that is a “material contract” within the meaning of Item 601(b)(10lessee) of Regulation S-Ktangible personal property;
(iv4) each Contract to pay or receive any royalty or license fee or to license (either as licensor or licensee) any lease or agreement under material 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 Company or any Ordinary Course of Business of the Company Subsidiaries is lessee ofAcquired Company);
(5) each Contract regarding any management, personal service or holds consulting or operates, any property owned by any other Person with annual rent similar type of Contract involving payments in excess of $500,000100,000 in any calendar year (other than those that are or on the Closing Date will be terminable at will or upon not more than 30 days’ notice by the applicable Acquired Company without any Liability to the applicable Acquired Company, except Liability with respect to services rendered before the termination thereof);
(v6) each Contract for the purchase by any Acquired Company of any supply or product (except those entered into in the Ordinary Course of Business on an order-by-order basis where the amount thereof is less than $100,000 per Contract);
(7) each mortgage agreement, deed of trust, security agreement, purchase money agreement, conditional sales contract, capital lease or agreement under which the other similar Contract created or assumed by, or permitted to be created by written document made or accepted by, any Acquired Company or any of the Company Subsidiaries is lessor ofsale-leaseback arrangement pertaining to any real property or to equipment (other than any purchase money agreement, conditional sales contract, capital lease or permits any Person to hold or operate, any other similar Contract evidencing Encumbrances only on tangible personal property owned or controlled by the Company or any of the Company Subsidiariesunder which there exists an aggregate future Liability less than $100,000 per Contract);
(vi8) each Contract under which any Acquired Company is obligated to repay or has guaranteed any outstanding Indebtedness for borrowed money or remains obligated to lend to or make any investment in (in the form of a loan, capital contribution or otherwise) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to 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;
(vii9) each Contract under which any settlement, conciliation Acquired Company has advanced or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000loaned money to any other Person;
(viii10) each outstanding power of attorney with respect to 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 $500,000)Acquired Company;
(ix11) each lease or sublease (whether as lessor or lessee) for the use or occupancy of real property by any Acquired Company;
(12) each Contract requiring any Acquired Company to reimburse any maker of a letter of credit or banker’s acceptance;
(13) each partnership, joint venture or similar Contract of any Acquired Company;
(14) each Contract, other than any Contract of a nature described in clause (1) or (5) above, with any Affiliate of (A) any contract Acquired Company or agreement that concerns the sale (B) any officer, director, governor or acquisition manager of (or any person holding a similar position with) any Acquired Company;
(15) each Contract with any distributor or broker of any product or service offered by any Acquired Company;
(16) each Contract containing any form of most-favored pricing provision in favor of any supplier or customer of any Acquired Company;
(17) other Contract that is material portion to any Acquired Company; and
(18) each other Contract not entered into in the Ordinary Course of Business of any Acquired Company.
(b) The Company has made available to Buyer a true, correct and complete copy of each Major Contract and copies of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing standard form of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with offer letter. With respect to the employment or service of any current or former directorseach Major Contract, officers, employees or 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;
(xiv1) any contract or agreement 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 such Major Contract (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contractbinding, (B) is in full force and effect and enforceable (except to the extent enforceability may be limited by any Enforcement Limitation) in accordance with its terms and (C) will continue to be legalagainst the Applicable Acquired Company and, valid, binding, enforceable, and in full force and effect 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, any against each other party thereto thereto, (2) the Applicable Acquired Company is in material violation or default under any Material Contract. No benefits under any Material Contract will be increasednot and, 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 no other party thereto is in material breach of the or default under such Major Contract and no party thereto has given to any other parties theretoparty thereto written notice alleging that such a breach or default occurred, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and (3) to the Knowledge of the Company, 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 Major Contract or of any material right or Liability thereunder, (4) the Company has not waived any material right under such Major Contract, (5) no party to such Major Contract has terminated, modified, accelerated or canceled such Major Contract or any material right or Liability thereunder or communicated in writing such party’s desire or intent to do so, (6) the Material ContractsCompany has not received any prepayment under such Major Contract for any service that has not been fully performed or good that has not been supplied (other than as is fully reflected in the financial records of the Company and will be included within the calculation of the Final Net Book Value Amount) and (7) if the parties to such Major Contract are performing under terms that have expired by the express terms of such Major Contract, then Schedule 3.7 identifies such expiration and describes the material terms under which such parties continue to perform.
(c) In the case of each value added reseller agreement and original equipment manufacturer agreement, Schedule 3.7 indicates in each instance any such Contracts which materially deviate from one of the Company’s standard value added reseller agreements and standard original equipment manufacturer agreement. Aside from such descriptions on Schedule 3.7, each value added reseller agreement and original equipment manufacturer agreement does not materially deviate from the Company’s standard value added reseller agreement and standard original equipment manufacturer agreements.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Imation Corp), Agreement and Plan of Merger (Imation Corp)
Contracts. The (a) Section 4.11 of the Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwise) to the Investor or its representatives true, correct and Disclosure Schedule sets forth a complete copies list of each of the following agreements to which the Company or Company, any Company Subsidiary or any Nonprofit Organization is a party (each, a “Material Contract”):or by which any of them is bound:
(i) any contract or agreement relating that would be required to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured be filed by the Company as 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, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business;
(ii) any material contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of pursuant to Item 601(b)(10) of Regulation S-K;
(ii) contract containing covenants of the Company, any Company Subsidiary or Nonprofit Organization not to compete in any line of business, industry or geographical area or which affects the ability of an Affiliate of the Company, any Company Subsidiary or any Nonprofit Organization from competing in any line of business, industry or geographical area;
(iii) contract which does, or could reasonably be construed to, create a partnership or joint venture or similar arrangement with respect to any material business of the Company, any Company Subsidiary or Nonprofit Organization;
(iv) any lease contract that, individually or in the aggregate, could or could reasonably be expected to prevent, materially delay or materially impede the Company’s ability to consummate the transactions contemplated by this Agreement;
(v) indenture, credit agreement, loan agreement, guarantee, note or other evidence of Indebtedness or agreement under providing for Indebtedness in excess of the Material Amount;
(vi) contract (other than the ANM Merger Agreement, the Sedora Merger Agreement and this Agreement) for the acquisition or sale of assets (whether by merger, consolidation, acquisition of stock or assets or otherwise) in excess of the Material Amount;
(vii) collective bargaining agreement, employment agreement, offer letter, or severance or termination or transition agreement, in each case providing for annual payments of more than the Material Amount;
(viii) agreement (or group of related agreements) for the lease of personal property providing for annual payments of more than the Material Amount;
(ix) contract (other than purchase orders) for the purchase or sale of materials, supplies, goods, equipment, products, merchandise or other assets, or for the furnishing or receipt of services, with any of the top 20 vendors of the Company, the Company Subsidiaries and the Nonprofit Organizations, based on aggregate payments made by the Company, the Company Subsidiaries and the Nonprofit Organizations to such vendors, taken as a whole, during the fiscal year ending June 30, 2005;
(x) contract that contains a put, call, right of first refusal or similar right pursuant to which the Company, any Company Subsidiary or any Nonprofit Organization could be required to purchase or sell, as applicable, any Equity Interests of any Person or assets that have a fair market value or purchase price of more than the Material Amount;
(xi) settlement or conciliation agreement or similar agreement (except for benefit plans and individual employee agreements) or order or consent of a Governmental Authority to which the Company or any of the Company Subsidiaries or Nonprofit Organizations is lessee of, or holds or operates, any property owned a party involving future performance by any other Person with annual rent payments in excess of $500,000;
(v) 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;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to 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;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(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 $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or 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 agreement 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 or Nonprofit Organization which is material to solicit customers the Company;
(xii) other contract (other than the ANM Merger Agreement, the Sedora Merger Agreement, this Agreement or purchase orders in the manner in which, or the localities in which, all or any portion Ordinary Course of the business of the Company or the Company Subsidiaries is or can be conducted, or (yBusiness) right of first refusal or right of first offer or similar right or that limits or purports pursuant to limit the ability of which the Company or any Company Subsidiary or Nonprofit Organization has incurred a Liability in excess of the Material Amount or providing for payments from the Company Subsidiaries or any Company Subsidiary or Nonprofit Organization in excess of the Material Amount or the consequences of a default or termination of which could have a Material Adverse Effect;
(xiii) contract by which the Company, any Company Subsidiary or any Nonprofit Organization licenses to ownor from any Person any material Intellectual Property or that otherwise concerns material Intellectual Property or that otherwise concerns material Intellectual Property;
(xiv) agreement with any shareholder, operateformer shareholder, sellaffiliate, transferdirector or officer of the Company, pledge any Company Subsidiary or otherwise dispose any Nonprofit Organization, or any relative of any material assets or businessof the foregoing; and
(xv) any material Real Property Leases; and
(xvi) Tax sharing agreements or similar agreements with respect to Taxes.
(b) Each such contract or agreement that would require any consent or approval of a counterparty described in Section 4.11(a) is referred to herein as a “Material Contract.” With respect to each Material Contract: (i) neither the Company nor any Company Subsidiary or Nonprofit Organization is (and, to the knowledge of the Company, no other party is) in or is alleged to be in breach of or default under such Material Contract; (ii) neither the Company nor any Company Subsidiary or Nonprofit Organization has given or received any written notice or claim of default under such Material Contract; (iii) no event has occurred that, with or without notice or lapse of time or both, would result in a breach or a default under such Material Contract; (iv) such Material Contract is in full force and effect, and is the valid, binding and enforceable obligation of the Company, the Company Subsidiaries or the Nonprofit Organizations, as applicable, and to the knowledge of the Company, of the other parties thereto; (v) the consummation of the transactions contemplated by this Agreement. Each Agreement will not result in such Material Contract (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party failing to such contract, (B) is continue in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following after the consummation of such transactions without penalty or other adverse consequence; (vi) no party has repudiated any provision of such Material Contract; and (vii) except as set forth in Section 4.11(b) to the Company Disclosure Schedule, such Material Contract does not contain any “change of control” or similar provision that would be triggered by, or contain an assignment prohibition or similar provision that would prohibit, the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Knowledge of the Company, 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 Documentsthis Agreement. The Company has made available to Acquiror true, correct and the Company Subsidiaries, and to the Knowledge complete copies 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 including all material breach or default or permit termination, modification, or acceleration, under the Material Contractsamendments thereto.
Appears in 2 contracts
Sources: Merger Agreement (Westland Development Co Inc), Merger Agreement (Westland Development Co Inc)
Contracts. The Company has Previously Disclosed or provided Except as otherwise disclosed in Schedules 3.13 (by hard copyReal Property), electronic data room or otherwise3.14(Intellectual Property), 3.20 (Insurance), 3.23 (Employment) to the Investor or its representatives true, correct and complete copies of each 3.27 (Customers and Suppliers) of the following Disclosure Letter, Schedule 3.17 of the Disclosure Letter lists each Contract to which the Company or any Company Subsidiary Acquired Entity is a party (each, a “Material Contract”):which:
(ia) is for the lease of personal property to or from any contract or agreement relating to indebtedness 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, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) 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 Person with annual rent payments in excess of $500,000£100,000 per annum;
(vb) any lease is for the purchase or agreement under which the Company or any sale of the Company Subsidiaries is lessor ofraw materials, commodities, supplies, products, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to engage in any line of business or to compete, whether by restricting territories, customers or otherwiseother personal property, or in any other material respect, with any Person;
(vii) any settlement, conciliation for the furnishing or similar agreementreceipt of services, 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 Closing Date of consideration in excess of $500,000£100,000;
(viiic) any contract concerns an investment or agreement that relates to Intellectual Property Rights (other than interest in a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliancelimited liability company, cooperationpartnership, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiaryarrangement;
(xid) any contract Contract under which it has created, incurred, assumed, or agreement involving annual payments guaranteed any Liability for borrowed money or any capitalized lease in excess of $500,000 that cannot be cancelled by the Company £100,000, or a Company Subsidiary without penalty under which it has imposed or suffered to exist an Encumbrance on not more than 90 days’ noticeany of its assets;
(xiie) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertakingContract concerning non-competition;
(xiiif) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company Seller or any of their Affiliates (other than the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of businessAcquired Entities) is also a party;
(xivg) is a collective bargaining Contract;
(h) 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 are not Sellers;
(i) any contract or agreement containing Contract for the employment of any (x) nonindividual on a full-competition or exclusive dealing obligations time, part-time, consulting, independent contractor or other obligation basis providing annual compensation in excess of £50,000 or providing severance benefits;
(j) the performance of which purports to limit or restrict involves consideration payable by any Acquired Entity in any respect the ability excess 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£100,000; and
(xvk) any material contract or agreement that would require any consent or approval is outside the Ordinary Course of Business. Management Sellers have delivered to Buyer a counterparty correct and complete copy of each written Contract (as a result amended to date) required to be listed in Schedule 3.17 of the consummation Disclosure 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 transactions contemplated by this AgreementDisclosure Letter. Each Material Contract With respect to each such Contract:
(A) the Contract is legal, valid and legally binding on the Company and the Company Subsidiaries which are a party parties to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and it in full force and effect in all material respects accordance with its respective terms;
(B) to the Management Sellers’ Knowledge, the Contract will continue 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 Knowledge of the CompanyManagement Sellers’ Knowledge, any other no party thereto is in material violation or default under any Material Contract. No benefits under any Material Contract will be increasedbreach, 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 Material ContractsContract;
(D) no party to the Contract has repudiated, or advised the Acquired Entities or the Management Sellers in writing that it intends to repudiate, any provision of the 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. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwisea) Schedule 3.14(a) lists all written contracts and other agreements Related to the Investor or its representatives true, correct and complete copies of each of the following Business to which the Company ROI or any Company Subsidiary of its Subsidiaries is a party or by which any of their properties or assets are bound, having the following description(s) (eachcollectively, a “the "Material Contract”Contracts"):
(i) any contract agreement (or agreement relating group of related agreements) Related to indebtedness the Business for borrowed money, letters the lease of credit, capital personal property to or from any Person providing for 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, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) payments in excess of $500,000, except for those issued in the ordinary course of business10,000 per annum;
(ii) any contract agreement (or agreement that constitutes a collective bargaining group of related agreements) Related to the Business for the purchase or sale of supplies, products, or other arrangement with any labor unionpersonal property, or for the furnishing or receipt of services, the performance of which will extend over a period of more than one year or involve consideration in excess of $10,000;
(iii) any agreement Related to the Business concerning a partnership or joint venture or other contract or agreement that is involving a “material contract” within the meaning sharing of Item 601(b)(10) profits, losses, costs or liabilities by ROI, Seller or any of Regulation S-Ktheir Affiliates with any other Person;
(iv) any lease agreement (or agreement group of related agreements) under which the Company ROI or any of the Company its Subsidiaries is lessee ofhas created, incurred, assumed, or holds guaranteed any indebtedness for borrowed money, or operatesany capitalized lease obligation, any property owned by any other Person with annual rent payments in excess of $500,00010,000 or under which it has imposed an Encumbrance on any of Transferred Assets, tangible or intangible;
(v) any lease or material agreement under which Related 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 SubsidiariesBusiness concerning confidentiality;
(vi) any contract material agreement of ROI or Seller with any of Seller's Affiliates which is Related to the Business;
(vii) any agreement limiting, in Related to the Business which contains any material respect, provision or covenant limiting (A) the ability of the Company or any of the Company Subsidiaries Seller to engage in any line of business or business, to compete, whether by restricting territories, customers or otherwise, or in any other material respect, compete with any Person;
, to do business with any Person in any location or to employ any Person, (viiB) the ability of any settlement, conciliation Person to compete with or similar agreement, obtain products or services from Seller or (C) the performance ability of which will involve payment after the Closing Date of consideration in excess of $500,000Seller to do business other than with a specified Person or Persons;
(viii) any contract or collective bargaining agreement that relates and any other agreements relating 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 $500,000)organized labor;
(ix) any contract or agreement that concerns of Seller for the sale or acquisition employment of any material portion of the Company’s business;
(x) any allianceindividual on a full-time, cooperationpart-time, joint ventureconsulting, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving other basis providing annual payments compensation in excess of $500,000 that cannot be cancelled by the Company 20,000 or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service providing severance benefits in excess of any current or former directors, officers, employees or 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 agreement 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 (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect 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, 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 Material Contracts$3,000.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Return on Investment Corp), Asset Purchase Agreement (Return on Investment Corp)
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwisea) to the Investor or its representatives true, correct Asset Disclosure Schedule 4.14(a) contains a true and complete copies of each listing of the following contracts and other agreements with respect to which the Company ownership and operation of the Assets (each such contract or any Company Subsidiary is a party (each, agreement being referred to herein as a “Material Contract”):
(i) any contract Any natural gas gathering 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, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of businesstransportation agreement;
(ii) Any agreement (or group of related agreements with the same Person) for the lease of personal property to or from any contract or agreement that constitutes a collective bargaining or other arrangement with any labor unionPerson providing for lease payments in excess of $250,000 per annum;
(iii) any contract Any agreement (or agreement that 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 a “material contract” within the meaning reasonably expected to involve annual consideration in excess of Item 601(b)(10) of Regulation S-K$250,000;
(iv) any lease or Any 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 with annual rent payments in excess of $500,000;
(v) 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;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to 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;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viii) any contract or agreement that relates to Intellectual Property Rights (other than concerning a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperationpartnership, joint venture, shareholders, partnership investment or similar agreement other arrangement (A) involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or 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 agreement 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 conductedAssets, or (yB) right 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 first refusal related agreements with the same Person) with respect to the creation, incurrence, assumption, or right guaranteeing of first offer any indebtedness for borrowed money, or similar right any capitalized lease obligation;
(vi) Any agreement that prohibits or that otherwise materially limits or purports to limit the ability of an owner of the Company Assets to compete in any material respect in any line of business or with any Person or in any material geographic area during any period of time after the Closing of the Asset Contribution;
(vii) 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 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 default or termination 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 by any party thereto involves consideration in excess of $250,000.
(b) EQT Gathering has made available to EQM and/or EQM Gathering Opco a correct and complete copy of each Material Contract.
(i) Each Material Contract, and each of the other Transferred Contracts, is legal, valid and binding on and enforceable against EQT Gathering, and to the Knowledge of EQT Gathering, against the other parties thereto, and is in full force and effect; (ii) EQT Gathering is not in breach or default, and no event has occurred which with notice or lapse of time would constitute a breach or default by EQT Gathering or permit termination, modification or acceleration under any Material Contract or under any of the Company Subsidiaries other Transferred Contracts; (iii) to ownthe Knowledge of EQT Gathering, operateno other party to any Transferred Contract is in breach or default, selland no event has occurred which with notice or lapse of time would constitute a breach or default by such other party, transferor permit termination, pledge modification or otherwise dispose acceleration under any Transferred Contract other than in accordance with its terms, nor has any other party repudiated any provision of any material assets or businessTransferred Contract; and
and (xviv) any material contract or agreement that would require any consent or approval of a counterparty except as a result of set forth on Asset Disclosure Schedule 4.14(c), following the consummation of the transactions contemplated by this Agreement. Each , each Material Contract (A) is legal, valid and binding on each of the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) other Transferred Contracts will continue to be legal, valid, binding, enforceable, valid and binding and in full force and effect 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 on identical terms.
(d) EQT Gathering has not given to the Knowledge of the Company, or received from any other party thereto is in material 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. No benefits under 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 that continues 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 Material Contractsunresolved.
Appears in 2 contracts
Sources: Contribution and Sale Agreement (EQT Midstream Partners, LP), Contribution and Sale Agreement
Contracts. The (a) Section 3.13(a) of the Company has Previously Disclosed or provided (by hard copyDisclosure Letter sets forth, electronic data room or otherwise) to as of the Investor or its representatives date hereof, a true, correct and complete copies list of each of the following 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 (eachor which binds their respective properties or assets, a “Material Contract”):and that falls within any of the following categories:
(i) any contract joint venture, partnership, or agreement relating 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, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of businessCompany Subsidiary owns an Equity Interest;
(ii) any contract or agreement Contract that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under which requires aggregate capital expenditures by the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person with annual rent payments in an amount in excess of four million dollars ($500,0004,000,000) 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 (B) any ordinary course Contracts with respect to land acquisitions, land development and construction;
(viii) any lease settlement, conciliation or agreement under which similar Contract (A) with any Governmental Entity, (B) that requires the Company or any of the Company Subsidiaries is lessor of, to pay any monetary consideration of more than four hundred thousand dollars ($400,000) after the date of this Agreement or permits (C) that would otherwise limit in any Person to hold or operate, any property owned or controlled by material respect the operation of the Company or any Company Subsidiary (or, to the Knowledge of the Company SubsidiariesCompany, Parent or any of its other affiliates from and after the Closing) as currently operated;
(viiv) any contract or agreement limiting, Contract that contains any covenant limiting in any material respect, respect the ability of the Company or any of the Company Subsidiaries 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, in each case, in any geographic area;
(viiv) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
Contract (viiiA) any contract or agreement that relates to Intellectual Property Rights any completed acquisition, divestiture, merger or similar transaction and contains representations, covenants, indemnities or other obligations that remain in effect (excluding any transactions solely among the Company and any wholly owned Company Subsidiary) and that are material to the business of the Company and the Company Subsidiaries, taken as a whole, (B) for any pending acquisition, directly or indirectly (by merger or otherwise) of a portion of the assets (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000);
(ix) any contract goods, products or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, services in the ordinary course of business;
) or Equity Interests of any Person for aggregate consideration in excess of two million dollars (xiv$2,000,000) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation pursuant to which purports to limit or restrict in any respect the ability of 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 solicit customers or the manner in which, or the localities in which, all or acquire any portion of the business 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 can be conductedother 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 (y$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) right any Contract for (A) the sale of first refusal any land parcels (whether or right of first offer or similar right or that limits or purports to limit the ability 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 Subsidiaries or a Company Subsidiary or (C) the option to ownpurchase any land parcels (whether or not developed) of the Company or a Company Subsidiary, operatein the case of clauses (B) and (C), sell, transfer, pledge or otherwise dispose with a total purchase price for the land parcels subject thereto in excess of any material assets or eight million dollars ($8,000,000) (other than individual home sales in the ordinary course of business); and
(xvviii) 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 (A) is legal, valid and binding on pursuant to which the Company or any Company Subsidiary receives a license to use any material 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 the Company Subsidiaries which are a party to such contract, conditions) or (B) pursuant to 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 and enforceable in accordance with its terms (except as may be limited by the Enforceability Exceptions) and (Cii) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation none of the transactions contemplated by the Transaction Documents. Neither the Company, any Company nor any of the Company SubsidiariesSubsidiary or, nor to the Knowledge of the Company, any other party thereto counterparty is in material violation breach or default under any Company 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 Material Contracts.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (William Lyon Homes), Merger Agreement (Taylor Morrison Home Corp)
Contracts. The (a) Section 3.14(a) of the Company has Previously Disclosed Disclosure Schedule contains a complete and accurate list of all contracts (written or provided oral), plans, undertakings, commitments or agreements (by hard copy, electronic data room or otherwise"Contracts") to the Investor or its representatives true, correct and complete copies of each of the following categories to which the Company or any Company Subsidiary of its Subsidiaries is a party (each, a “Material Contract”):or by which any of them is bound as of the date of this Agreement:
(iA) any contract with respect to officers with annual base compensation equal to 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, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000100,000: 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;
(iivii) any contract other than license agreements and distribution agreements, Contracts involving annual expenditures or agreement that constitutes a collective bargaining liabilities in excess of $10,000,000 which are not terminable by the Company without penalty upon 90 days or other arrangement with any labor unionless notice;
(iiiviii) 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 or agreement that is a “material contract” within the meaning of (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.
(ivb) any lease or agreement under which 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 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 with annual rent payments in excess of $500,000;
(v) 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 default by the Company or any of its Subsidiaries under any of the Company Subsidiaries;
Contracts, whether or not such breach, violation or default has been waived, and (viiii) any contract or agreement limiting, in any material respect, the ability of no event has occurred with respect to the Company or any of the Company its Subsidiaries to 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;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(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 $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or 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 agreement 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 (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect 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, 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 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 aggregate with other such breaches, violations or defaults referred to in clauses (ii) or (iii), would be reasonably likely to have a Material ContractsAdverse Effect.
Appears in 1 contract
Sources: Merger Agreement (Mattel Inc /De/)
Contracts. The (a) Section 3.16 of the Company has Previously Disclosed or provided (by hard copyDisclosure Letter lists, electronic data room or otherwise) to as of the Investor or its representatives truedate hereof, correct and complete copies of each of the following types of Contracts to which the Company or any Company Subsidiary of its Subsidiaries is a party (each, a “Material Contract”):or by which any of their respective properties or assets is bound:
(i) any contract or agreement relating 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, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is Company as a “material contract” within the meaning of 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;
(ivii) 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 Person with annual rent payments in excess of $500,000;
(v) 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;
(vi) any contract or agreement limiting, Contract that limits in any material respect, respect the ability of the Company or any of its Subsidiaries (or, following the Company Subsidiaries consummation of the Merger and the other transactions contemplated by this Agreement, would so limit the ability of Parent or any of its Subsidiaries, including the Surviving Corporation) to engage 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;
(viiiii) any settlementContract with respect to the formation, conciliation creation, operation, management or similar agreementcontrol of a Company Joint Venture;
(iv) any Contract involving the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests for aggregate consideration (in one or a series of transactions) under such Contract of $5,000,000 or more (other than acquisitions or dispositions of inventory in the performance ordinary course of which will involve payment business consistent with past practice), with material obligations remaining to be performed or material liabilities continuing after the Closing Date date of consideration this Agreement;
(v) any Contract (A) evidencing Indebtedness for borrowed money in excess of $500,000;
3,000,000, (viiiB) granting a Lien on any contract property 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 asset of less than $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or its Subsidiaries other than Permitted Liens, (C) restricting in any material respect the granting of Liens on any property or asset of the Company Subsidiary;
(xi) or its Subsidiaries, or the incurrence or guaranteeing of any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled Indebtedness by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
its Subsidiaries, (xiiD) providing for or relating to any material hedgeinterest, collarcurrency or hedging, option, forward purchasing, swap, derivative derivatives or similar agreement, understanding contracts or undertaking;
arrangements or (xiiiE) restricting payment of dividends or any contract or agreement with distributions in respect to of the employment or service of any current or former directors, officers, employees or consultants equity interests of the Company or any of its Subsidiaries; or
(vi) any Contract that (A) obligates the Company or any of its Subsidiaries other thanto make any capital commitment, loan or expenditure in an amount in excess of $3,000,000 individually or $10,000,000 in the aggregate under such Contract (determined solely with respect to remaining periods under such Contract during which such Contract cannot be terminated without penalty or cost), or (B) imposes any material non-executive employees and consultants, in financial obligations on the ordinary course of business;
(xiv) any contract Company or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports its Subsidiaries with respect to limit or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers dispose of any assets; provided, that (1) Company Plans and (2) any Contract between the Company, on the one hand, and one or more wholly-owned Subsidiaries of the manner in whichCompany, on the other hand, or the localities in which, all between one or any portion more wholly-owned Subsidiaries of the business Company, shall not be required to be listed in Section 3.16 of the Company Disclosure Letter, shall not be required to be made available to Parent pursuant to Section 3.16(b) and shall not be deemed a “Material Contract” for any purposes hereunder (whether or not filed pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or disclosed by 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 on a Current Report on Form 8-K). Each contract of the Company type described in clauses (i) through (vi) is referred to herein as a “Material Contract.”
(b) Except as would not and would not reasonably be expected to, individually or any in the aggregate, have a Material Adverse Effect, as of the Company Subsidiaries to owndate hereof, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; and
(xvi) 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 each Material Contract (A) is legal, valid and binding on the Company and any of its Subsidiaries to the Company Subsidiaries which are extent such Subsidiary is a party thereto, as applicable, and to such contractthe knowledge of the Company, (B) each other party thereto, and is in full force and effect and enforceable in accordance with its terms terms; (ii) the Company and each of its Subsidiaries, and, to the knowledge of the Company, each other party thereto, has performed all obligations required to be performed by it under each Material Contract; and (Ciii) will continue there is no default under any Material Contract by the Company or any of its Subsidiaries or, to be legalthe knowledge of the Company, valid, binding, enforceableany other party thereto, and in full force and effect in all material respects following no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a default on the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any part of the Company Subsidiariesor any of its Subsidiaries or, nor to the Knowledge knowledge of the Company, any other party thereto is in material violation or default under any such Material Contract. No benefits under , nor has the Company or any Material Contract will be increased, and no vesting of its Subsidiaries received any written notice of any benefits under any Material Contract will be acceleratedsuch default, 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 Documentsevent or condition. The Company has made available to Parent true and the Company Subsidiaries, and to the Knowledge complete copies 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 Material Contracts, including all amendments thereto.
Appears in 1 contract
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwisea) to the Investor or its representatives true, correct Schedule 3.9 provides a true and complete copies of each list of the following contracts to which the Company or any Company Subsidiary is a party (eachcollectively, a the “Material ContractContracts”):
(i) Real Property Leases, Personal Property Leases, Contracts related to insurance, Contracts affecting any contract Company Intellectual Property or agreement relating to indebtedness for borrowed moneythe Company’s information systems or software, letters of creditContracts with independent contractors, 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 Company Benefit Plans and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of businessGovernmental Approvals;
(ii) any contract Any Contract for capital expenditures or agreement that constitutes a collective bargaining for the purchase of goods or other arrangement with any labor unionservices in excess of $10,000;
(iii) Any Contract obligating the Company to sell or deliver any contract product or agreement that is service at a “material contract” within price which does not cover the meaning of Item 601(b)(10cost (including labor, materials and production overhead) of Regulation S-Kplus the customary profit margin associated with such product or service;
(iv) any lease Any Contract involving financing or agreement under which the Company or any borrowing of the Company Subsidiaries is lessee ofmoney, or holds or operatesevidencing indebtedness, any liability for borrowed money, any obligation for the deferred purchase price of property owned by any other Person with annual rent payments in excess of $500,0005,000 (excluding normal trade payables) or guaranteeing in any way any Contract in connection with any Person;
(v) any lease or agreement under which the Company Any joint venture, partnership, cooperative arrangement or any other Contract involving a sharing 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 Subsidiariesprofits;
(vi) Any Contract with any contract Governmental Authority;
(vii) Any Contract relating to any license or agreement limitingroyalty arrangement;
(viii) Any power of attorney, proxy or similar instrument;
(ix) Any Contract to indemnify any Person or to share in or contribute to the liability of any material respect, the ability of the Company or any of the Company Subsidiaries Person;
(x) Any Contract containing covenants not to engage compete in any line of business or to compete, whether by restricting territories, customers with any Person in any geographical area or otherwisethat would otherwise result in Purchaser being bound by, or in subject to, any non-compete or other material respectrestriction on the operation or scope of its businesses, with any Person;
(vii) any settlement, conciliation or similar agreement, including the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(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 $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company SubsidiaryBusiness;
(xi) Any Contract related to the acquisition of a business or the equity of any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ noticeother Entity;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative Any Contract within or similar agreement, understanding or undertakingneeded in the ordinary course of the Company’s operation of the Business;
(xiii) any contract or agreement Any warranty Contract with respect to the employment or service of any current or former directors, officers, employees or consultants of services rendered by the Company or any of products sold or leased by the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of business;Company; and
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict Any proposed arrangement of a type that, if entered into, would be a Contract described 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 (yi) 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; andthrough (xiii) above.
(xvb) any material contract or agreement that would require any consent or approval True and complete copies of a counterparty as a result each written Material Contract and true and complete written summaries of each oral Material Contract (including all amendments, supplements, modifications and waivers thereof) have been delivered to Purchaser by the consummation of the transactions contemplated by this Agreement. Company.
(c) Each Material Contract (A) is legal, currently valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following effect, and, to the consummation of the transactions contemplated Company’s Knowledge, is enforceable by the Transaction Documents. Neither Company in accordance with its terms.
(d) The Company is not in default, and no party has notified the Company nor any of the Company Subsidiaries, nor to the Knowledge of the Company, any other party thereto that it is in material violation or default default, under any Material Contract. No benefits under any Material Contract will be increasedevent has occurred, and no vesting circumstance or condition exists, that might, with or without notice or the lapse of any benefits under any Material Contract will be accelerated, by the occurrence time or both: (i) result in a violation or breach of any of the transactions contemplated by the Transaction Documents, nor will the value provisions of any of Material Contract; (ii) give any Person the benefits right to declare a default or exercise any remedy under any Material Contract be calculated on Contract; or (iii) give any Person the basis right to accelerate the maturity or performance of any of the transactions contemplated by the Transaction Documents. The Company and the Company SubsidiariesMaterial Contract or to cancel, 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 terminate or modify 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 Material Contracts.
Appears in 1 contract
Sources: Merger Agreement (Shutterfly Inc)
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwise) to Section 4.12 of the Investor or its representatives true, correct Disclosure Schedule sets forth a complete and complete copies accurate list of each all of the following Contracts to which the Company or any Company Subsidiary Seller Entity is a party (each, a “Material Contract”):or by which it is bound:
(ia) any contract or agreement 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 Seller Entity other than in the ordinary course of business, intercompany indebtedness and immaterial leases business or for telephones, copy machines, facsimile machines and the grant to any Person of any preferential rights to purchase any of such assets other office equipment) in excess of $500,000, except for those issued than in the ordinary course of business;
(iib) any contract Contracts for joint ventures, partnerships or agreement that constitutes a collective bargaining sharing of profits or other arrangement with any labor unionproprietary information;
(iiic) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) 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 Person with annual rent payments in excess of $500,000;
(v) any lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person Contracts containing covenants not to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to engage compete in any line of business or with any Person in any geographical area or not to compete, whether by restricting territories, customers solicit or otherwise, hire any Person with respect to employment or covenants of any other Person not to compete with the Seller in any line of business or in any other material respectgeographical area or not to solicit or hire any Person with respect to employment except, with respect to covenants not to solicit or hire, for any such Contracts in the ordinary course with customers and suppliers;
(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;
(viie) Contracts evidencing Indebtedness (whether incurred, assumed, guaranteed or secured by any Asset);
(f) any settlement, conciliation Contract under which any Seller Entity is required to provide continuing indemnification or similar agreement, the performance a guarantee of which will involve payment after the Closing Date obligations of consideration any Person in excess of $500,0005,000;
(viiig) any contract Contract under which any Seller Entity has advanced or agreement that relates loaned any amount 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 any of less than $500,000)its managers, directors or executive officers;
(ixh) any contract Contract between any Seller Entity, on the one hand, and any of their respective managers, directors or agreement that concerns executive officers, on the sale or acquisition of any material portion of other hand, other than the Company’s businessEmployment Contracts;
(xi) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing Contracts required to be listed in Section 4.11(c) of profits or losses relating to the Company or any Company SubsidiaryDisclosure Schedule;
(xij) collective bargaining Contracts;
(k) Contracts with customers or suppliers of any contract or agreement involving annual Seller Entity that involve payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice10,000 per year;
(xiil) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertakingAny Contract with a Governmental Authority;
(xiiim) any contract Contract under which any Seller Entity is obligated to make any capital commitment or agreement with respect to the employment or service expenditure in excess of any current or former directors, officers, employees or 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$5,000;
(xivn) any contract Contracts for the storage, treatment, disposal, recycling, investigation, removal or agreement containing any remediation of Hazardous Substances;
(xo) 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 Contracts providing for indemnification of any material assets officer or businessdirector of a Seller Entity, other than any existing directors’ and officers’ insurance policy and as provided in organizational documents of such Seller Entity, as currently in effect; and
(xvp) any material contract or agreement that would require any consent or approval other Contracts (other than those listed in clauses (a) through (n) of a counterparty as a result of this Section 4.12 and other than the consummation of the transactions contemplated by this Agreement. Each Material Contract Employment Contracts) (A) is legal, valid and binding on with a term longer than 90 days from the Company and the Company Subsidiaries which are a party to such contract, date hereof that involve payments by any Seller Entity in excess of $10,000 per year; or (B) with a term of less than one (1) year from the date hereof that involve payments by any Seller Entity in excess of $10,000, that are not terminable without liability, premium or penalty on less than 30 days’ notice. Except as set forth in Section 4.12 of the Disclosure Schedule, and assuming due authorization, execution and delivery by the other parties thereto, each Contract listed in Section 4.12 of the Disclosure Schedule, each Employment Contract and each Lease listed in Section 4.9(a) of the Disclosure Schedule is valid and is binding on each Seller Entity party thereto and, to Seller’s Knowledge, each other party thereto and is in full force and effect and enforceable effect. Except as set forth in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation Section 4.12 of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company SubsidiariesDisclosure Schedule, nor no Seller Entity, nor, to the Knowledge of the CompanySeller’s Knowledge, any other party thereto is in default or breach in any material violation respect under the terms of, nor has any Seller Entity received any notice of any material default or default under breach under, any Material Contract. No benefits under any Material such Contract will be increasedor Lease, 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 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 Lease or the Material loss of any material benefit thereunder. Seller has delivered or made available to Parent true, correct and complete copies of all Contracts listed in Section 4.12 of the Disclosure Schedule and of all Employment Contracts, together with all amendments thereto.
Appears in 1 contract
Sources: Merger Agreement (Universal Business Payment Solutions Acquisition Corp)
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwise) to the Investor or its representatives true, correct and complete copies of each of SECTION 4.14 OF THE DISCLOSURE SCHEDULE lists the following Contracts to which the Company or any Company Subsidiary is a party party:
(each, a “Material Contract”):a) any Contract for the lease of personal property to or from any Person;
(b) any Contract for (i) the purchase or sale of supplies, products or other personal property, the performance of which will extend over a period of more than one year or involve consideration in excess of $10,000 or (ii) for the furnishing or receipt of services, the performance of which will extend over a period of more than one year or involve consideration in excess of $50,000;
(c) any contract Contract under which the Company has created, incurred, assumed or agreement relating to guaranteed any indebtedness for borrowed moneymoney or any capitalized lease obligation, letters in excess of credit, capital lease obligations, obligations secured by $15,000 or under which it has imposed a Lien or interest rate or currency hedging agreements (including guarantees in respect of on any of its assets, tangible or intangible;
(d) any Contract concerning noncompetition;
(e) any Contract with the foregoingSeller or any Affiliate of the Seller (other than the Company);
(f) any profit sharing, but in stock option, stock purchase, stock appreciation, deferred compensation, severance or other material Contract, plan or arrangement for the benefit of its current or former directors, officers or employees;
(g) any event excluding trade payables, securities transactions and brokerage Contract concerning collective bargaining;
(h) except for standard employee confidentiality agreements arising in entered into the ordinary course of business, intercompany indebtedness and immaterial leases any Contract for telephonesthe employment of any individual on a full-time, copy machinespart-time, facsimile machines and consulting or other office equipmentbasis or providing severance benefits;
(i) in excess any Contract under which the Company has advanced or loaned any amount to any of $500,000its directors, except for those issued officers or employees;
(j) any Contract with any Governmental or Regulatory Authority other than Contracts transferred as part of the Government Business Divestiture; and
(k) any other Contract not made in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement business consistent with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under which past practice. The Seller has caused the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000;
(v) 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;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to 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;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viii) any contract or agreement that relates to Intellectual Property Rights (other than a license granted make available to the Company for commercially available software licensed Buyer a correct and complete copy of each written Contract required to be listed on standard SECTION 4.14 OF THE DISCLOSURE SCHEDULE and a written summary setting forth the material terms with a total replacement cost and conditions of less than $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
each oral Contract, if any, required to be listed on SECTION 4.14 OF THE DISCLOSURE SCHEDULE. With respect to each Contract required to be listed on SECTION 4.14 OF THE DISCLOSURE SCHEDULE: (x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or 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 agreement 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 Contract 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 (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contractbinding, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction Documents. Neither against the Company nor any of the Company Subsidiariesand, nor to the Knowledge of the CompanySeller, any each other party thereto is in material violation accordance with its terms, except as limited by bankruptcy, insolvency, reorganization, moratorium or default under any Material Contract. No benefits under any Material Contract will be increasedsimilar Laws relating to creditors' rights generally, 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 (y) the Company Subsidiariesis not, and and, to the Knowledge of the CompanySeller, each of no other party is in breach or default under, 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 would constitute a material breach or default or permit termination, modification, modification or acceleration, acceleration under the Contract, except for such breaches or events which would not have a Material ContractsAdverse Effect and (z) no party has repudiated any provision of the Contract except for such repudiation which would not have a Material Adverse Effect.
Appears in 1 contract
Contracts. The (a) Section 2.16(a) of the Company has Previously Disclosed or provided Disclosure Schedule (by hard copy, electronic data room or otherwisewith paragraph references corresponding to those set forth below) to the Investor or its representatives true, correct contains a true and complete copies list of each of the following Contracts or other arrangements (true and complete copies of which or, if none, reasonably complete and accurate written descriptions thereof, together with all amendments and supplements thereto and all waivers of any terms thereof, have been provided to Parent prior to the execution of this Agreement), to which the Company or any Company Subsidiary of its Subsidiaries is a party or by which any of their Assets and Properties is bound (each, a such Contracts or other arrangements being referred to herein as the “Material ContractContracts”):
(iA) all Contracts (excluding Benefit Plans) providing for a commitment of employment or consultant services for a specified or unspecified term; (B) any contract written or agreement relating to indebtedness for borrowed moneyunwritten representations, letters commitments, promises, communications or courses of credit, capital lease obligations, obligations secured by a Lien conduct involving an obligation of the Company or interest rate or currency hedging agreements (including guarantees in respect of any of its Subsidiaries to make payments (with or without notice, passage of time or both) to any Person in connection with, or as a consequence of, the foregoing, but in any event excluding trade payables, securities transactions contemplated hereby; and brokerage (C) all severance agreements arising in the ordinary course or change of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of businesscontrol arrangements;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement all Contracts with any labor union;
(iii) Person containing any contract provision or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease covenant prohibiting 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 with annual rent payments in excess of $500,000;
(v) 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;
(vi) any contract or agreement limiting, in any material respect, limiting the ability of the Company or any of the Company its Subsidiaries to engage in any line business activity or compete with any Person or prohibiting or limiting the ability of business any Person to compete with the Company or to competeany of its Subsidiaries;
(iii) all partnership, whether by restricting territoriesjoint venture, customers stockholders’ or otherwise, or in any other material respect, similar Contracts with any Person;
(viiiv) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration all Contracts relating to Indebtedness in excess an amount of $500,000100,000 or more of the Company on a consolidated basis;
(viiiv) any contract trust indenture, mortgage, promissory note, loan agreement or agreement that relates other Contract for the borrowing of money, any guarantees, currency exchange, commodities or other hedging arrangement or any leasing transaction of the type required to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms be capitalized in accordance with a total replacement cost of less than GAAP which in each case exceeds $500,000)100,000;
(ixvi) any contract or agreement that concerns all Contracts relating to (A) the sale future disposition or acquisition of any material portion Assets and Properties with an aggregate value of the Company’s business$100,000 or more, and (B) any Business Combination;
(xvii) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
all Contracts that (xiA) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or 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 agreement 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 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 Lien, to purchase or sell any Assets and Properties exceeding $25,000, to change the lines of business in which it participates or engages, (B) require the Company or any of its Subsidiaries to ownmaintain specified financial ratios or levels of net worth or other indicia of financial condition, operate, sell, transfer, pledge or otherwise dispose (C) require the Company or any of any material assets its Subsidiaries to maintain insurance in certain amounts or businesswith certain coverages;
(viii) all powers of attorney and comparable delegations of authority; and
(xvix) any material contract or agreement that would require any consent or approval of a counterparty as a result all other Contracts not otherwise required to be disclosed above in Section 2.16(a) of the consummation Disclosure Schedule which are material to the Business or Condition of the transactions contemplated by this Agreement. Company as currently conducted.
(b) Each Material Contract (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and constitutes a legal, valid and binding agreement, enforceable against the Company in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect 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, 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 Subsidiariesterms, and to the Knowledge knowledge of the Company, each of the other parties party thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contractand, and to the Knowledge knowledge of the Company, no event party to such Material Contract is, nor has occurred received notice that it is currently in violation or breach of or default under any such Material Contract, except to the extent it would not have, individually or in the aggregate, a Material Adverse Effect on the Business or Condition of the Company (or with notice or lapse of time or both, would constitute a material be in violation or breach of or default under any such Material Contract, except to the extent it would not have, individually or permit terminationin the aggregate, modification, a Material Adverse Effect on the Business or acceleration, under Condition of the Material ContractsCompany).
Appears in 1 contract
Sources: Merger Agreement (Ndchealth Corp)
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwisea) to the Investor or its representatives true, correct Seller Disclosure Schedule 4.15 contains a true and complete copies of each listing of the following contracts and other agreements with respect to which the Company ownership and operation of the Transferred Assets (each such contract or any Company Subsidiary is a party (each, agreement being referred to herein as a “Material Contract”):
(i) any contract Any water services, exchange agreements or agreement relating to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien gas gathering 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, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of businesstransportation agreement;
(ii) Any agreement (or group of related agreements with the same Person) for the lease of personal property to or from any contract or agreement that constitutes a collective bargaining or other arrangement with any labor unionPerson providing for lease payments in excess of $250,000 per annum;
(iii) any contract Any agreement (or agreement that 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 a “material contract” within the meaning reasonably expected to involve annual consideration in excess of Item 601(b)(10) of Regulation S-K$250,000;
(iv) any lease or Any 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 with annual rent payments in excess of $500,000;
(v) 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;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to 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;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viii) any contract or agreement that relates to Intellectual Property Rights (other than concerning a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperationpartnership, joint venture, shareholders, partnership investment or similar agreement other arrangement (A) involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or 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 agreement 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 conductedTransferred Assets, or (yB) right requiring a Subject Company to invest funds in or make loans to, or purchase any securities of, another Person, venture or other business enterprise relating to the Transferred Assets;
(v) Any agreement (or group of first refusal related agreements with the same Person) with respect to the creation, incurrence, assumption, or right guaranteeing of first offer any indebtedness for borrowed money, or similar right any capitalized lease obligation;
(vi) Any agreement that prohibits or that otherwise materially limits or purports to limit the ability of an owner of the Company Transferred Assets to compete in any material respect in any line of business or with any Person or in any material geographic area during any period of time after the applicable Closing;
(vii) Any agreement by and among the EQT Parties, the Subject Companies or any of their respective Affiliates (other than EQM and its Subsidiaries) to the extent applicable to the Transferred Assets and which individually involves annual revenues or payments in excess of $250,000;
(viii) Any collective bargaining agreement;
(ix) Any lease under which any Subject Company Subsidiaries is the lessor or lessee of real property that provides for an annual base rental to ownor from such Subject Company of more than $250,000;
(x) Any easement agreement, operateright-of-way agreement, selllicense 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 default or termination would reasonably be expected to have a Seller Material Adverse Effect; or
(xiii) Any agreement (or group of related agreements with the same Person) not enumerated in this Section 4.15, transferthe performance of which by any party thereto involves consideration in excess of $250,000.
(b) The EQT Parties have made available to EQM Gathering and EQM a correct and complete copy of each Material Contract.
(i) Each Material Contract is legal, pledge valid and binding on and enforceable against Rice Midstream or otherwise dispose the applicable Subject Company, as applicable, and to the EQT Parties’ Knowledge, against the other parties thereto, and is in full force and effect; (ii) none of Rice Midstream or such Subject Company, as applicable, is in breach or default, and no event has occurred which with notice or lapse of time would constitute a breach or default by Rice Midstream or such Subject Company, as applicable, or permit termination, modification or acceleration under any Material Contract; (iii) to the Knowledge of the EQT Parties, no other party to any of the Material Contracts 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 permit termination, modification or acceleration under any Material Contract, other than in accordance with its terms, nor has any other party repudiated any provision of any material assets or businessMaterial Contract; and
and (xviv) any material contract or agreement that would require any consent or approval of a counterparty as a result of following the consummation of the transactions contemplated by this Agreement. Each , each Material Contract (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, valid and binding and in full force and effect in all material respects following the consummation on identical terms.
(d) Except as set forth on Seller Disclosure Schedule 4.15, none of the transactions contemplated by the Transaction Documents. Neither the Company nor Rice Midstream or any of the Company Subsidiaries, nor to the Knowledge of the Subject Company, as applicable, has given to or received from any other party thereto is in material 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. No benefits under 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 that continues 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 Material Contractsunresolved.
Appears in 1 contract
Sources: Contribution and Sale Agreement (EQT Midstream Partners, LP)
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwisea) to the Investor or its representatives true, correct Schedule 4.9 contains a complete and complete copies accurate list of each of the following to which the Company or any Company Subsidiary is a party (each, a “Material Contract”):Contracts:
(i) any contract agreements 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 instruments imposing an Encumbrance on any of the foregoingAssets, but in any event other than those constituting Permitted Encumbrances;
(ii) Contracts relating to indebtedness, liability for borrowed money or the deferred purchase price of property (excluding trade payables, securities transactions and brokerage agreements arising payables in the ordinary course of business, intercompany ) or any guarantee or other contingent liability in respect of any indebtedness and immaterial leases or obligation of any Person (other than the endorsement of negotiable instruments for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued collection in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union);
(iii) except with respect to Loans made in the ordinary course of the Company's mortgage banking business, Loans or advances to, or investments in, any contract Person, any Contracts relating to the making of any such loans, advances or agreement that is investments or any Contracts involving a “material contract” within the meaning sharing of Item 601(b)(10) of Regulation S-Kprofits;
(iv) Contracts that contain restrictions with respect to payment of dividends or any lease other distribution in respect of the capital stock of the Company or any Subsidiary;
(v) any letters of credit or similar arrangements relating to the Company or any Subsidiary;
(vi) any employment agreements with any employee of the Company or any Subsidiary or other person on a full-time or consulting basis providing for an annual compensation in excess of $50,000 or providing for the payment of any cash or other compensation upon the sale of the Company or any Subsidiary;
(vii) any management, consulting or advisory agreements, or severance plans or arrangements for any present or former employee of the Company or any Subsidiary;
(viii) any non-disclosure agreements and non-compete agreements binding present and former employees of the Company or any Subsidiary;
(ix) any agreement under which the Company or any of the Company Subsidiaries Subsidiary is lessee of, of or holds or operates, operates any real property owned by or any other Person with personal property for which the annual rent payments in excess of rental exceeds $500,00025,000;
(vx) any lease or agreement under which the Company or any of the Company Subsidiaries Subsidiary is lessor of, of or permits any Person third party to hold or operateoperate any property, real or personal, for which the annual rental exceeds $25,000;
(xi) any property owned agreement or controlled by group of related agreements between the Company or any Subsidiary and the same party for the sale or purchase of products or services under which the undelivered balance of such products and services has a price in excess of $50,000, except for Loans in the ordinary course of the Company SubsidiariesCompany's mortgage banking business;
(vixii) any contract other agreement or group of related agreements between the Company or any Subsidiary and the same party continuing over a period of more than six months from the date or dates thereof, not terminable by it on 30 days' or less notice without penalty and involving more than $50,000;
(xiii) any agreement limitingrelating to the acquisition or divestiture of the capital stock or equity securities, in assets or business of any material respectPerson, the ability Company or any Subsidiary involving consideration in excess of $50,000 or pursuant to which the Company or any Subsidiary has any liability, contingent or otherwise;
(xiv) any powers of attorney granted by or on behalf of the Company or any of the Company Subsidiaries to 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;
Subsidiary (vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viii) any contract or agreement that relates to Intellectual Property Rights (other than a license including those granted to customs brokers) and other agency agreements but excluding powers of attorney granted to Investors, warehouse lenders and custodians in the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion ordinary course of the Company’s 's mortgage banking business;
(xxv) any allianceagreement, cooperationother than agreements entered into in the ordinary course of the Company's mortgage banking business, joint venturewhich prevents the Company or any Subsidiary from disclosing confidential information or which prohibits the Company or any Subsidiary from freely engaging in business anywhere in the world;
(xvi) any sales distribution agreements, shareholders, partnership or similar agreement involving a sharing of profits or losses franchise agreements and advertising agreements relating to the Company or any Company Subsidiary;
(xixvii) any contract warranty, guaranty or agreement involving annual payments in excess of $500,000 that cannot be cancelled other similar undertaking with respect to a contractual performance extended by the Company or a Company Subsidiary without penalty on not more any Subsidiary, other than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or 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 the Company's mortgage banking business;
(xivxviii) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation pursuant to which purports to limit or restrict in any respect the ability of the Company or any Company Subsidiary has agreed to solicit customers defend, indemnify or hold harmless any other Person other than in the manner in which, or the localities in which, all or any portion ordinary course of the business of the Company or the Company Subsidiaries is or can be conducted, or Company's mortgage banking business;
(yxix) right of first refusal or right of first offer or similar right or that limits or purports any agreement pursuant to limit the ability of which the Company or any Subsidiary has agreed to settle any liability for Taxes;
(xx) any agreement pursuant to which the Company or any Subsidiary has agreed to shift or allocate the liability of the Company Subsidiaries to ownCompany, operate, sell, transfer, pledge any Subsidiary or otherwise dispose of any material assets or businessother Person for Taxes; and
(xvxxi) any other agreement material contract to the Company or agreement any Subsidiary.
(b) The Company has delivered to the Purchaser a true and complete copy of each written arrangement listed on Schedule 4.9, as amended to date. With respect to each written arrangement so listed in clauses (i) through (v) below, to the extent that would require any consent or approval of it could reasonably be expected to have a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract (A) is legal, valid and binding Adverse Effect on the Company and the Company Subsidiaries which are taken as a party to such contract, whole: (Bi) the written arrangement is in full force and effect and is valid and enforceable in accordance with its terms terms; (ii) neither the Company nor any Subsidiary is in breach or default thereof; (iii) no event has occurred which, with notice, or lapse of time or both, would constitute a breach or default thereof by the Company or any Subsidiary or constitute a breach or default thereof by any other party thereto (iv) no event has occurred that would permit termination, modification, or acceleration thereof by any other party thereto; and (Cv) will continue to be legal, valid, binding, enforceable, neither the Company nor any Subsidiary has repudiated and no other party thereto has repudiated or acted in full force and effect in a manner inconsistent with any provision thereof. The Contracts constitute all material respects following the consummation of the transactions contemplated by contracts necessary to conduct all operations of the Transaction DocumentsCompany as they are currently conducted except where the lack of the Contracts would not be reasonably expected to have Material Adverse Effect on the Company and the Subsidiaries taken as a whole. Neither the Company nor any of the Company SubsidiariesSubsidiary is a party to any verbal contract, nor agreement, or other arrangement which, if reduced to the Knowledge of the Companywritten form, any other party thereto is in material violation or default under any Material Contract. No benefits under any Material Contract will would 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, listed on Schedule 4.9 under the Material Contractsterms of this Section 4.9.
Appears in 1 contract
Sources: Merger Agreement (American Home Mortgage Holdings Inc)
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwisea) to the Investor or its representatives true, correct and complete copies of each Item 4.16 of the Company Letter lists the following Contracts to which which, as of the date hereof, the Company or any Company Subsidiary of its Subsidiaries is a party (each, a “Material Contract”):
or by which any them is bound: (i) 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, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement Contract that is filed or would be required to be filed by the Company as a “material contract” within the meaning of contract pursuant to Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under which the Company or any K of the Company Subsidiaries is lessee ofSEC (other than compensatory Contracts with, or holds or operateswhich includes as participants, any property owned by any other Person with annual rent payments in excess of $500,000;
(v) any lease current or agreement under which the Company former director 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;
(vi) any contract or agreement limiting, in any material respect, the ability officer of the Company or any of its Subsidiaries); (ii) any indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage or other evidence of Indebtedness, providing for borrowings (constituting Indebtedness) in excess of $25 million; (iii) any material Contract relating to the creation, formation, operation, management or control of any Specified Alliance; (iv) any Contract which contains provisions that prohibit the Company or any of its Subsidiaries to engage from competing in any line of business or to competebusiness, whether by restricting territorieswhich provisions would, customers or otherwise, or in any other material respect, with any Person;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration Effective Time, in excess of $500,000;
(viii) any contract or agreement that relates addition to Intellectual Property Rights applying to the Company and its Subsidiaries, also purport to apply to the Parent and its Affiliates (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000and its Subsidiaries);
; (ixv) any contract Contract that prohibits the payment of dividends or agreement that concerns the sale or acquisition of any material portion distributions in respect of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants capital stock of the Company or any of its Subsidiaries, prohibits the Company Subsidiaries other than, with respect to non-executive employees and consultants, in pledging of the ordinary course of business;
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability capital stock 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 prohibits the Company Subsidiaries is or can be conducted, or (y) right issuance of first refusal or right of first offer or similar right or that limits or purports to limit the ability guarantees by any Subsidiary of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or businessCompany; and
(xvvi) any material contract Material Revenue Producing Contract and (vii) any Material Revenue Producing Contract with respect to which the entry into this Agreement 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, would result in a breach of, or constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination amendment, cancellation or acceleration) under, or result in a loss of a benefit under, such Material Revenue Producing Contract. Each such Contract described in clauses (i) through (vii) that is not terminable by the other party or parties thereto on 180 days’ or less notice is referred to herein as a “Material Contract.”
(b) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Company, (i) neither the Company nor any Subsidiary has received any written notice or claim of default under any Material Contract or any written notice of an intention to terminate, not renew or challenge the validity or enforceability of any Material Contract, (Aii) is legalno event has occurred that, valid and binding on with or without notice or lapse of time or both, would result in a breach or a default by the Company and the Company or any of its Subsidiaries which are a party to such contractunder any Material Contract, (Biii) each of the Material Contracts is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legaland, valid, binding, enforceable, and in full force and effect 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, any other party thereto is in material violation or default under any Material Contract. No benefits under any Material Contract will be increasedthe valid, binding 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 enforceable obligation of the other parties theretothereto (except that such enforceability (A) may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting or relating to the enforcement of creditors’ rights generally and (B) is subject to general principles of equity (regardless of whether considered in a proceeding in equity or at law)) and (iv) the Company and its Subsidiaries have performed in all material respects all respective material obligations required to be performed by them under each Material Contract, and to the Knowledge of date hereof under the Company, no event has occurred that Material Contracts and are not (with notice or without the lapse of time would constitute a or the giving of notice, or both) in material breach or default or permit termination, modification, or acceleration, under the Material Contractsthereunder.
Appears in 1 contract
Sources: Merger Agreement (First Data Corp)
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwise) to the Investor or its representatives true, correct Disclosure Schedule contains a true and complete copies of each list of the following written contracts, agreements, leases and other instruments to which any of the Company or any Company Subsidiary Companies is a party (each, a “Material ContractContracts”):
(i) Contracts for the employment of any contract employee or agreement relating engagement of any contractor or consultant of the Companies that (A) provides for base compensation in excess of $150,000, (B) provides for the payment and/or accelerated vesting of any compensation or benefits upon the consummation of the transactions contemplated by this Agreement, or (C) cannot be terminated at-will at any time for any reason or no reason without penalty or liability;
(ii) contracts with any former (to indebtedness the extent of any ongoing Liability) or current employee, officer, director or other individual service provider of the Business and that (A) provides for borrowed money(1) total annual compensation that could exceed $100,000, letters (2) any severance benefits, or (3) any payments or obligations that could be triggered solely by the consummation of creditthe transactions contemplated by this Agreement; or (B) cannot be terminated upon thirty (30) days’ notice or less without any Liability or obligation;
(iii) leases or subleases, capital either as lessee or sublessee, lessor or sublessor, of personal property or intangibles, where the lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements sublease provides for an annual rent in excess of $150,000 and has an unexpired term as of the Closing Date in excess of one (including guarantees in respect 1) year;
(iv) contracts that materially limit the ability of any of the foregoing, but Companies to compete in any event excluding trade payablesmaterial respect with any Person generally, securities transactions and brokerage engage in any line of business or conduct of business in any geographic area;
(v) loan or credit agreements, pledge agreements, notes, security agreements, mortgages, debentures, indentures, factoring agreements arising in the ordinary course or letters of businesscredit;
(vi) contracts with any Significant Customer or Significant Supplier, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued than purchase orders entered into in the ordinary course of business;
(iivii) any contract contracts (other than purchase orders entered into in the ordinary course of business) involving performance of services or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning delivery of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under which the Company or goods by any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person with annual rent payments Companies of a stated amount in excess of $500,000;
(v) 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;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to 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;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000400,000;
(viii) any contract or agreement that relates to Intellectual Property Rights contracts (other than purchase orders entered into in the ordinary course of business) that involves performance of services or delivery of goods to any of the Companies of a license granted to stated amount in excess of $400,000 during any twelve (12)-month period after the Company for commercially available software licensed on standard terms with a total replacement cost date of less than $500,000)this Agreement;
(ix) any contract other agreement which provides for the receipt or agreement expenditure by the Companies of more than $200,000 in any single year and has an unexpired term of more than one year that concerns cannot be terminated without penalty, except purchase orders for the purchase or sale of goods or acquisition rendering of any material portion services in the ordinary course of the Company’s business;.
(x) contracts involving capital expenditures after the date of this Agreement requiring the Seller to pay in excess of $200,000 in any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiarycalendar year;
(xi) any contract partnership agreements or agreement joint venture agreements involving annual payments in excess expenditures or receipts of greater than $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice100,000;
(xii) any material hedgecontract that is a settlement, collar, option, forward purchasing, swap, derivative conciliation or similar agreement, understanding agreement (including with any Governmental Authority) or undertakingpursuant to which the Companies will have any material outstanding obligation after the date of this Agreement;
(xiii) any contract Labor Agreement;
(xiv) contracts relating to the acquisition or agreement disposition of any business (whether by merger, sale of stock, sale of assets or otherwise) within the past three (3) years or under which, after the Closing, the Companies will have an obligation with respect to the employment any “earn out” or service contingent payment obligation or other contingent obligation or deferred purchase price payment obligation, indemnification obligation or non-competition provision;
(xv) any power of any current attorney executed by or former directors, officers, employees or consultants on behalf of the Company or any of the Company Subsidiaries Companies;
(xvi) contracts containing minimum requirements, “take-or-pay” provisions, exclusivity, “most favored nation,” rebate, volume-based discount or other thanpricing clauses or other similar contractual language;
(xvii) contracts relating to the creation, with respect incurrence, assumption or guarantee of any indebtedness or placing a lien on any of the assets of any of the Companies;
(xviii) any (w) Contract under which any of the Companies have granted a license or right to any other Person to use any Owned Intellectual Property (other than non-executive employees and consultants, exclusive licenses granted to customers in the ordinary course of business;
(xiv) any contract or agreement containing any ); (x) Contract under which any of the Companies is granted a license or right to use any Intellectual Property (other than (A) inbound non-competition exclusive licenses of Intellectual Property involving an annual payment by the Seller of $175,000 or less or (B) non-exclusive dealing obligations end-user licenses of generally commercially-available Software with a total replacement cost and with annual subscription or other obligation which purports to limit maintenance fees of less than $175,000) that is used solely for its internal business purposes and is not re-distributed with, bundled, integrated, or restrict in any respect the ability of the Company or incorporated into 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 Software; (y) right of first refusal or right of first offer or similar right or that limits or purports to limit IP Settlement Agreements; and (z) Contract under which material Intellectual Property was developed by a third party for the ability benefit of the Company Companies (other than Contracts on the Companies’ form agreement made available to Purchaser). All Material Contracts are binding upon the Companies and the other parties thereto. None of the Companies 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 (A) is legal, valid and binding on the Company and the Company Subsidiaries which other parties thereto are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect 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, 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 Material Contracts.
Appears in 1 contract
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwiseSection 3.2(l) to of the Investor or its representatives true, correct and complete copies of Disclosure Schedule lists each of the following Contracts to which the Company or any Company Subsidiary Opto-tech Entity is a party (eachcollectively, a the “Material ContractContracts”):
): (ii)any Contract (or group of related Contracts) any contract for the lease of personal property from or to third parties with annual payments exceeding EUR50,000 or with a term exceeding one year; (ii)any Contract concerning a partnership, distributorship, agency, marketing agreement relating to indebtedness for borrowed moneyor joint venture; (iii)any Contract (or group of related Contracts) under which such Opto-tech Entity has (A) created, letters of creditincurred, capital lease obligationsassumed, obligations secured by or guaranteed (or may create, incur, assume, or guarantee) Indebtedness, or (B) imposed (or may impose) a Lien or interest rate or currency hedging agreements (including guarantees in respect of on any of such entity’s assets, tangible or intangible; (iv)all Contracts under which the foregoingwork by such Opto-tech Entity is not yet complete, but in or under which such Opto-tech Entity otherwise has ongoing obligations; (v)any Contract with any event excluding trade payablesAffiliates of such Opto-tech Entity, securities transactions and brokerage agreements arising in the ordinary course Sellers, or any of businesstheir respective Affiliates or any of their respective managers, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business;
directors or officers; (ii) any contract or agreement that constitutes a vi)any collective bargaining agreement, labor contract, or other arrangement agreement or understanding with any labor organization or labor union;
; (iiivii)any agreement with any officer, manager, individual employee, consultant, independent contractor or other Person that (A) describes any contract terms or conditions of employment or engagement of such Person, including but not limited to any employment agreement, retention agreement, severance agreement, compensation agreement, change of control agreement, consulting agreement, and independent contractor agreement, (B) imposes upon any officer, manager, individual employee, consultant, independent contractor or other Person any obligation with respect to the assignment of inventions or the nondisclosure or confidentiality of proprietary or confidential information or trade secrets, or (C) restricts the activities of any officer, manager, individual employee, consultant, independent contractor or other Person during or after his or her employment or engagement by such Opto-tech Entity, including any agreement that restricts any such Person’s ability to compete with any Person, provide services to any Person, solicit any Person’s employees, or solicit any Person’s actual or prospective customers, suppliers, or vendors; (viii)any guaranty of any obligation for borrowed money or otherwise, other than endorsements made for collection in the Ordinary Course of Business, or any agreement or commitment with respect to the lending or investing of funds to or in other Persons; (ix)any Contract or group of related Contracts with the same party (or group of related parties) either (A) requiring payments after the date hereof to or by such Opto-tech Entity of more than EUR50,000 or (B) not terminable by such Opto-tech Entity on sixty (60) days or less notice; (x)any Contract, the benefits of which are contingent or the terms of which are materially altered upon the occurrence of a transaction of the nature contemplated by this Agreement involving such Opto-tech Entity; (xi)any other Contract or group of related Contracts not entered into in the Ordinary Course of Business or the breach, default or termination of which would have a Material Adverse Effect; 16 (xii)any Contract to which such Opto-tech Entity is a “material contract” within party which is capable of being terminated by the meaning other party upon the occurrence of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under which the Company or any a transaction of the Company Subsidiaries is lessee of, or holds or operates, any property owned nature contemplated by any other Person with annual rent payments in excess this Agreement; (xiii)any Contract that restricts the right of $500,000;
(v) 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;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries such Opto-tech Entity 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;
Person or otherwise to freely engage in operations anywhere in the world (vii) including any settlementContract providing for non-solicitation or employees or other business relations, conciliation providing for exclusivity or similar agreementrequirements supply terms or for “most favored nation” pricing or other terms), the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viii) any contract xiv)any Contract regarding confidentiality or agreement that relates nondisclosure; (xv)any Contract related to Intellectual Property Rights (other than a license licenses of generally available, non-customized computer software granted to the Company for commercially available software licensed on standard terms such Opto-tech Entity with a total replacement cost of less than $500,000EUR50,000);
; (ix) xvi)any Contract which involves payment by any contract party of amounts determined by reference to fluctuations in any retail prices or agreement that concerns the sale other index or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course rate of business;
exchange for any currency; (xiv) any contract or agreement containing xvii)any Contract with any (xA) 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 conductedGovernmental Authority, or (yB) right Top Customer or Top Supplier (as such terms are defined below); or (xviii)any Contract which cannot readily be fulfilled or performed by such Opto-tech Entity on time without penalty without excessive or unusual expenditure of first refusal money, effort or right personnel; (xix)any Contract requiring indemnification of first offer another Person; (xx)any Contract which is of a loss-making nature (that is, likely to result in a loss to such Opto-tech Entity) on completion of performance ascertained by reference to gross margin (being sales less attributable labor, materials and overheads in accordance with PCN); and (xxi)any Contract whereby such Opto-tech Entity is obligated to pay royalties or similar right or license fees to another Person; and (xxii)any other Contract that limits or purports is material to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge Business. Each Opto-tech Entity has delivered or otherwise dispose made available to Buyer a correct and complete copy 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 each written Material Contract (including all amendments thereto). With respect to each written Material Contract: (A) the Material Contract is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect, subject to the application of any bankruptcy or creditor’s rights Laws; (B) the Material Contract will continue to be legal, valid, binding, and enforceable and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiariesagainst such Opto-tech Entity (and, nor to the Knowledge of Company, the other parties thereto) on identical terms immediately after the Closing Date; (C) neither any Opto-tech Entity nor, to the Knowledge of Company, any other party thereto to the Material Contract, is in material violation breach or default under (including, with respect to any Material Contract. No benefits under any Material Contract will be increasedexpress or implied warranty), 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 or both would constitute a material breach or default or permit termination, modification, or acceleration, under the Material Contract; and (D) to the Knowledge of Company, no party has repudiated any provision of any such Material Contract. Section 3.2(l) of the Disclosure Schedule sets forth a description of all of the material terms of each oral Contract which, if reduced to written form, would be required to be listed in the Disclosure Schedule under the terms of this Section 3.2(l), and all such oral Contracts shall be deemed to be included in Material Contracts. Correct and complete copies of the general forms of purchase or (for goods and services) sale used by each Opto-tech Entity have been delivered to Buyer, along with a description of any variances therefrom or modifications thereto.
Appears in 1 contract
Sources: Quota Purchase Agreement
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwisea) Schedule 3.6(a) of the Disclosure Schedules sets forth a complete and accurate list of the Contracts material to the Investor Business or its representatives truethe Purchased Assets, correct and complete copies of each of the following to which the Company or any Company Subsidiary is a party (eachincluding without limitation, a “Material Contract”):
Contracts: (i) with any contract Affiliate or agreement relating current or former officer, director, stockholder or Affiliate of Seller; (ii) pursuant to indebtedness which Seller or its Subsidiary is required to purchase or sell a stated portion of its requirements or output from or to another party; (iii) involving consideration in excess of $25,000 annually or $50,000 in the aggregate over the term of the Contract; (iv) 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 any event excluding trade payables, securities transactions and brokerage agreements arising assets of Seller or its Subsidiary other than in the ordinary course of businessbusiness or for the grant to any Person of any preferential rights to purchase any of its assets; (v) for joint ventures, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipmentstrategic alliances or partnerships; (vi) in excess containing covenants of $500,000, except for those issued in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under which the Company Seller or any of the Company its Subsidiaries is lessee of, or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000;
(v) any lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person not to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to engage compete in any line of business or to compete, whether by restricting territories, customers or otherwise, or with any Person in any other material respect, with any Persongeographical area;
(vii) relating to the acquisition by Seller or its Subsidiary of any settlementoperating business or the capital stock of any other Person; (viii) under which Seller or its Subsidiary has made advances or loans to any other Person in excess of $5,000; (ix) providing for severance, conciliation retention, change in control or similar agreementpayments in excess of $20,000; (x) for the employment of any individual on a full-time, part-time or consulting or other basis providing annual compensation in excess of $75,000; (xi) for the performance provision of which will involve payment after the Closing Date of goods or services involving consideration in excess of $500,000;
(viii) any contract 100,000 annually or agreement that relates to Intellectual Property Rights (other than a license granted to $250,000 in the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000);
(ix) any contract or agreement that concerns aggregate over the sale or acquisition of any material portion term of the Company’s business;
Contract; (xxii) that require any alliancepayments by way of royalties, cooperation, joint venture, shareholders, partnership fees or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments otherwise in excess of $500,000 that cannot be cancelled by the Company 50,000 annually to any owner, licensor of, or a Company Subsidiary without penalty on not more than 90 days’ notice;
other claimant to any Intellectual Property (xiiexcluding (A) any material hedge, collar, option, forward purchasing, swap, derivative licenses to customers or similar agreement, understanding contractors or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, from suppliers in the ordinary course of business;
business and (B) licenses to commercially available off-the- shelf software); (xiii) outstanding agreements of guaranty, surety or indemnification, direct or indirect, by Seller or its Subsidiary in excess of $10,000; (xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict involve the expenditure of more than $250,000 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 businessaggregate; and
and (xv) any material contract with an officer, director, shareholder or agreement that would require any consent or approval Affiliate of a counterparty as a result Seller.
(b) Other than with respect to the cure obligations under Section 365 of the consummation of the transactions contemplated by this Agreement. Each Material Contract (A) Bankruptcy Code, each Assumed Contract, is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiariesand constitutes a legal, nor valid, binding agreement, enforceable against Seller or its Affiliates and, to the Knowledge of Seller, each other party thereto, in accordance with its terms. Other than with respect to the Companycure obligations under Section 365 of the Bankruptcy Code, neither Seller nor any Affiliate of Seller nor, to the Knowledge of Seller, any other party thereto to each such contract is in material violation or material breach of, or 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 Documentsunder, 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 has there occurred an event has occurred or condition that with notice or lapse the passage of time or giving of notice (or both) would constitute a material breach or default or permit terminationunder, modification, or acceleration, under the Material Contracts.or
Appears in 1 contract
Sources: Asset Purchase Agreement
Contracts. The Company has Previously Disclosed or provided Disclosure Schedule lists all written and oral contracts and other written agreements, arrangements and understandings (by hard copy, electronic data room or otherwise"CONTRACTS") to the Investor or its representatives true, correct and complete copies of each which any of the following to which the Company or any Company Subsidiary and its Subsidiaries is a party (each, a “Material Contract”):or is bound:
(i) any contract or agreement relating to indebtedness for borrowed money, letters where the performance 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, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) which will involve consideration in excess of $500,000, except for those issued in the ordinary course of business100,000;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under which restrict the Company or any of the Company its Subsidiaries is lessee of, or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000;
(v) 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;
(vi) any contract or agreement limiting, from engaging in any material respect, line of business in any geographic area or competing with any person or entity or restricting the ability of the Company or any of the Company its Subsidiaries to engage in any line from acquiring equity securities of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(iii) which are employment, engagement, consulting or severance contracts applicable to any employee, officer, director, consultant, stockholder, distributor, dealer or sales representative of any of the Company or a Subsidiary;
(iv) which are acquisition, disposition, joint venture or similar agreements (each, an "ACQUISITION OR DIVESTITURE AGREEMENT");
(v) which is an evidence of any Indebtedness;
(vi) which is an intercompany agreement, including without limitation, any tax sharing, expense sharing, employee leasing or other similar agreement;
(vii) which is a contract with any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000Governmental Authority;
(viii) any contract or agreement that relates which is a lease pursuant to Intellectual Property Rights (other than a license granted to which the Company for commercially available software licensed on standard terms with a total replacement cost leases (as lessor or lessee) any personal property in excess of less than $500,000)100,000;
(ix) which is an agreement, arrangement or program pursuant to which the Company has offered or made available to its customers (including its distributors) any contract volume discount, rebate or agreement that concerns the sale advertising or acquisition of any material portion of the Company’s businesspromotional credit or allowance;
(x) any alliancewhich is an agreement with a customer which provides for a rebate, cooperation, joint venture, shareholders, partnership lowest price guarantee or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiaryvolume discount;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by which is a guaranty under which the Company is a guarantor or a Company Subsidiary without penalty on not more than 90 days’ noticeotherwise responsible for any liability or obligation (including Indebtedness) of any other Person;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertakingwhich is an outstanding power of attorney;
(xiii) any contract which is an other agreement or agreement with respect commitment which is material to the employment or service of any current or former directors, officers, employees or 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;its business or operations; or
(xiv) which is a management, administrative services or data processing Contract (the Contracts in clause (i)-(xiv), each a "KCI CONTRACT" and collectively, the "KCI CONTRACTS"). Except as set forth in the Company Disclosure Schedule, there are no continuing or contingent payment obligations under any contract Acquisition or agreement containing Divestiture Agreement, and there are no outstanding indemnity claims under any (x) non-competition Acquisition or exclusive dealing obligations or other obligation which purports Divestiture Agreement. The Company has made available to limit or restrict in any respect the ability Purchaser a correct and complete copy of each of the Company or any Company Subsidiary KCI Contracts. With respect 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 each KCI Contract: (A) the KCI Contract is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following effect, subject to the consummation laws of the transactions contemplated by the Transaction Documents. Neither the Company nor any general application relating to bankruptcy, insolvency and relief of debtors and rules of law governing specific performance, injunctive relief or other equitable remedies; and (B) none of the Company Subsidiaries, nor to the Knowledge of the Company, 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 Contractits Subsidiaries is, and to the Knowledge of the Company, no other party is, in breach or default, and no event has occurred that which with notice or lapse of time would constitute a material breach or default default. Neither the Company nor any Subsidiary has received or permit termination, modification, given any written notice of an intention to cancel or acceleration, under the Material Contractsterminate any KCI Contract.
Appears in 1 contract
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwisea) to Section 3.12 of the Investor or its representatives Seller Disclosure Schedules contains a true, correct accurate and complete copies list of each Contract (other than purchase orders, statements of work and invoices) (together with all amendments and supplements thereto) in effect as of the date hereof to which the Company, any Company Subsidiary or any of their respective assets is a party to or bound by and which falls within any of the following to which the Company or any Company Subsidiary is a party categories (each, a “Company Material Contract”):
(i) any contract Contract that (A) limits or agreement restricts in any material respect the Company or any Company Subsidiary from competing, engaging in any line of business, developing, marketing or distributing products or services or in any geographic area or with any Person or that would otherwise materially limit the freedom of the Company from engaging in any material line of business after the Closing, (B) grants any right of first refusal, right of first offer, or similar preferential right with respect to the Equity Interests or any material assets, rights, or properties of the Company or the Company Subsidiaries, or (C) is with one of the twenty (20) largest customers of the Company Group (determined on the basis of consolidated revenues received by the Company Group in the fiscal year ended December 31, 2020) and which obligates the Company or any Company Subsidiary to conduct business on an exclusive basis or that contains a “most favored nation” or similar covenant, except with respect to (A) through (C) above, for any such Contract that may be cancelled without penalty by the Company or any other Group Company upon notice of ninety (90) days or less;
(ii) any Contract (excluding purchase orders, statements of work or similar ancillary documents) with the twenty (20) largest customers of the Company Group (determined on the basis of consolidated revenues received by the Company Group in the fiscal year ended December 31, 2020) and (A) pursuant to which any Group Company received aggregate payments in excess of $5,000,000 during the fiscal year ended December 31, 2020, or (B) that the Company reasonably anticipates will, in accordance with its terms, involve aggregate payments to any Group Company in excess of $5,000,000 within the twelve (12) month period from and after the date of this Agreement;
(iii) any master purchase, supply or service Contract (for the avoidance of doubt, excluding purchase orders, statements of work and standard confidentiality agreements) with the twenty (20) largest suppliers to or subcontractors for the Company or the Company Subsidiaries (determined on the basis of consolidated purchase orders issued to, or purchase commitments binding on, the Company Group in the fiscal year ended December 31, 2020) and (A) pursuant to which the Company made aggregate payments in excess of $3,000,000 during the fiscal year ended December 31, 2020, or (B) that the Company reasonably anticipates will, in accordance with its terms, involve aggregate payments by the Company in excess of $3,000,000 within the twelve (12) month period from and after the date of this Agreement;
(iv) any Contract (i) relating to indebtedness Indebtedness (such term being used in this clause (iv) without giving effect to the proviso at the end of the definition of “Funded Debt” in excess of $500,000 individually or $1,000,000 in the aggregate or (ii) constituting a guarantee by the Company or the Company Subsidiaries in support of any such Indebtedness, performance or payment obligation of (x) Seller or any of its Affiliates (other than a Group Company) or (y) any Group Company, except, in each case of clauses (i) and (ii), for borrowed money, letters of credit, capital lease obligations, obligations secured by Contracts relating to Indebtedness solely between the Company and a Lien wholly owned Company Subsidiary or interest rate between wholly owned Company Subsidiaries;
(v) any Contract pursuant to which (i) the Company or currency hedging agreements any Company Subsidiary is a licensee or has been granted license or other rights (including guarantees in respect rights granted on a service basis) of any Intellectual Property Rights that are owned by any other Person and material to the Business (other than “off-the-shelf” or “shrink-wrap” licenses for commercially available software or standard commercial service offerings that are not negotiated, and generally available on standard terms with annual license fees of less than $500,000 per software title), (ii) the foregoing, but in Company or any event excluding trade payables, securities transactions and brokerage agreements arising Company Subsidiary is a licensor or has granted to any other Person any license or other rights under any material Company Owned Intellectual Property (other than non-exclusive licenses granted in the ordinary course of business), intercompany indebtedness and immaterial leases (iii) any Intellectual Property Right that is or has been developed by or for, or assigned to, any Group Company, or assigned by any Group Company to any other Person in the last twelve (12) months or makes any such future commitments and is material to the Business (the agreements listed in subsections (i) through (iii) above, the “Company IPR Agreements”);
(vi) any partnership, joint venture, limited liability company agreement, or other Contract relating to the formation, creation, operation, management, or control of any material joint venture or similar co-investment arrangement between the Company or any Company Subsidiary, on the one hand, and a third party, on the other hand (for telephonesthe avoidance of doubt, copy machines, facsimile machines and other office equipmentthan in respect of an Affiliate Transaction or Interest);
(vii) any Contract for employment with any Business Employee or engagement with any independent contractor providing for annual base compensation in excess of $500,000, except for those issued in the ordinary course of business300,000;
(iiviii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor unionLabor Agreement;
(iiiix) any contract Contract in respect of an Affiliate Transaction or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-KInterest;
(ivx) any lease agreement relating to any interest rate, foreign exchange, derivatives or agreement under hedging transactions;
(xi) settlement, conciliation, or similar Contracts with respect to any Action pursuant to which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000;
(v) any lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person will be required to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to 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;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(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 $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments pay an amount in excess of $500,000 that cannot be cancelled by or satisfy material non-monetary obligations after the Company or a Company Subsidiary without penalty on not more than 90 days’ noticedate of this Agreement;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative “take or similar agreement, understanding pay” agreements involving obligations of the Company or undertaking;its Subsidiaries in excess of $100,000; and
(xiii) any contract Contract relating to (A) the acquisition (by merger, consolidation, purchase of stock or agreement with respect to the employment assets, or service of any current or former directors, officers, employees or consultants of otherwise) by the Company or any Company Subsidiary of any Person, a material portion of the assets of any Person, or any business, division or product line or (B) the divestiture or disposition by the Company Subsidiaries or any Company Subsidiary of a material portion of its properties or assets, or any of its Equity Securities, in each case of clauses (A) and (B), pursuant to which, after the date hereof, the Company Group will have a material obligation;
(xiv) any Contract pursuant to which the Company Group is obligated to make future capital expenditures in excess of $500,000 individually, or in excess of $1,000,000 in the aggregate;
(xv) any Contract that obligates the Company or any Company Subsidiary to make a loan or capital contribution to, or investment in, any Person (other than, with respect than any other Group Company and other than advances to non-executive employees and consultants, in the ordinary course of business), in each case, (A) in excess of $100,000 on an annual basis or $250,000 in the aggregate and (B) under which the Business or any Group Company has any outstanding obligation to make such loan or capital contribution;
(xivxvi) any contract Contract under which: (A) the Company or agreement containing any (x) non-competition Company Subsidiary is the lessor of, or exclusive dealing obligations makes available for use by any third party, any equipment or other obligation which purports to limit tangible property owned by the Company Group (other than IT Assets) or restrict (B) the Company or any Company Subsidiary is the lessee of, or is provided the use of, any equipment or other tangible property owned by any third party (other than IT Assets), in each case of clauses (A) and (B) for outstanding payment obligations as of the date hereof of more than $500,000 in the aggregate;
(xvii) any material distribution, dealer, representative, sales agency or similar Contract;
(xviii) any Contract with any Governmental Entity providing for annual payments paid or received by the Company Group during the 12-month period ended December 31, 2020 in excess of $300,000;
(xix) any Shared Contract; and
(xx) all agreements that prohibit the payment of distributions in respect of the ability Equity Interests or the capital stock of any Company Subsidiary, prohibit the pledging of the Equity Interests or the capital stock of the Company or any Company Subsidiary to solicit customers or prohibit the manner in which, or issuance of guarantees by the localities in which, all Company or any portion of Company Subsidiary, in each case that will not be terminated at or prior to the business Closing. True, correct and complete copies of each Company Material Contract, including all amendments and supplements thereto have been made available by Seller to Purchaser prior to the date of this Agreement.
(b) Except as would not, individually or in the aggregate, have a Company Material Adverse Effect: (i) subject to the Enforceability Exceptions, each Company Material Contract is a valid and binding obligation of the Company or the Company Subsidiaries is or can be conductedSubsidiary party thereto and, or (y) right to the Knowledge of first refusal or right of first offer or similar right or that limits or purports to limit the ability Seller, of the Company other party or any of the Company Subsidiaries to ownparties thereto, 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 (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue against the Company or the Company Subsidiary party thereto and, to be legalthe Knowledge of Seller, valid, binding, enforceablethe other party or parties thereto, and is in full force and effect effect, in all material respects following each case, subject to the consummation of the transactions contemplated by the Transaction Documents. Neither Enforceability Exceptions; (ii) the Company nor any of the and/or each Company Subsidiaries, nor to the Knowledge of the Company, any other Subsidiary 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 has performed in all material respects all material obligations required to be performed by them it under each Company Material ContractContract and is not otherwise in default or breach thereof and, and to the Knowledge of Seller, each other party to each Company Material Contract has performed all obligations required to be performed by it under such Company Material Contract; (iii) as of the Companydate of this Agreement, neither the Company nor any Company Subsidiary has received or delivered written notice of any actual or alleged violation or default under or the intention to terminate (nor, to the Knowledge of Seller, does there exist any condition which upon the passage of time or the giving of notice or both would cause a violation of or default under or give rise to a right to terminate) any Company Material Contract; and (iv) no event has occurred that which (with or without notice or lapse of time or both) would constitute a material breach or default or permit termination, modification, or acceleration, under the any Company Material ContractsContract.
Appears in 1 contract
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwise) With respect to the Investor or its representatives true, correct and complete copies of each of the following to which the Company or any Company Subsidiary is a party (each, a “Material Contract”):
(icontracts listed in Section 4(m) 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, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) 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 Person with annual rent payments in excess of $500,000;
(v) 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;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to 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;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(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 $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or 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 agreement 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 Disclosure Schedule: (A) the agreement is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following as to the consummation Company and APS-Cal, as the case may be; (B) none of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company SubsidiariesCompany, nor APS-Cal or to the Knowledge of the CompanySeller Entities, any other party thereto is in material violation breach or default under any Material Contract. No benefits under any Material Contract will be increaseddefault, 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 would constitute a material breach or default default, or permit termination, modification, or acceleration, under the agreement; and (C) neither APS-Cal nor the Company has, and to the Knowledge of the Seller Entities, no other party has repudiated any material provision of the agreement and (D) correct and complete copies of the agreement have been provided or made available to the Buyer. Section 4(m) of the Disclosure Schedule lists all of the contracts to which the Company or APS-Cal is a party of the type described below:
(i) any agreement (or group of related agreements) for the lease of real or personal property to or from any Person providing for lease payments in excess of $50,000 per annum;
(ii) any agreement (or group of related agreements) 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 (1) year or involve consideration in excess of $50,000;
(iii) any agreement concerning a partnership or joint venture;
(iv) any agreement (or group of related agreements) under which the Company has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, in excess of $50,000 or under which it has imposed a Security Interest on any of its assets, tangible or intangible;
(v) any agreement concerning confidentiality not entered into in the Ordinary Course of Business or any agreement which involves any prohibition on the Company conducting business in a geographical area or performing any service or restricts the Company’s ability to operate in the Ordinary Course of Business or grants to any party thereto other than the Company or APS-Cal the exclusive right to perform any service;
(vi) any agreement with a Seller Entity or another Affiliate of the Company;
(vii) 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;
(viii) any collective bargaining agreement or agreement with a labor union or other association representing or purporting to represent a group of employees;
(ix) any agreement for the employment of any individual on a full-time, part-time, consulting, or other basis providing annual compensation in excess of $100,000 or providing material severance benefits;
(x) any agreement with any officer or director of the Company or APS-Cal, including without limitation, any agreement under which it has advanced or loaned any amount to any of its directors, officers, and employees outside the Ordinary Course of Business;
(xi) any agreement under which the consequences of a default or termination could have a Material ContractsAdverse Effect on the Company;
(xii) any other agreement (or group of related agreements) the performance of which involves consideration in excess of $50,000 in the aggregate;
(xiii) Any agreement requiring capital expenditures or the disposal or acquisition of assets in excess of $50,000;
(xiv) any agreement pursuant to which the Company or APS-Cal grants the right to act as its agent to a Person that is among the Company’s largest forty (40) agents having (5) five or more locations (calculated by the volume of transactions conducted in the twelve (12) months ended September 30, 2003);
(xv) Any agreement regarding payments to any governmental entities, other than filing, registration, or similar fees made in the Ordinary Course of Business; or
(xvi) Any agreement not entered into in the Ordinary Course of Business or which is material to the conduct of the business of the Company or APS-Cal or to the financial condition or results of operation of the Company or APS-Cal and not otherwise listed in subparagraphs (i) through (xv) above.
Appears in 1 contract
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwisea) to the Investor or its representatives true, correct Schedule 4.12 contains a true and complete copies list of each of the following Contracts to which the any Acquired Company or any Company Subsidiary is a party (each, a or that comprise the Barge Terminal Assets) as of the Execution Date (the “Material ContractContracts”):
(i) any contract Contract for the storage of liquid petroleum products that provides for the future payment by or agreement relating to indebtedness for borrowed money, letters any Acquired Company 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, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of more than $500,000, except for those issued in the ordinary course of business100,000 per annum;
(ii) any contract Contract for the supply of goods or agreement services to any Acquired Company that constitutes a collective bargaining provides for future payments by or other arrangement with to any labor unionAcquired Company of more than $100,000 per annum;
(iii) any contract Contract or agreement group of related Contracts with the same party for the sale or purchase of any goods or services (excluding the Contracts disclosed pursuant to the preceding clauses (i) and (ii)) that is a “material contract” within provides for the meaning future payment by or to any Acquired Company of Item 601(b)(10) of Regulation S-Kmore than $100,000 per annum;
(iv) any lease Contract that grants to any Person a right to purchase any assets, business or agreement under which the Company or capital stock of any of the Company Subsidiaries is lessee of, or holds or operates, Person (including any property owned by any other Person with annual rent payments in excess of $500,000Acquired Company);
(v) any lease Contract that imposes exclusivity obligations upon any Acquired Company (or agreement under which the Company operations or any of the Company Subsidiaries is lessor of, activities thereof) or permits any Person contains covenants that limit or purport to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, limit the ability of the any Acquired Company or any of the Company Subsidiaries to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or compete with any Person in any other material respect, with geographic area;
(vi) any Personcommitment to make any capital expenditure or to purchase a capital asset in excess of $100,000 individually or related commitments of $100,000 in the aggregate;
(vii) any settlement, conciliation Contract entered into or similar agreement, assumed by any Acquired Company that is an indemnity agreement or which has as its principal purpose the performance indemnification of which will involve payment after the Closing Date of consideration in excess of $500,000any Person;
(viii) any contract or agreement that Contract which relates to Intellectual Property Rights (other than Indebtedness under which any Acquired Company has outstanding obligations or under which a license granted Lien on any Acquired Companies’ properties or assets is imposed, including any Contract which relates to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000)Credit Support Obligation;
(ix) any contract or agreement that concerns the sale or acquisition of Contract granting any material portion of the Company’s businesscustomer a right to “most favored nation” pricing terms;
(x) any alliance, cooperation, joint venture, shareholders, partnership Contract for the sale or similar agreement involving a sharing lease of profits or losses relating to the Company or any Company SubsidiaryReal Property;
(xi) any contract Contract under which an Acquired Company has, or agreement involving annual payments may have, as of or at any time following the Closing, 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 excess of $500,000 that cannot be cancelled by connection with this Agreement or the Company or a Company Subsidiary without penalty on not more than 90 days’ noticetransactions contemplated hereby;
(xii) any material hedgeContract concerning or consisting of a partnership, collarjoint venture, option, forward purchasing, swap, derivative joint operating or similar agreement, understanding agreement or undertakingarrangement;
(xiii) any contract Contract relating to futures, ▇▇▇▇▇▇, swaps, collars, puts, calls, floors, caps, options or agreement with respect other Contracts that are intended to benefit from, relate to or reduce or eliminate the employment or service risk of any current or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, fluctuations in the ordinary course price of business;commodities, including hydrocarbons (collectively, “Hedging Agreements”); and
(xiv) any contract Contract under which any Acquired Company has directly or agreement containing indirectly guaranteed any Liabilities or obligations of a third party.
(xb) non-competition True and complete copies of all Material Contracts, have been made available to Buyer, in each case, as amended or exclusive dealing obligations or other obligation which purports to limit or restrict otherwise modified and in any respect the ability effect.
(c) Each 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 Material Contracts 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 (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following (other than those Material Contracts that will or would terminate in accordance with their terms prior to the consummation Closing, in each case as set forth on Schedule 4.12) and constitutes a legal, valid and binding obligation of the transactions contemplated by the Transaction Documents. Neither the applicable Acquired Company nor any of the Company Subsidiariesand, nor to the Knowledge of Seller, of any counterparties to such Material Contracts. Neither Acquired Company nor, to the Knowledge of Seller, any counterparty thereto, is in default or breach or violation of, or has repudiated any material provision of, or received written notice of any of the foregoing regarding, any such Material Contract. There exists no event, occurrence, condition or act that, with the giving of notice, the lapse of time or the happening of any further event or condition, would cause a material default by any Acquired Company, or to Seller’s Knowledge, any other party thereto is in material violation or default thereto, 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 Material Contracts.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Arc Logistics Partners LP)
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwise) to the Investor or its representatives true, correct and complete copies of each Section 4.12 of the Disclosure Schedule lists the following contracts obligations, understandings, commitments, leases, licenses, purchase orders, bids or other agreements, whether written or oral (each, a “Contract”) to which the Company or any Company Subsidiary one of its Subsidiaries is a party (eachparty, a “Material Contract”):
(i) any contract or agreement relating and 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, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under which the Company or any one of its Subsidiaries has continuing obligations as of June 1, 2007:
(a) each Contract in respect of the Company Subsidiaries is lessee ofsale of products or the performance of services, or holds for the purchase of inventories, equipment, raw materials, supplies, services or operates, any property owned by any other Person with annual rent utilities that (i) involves anticipated additional payments in excess of $500,000;
(v) 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 receipts by the Company or any of its Subsidiaries of $250,000 or more through the remaining term of such Contract and (ii) is not terminable by the Company Subsidiariesor any of its Subsidiaries at any time upon notice of 90 days or less;
(vib) any contract 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, joint venture, joint operating or similar Contract;
(d) any Contract for Indebtedness;
(e) any Contract with any Company Shareholder or an Affiliate of any Company Shareholder;
(f) excluding any Employee Benefit Plans, any employment agreement, deferred compensation, severance or other plan or arrangement for the benefit of its directors, officers and employees or any consulting agreement limitingwhich provides for annual payments by the Company or any Subsidiary in excess of $100,000;
(g) any collective bargaining agreement;
(h) any power of attorney (except for powers of attorney entered into in the Ordinary Course of Business for a limited nature and time);
(i) any Contract entered into by the Company or any Subsidiary in settlement of any lawsuit or other claim;
(j) any Contract under which the Company has advanced or loaned money to directors, officers, employees or any other Person;
(k) 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 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 sale of the business (or any material respectportion 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 or any Subsidiary, including, without limitation, contracts containing “most favored nation” provisions;
(n) each Contract relating to 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, and all other agreements affecting the ability of the Company or any of the Company its Subsidiaries to engage in use or disclose any line of business the Company’s or to competeits Subsidiaries’ Intellectual Property; provided that, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(vii) any settlement, conciliation or similar agreement, licenses for “off the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viii) any contract or agreement 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 $500,000100,000 in the aggregate 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);; and
(ixo) any contract or agreement that concerns Contract restricting the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants right of the Company or any of its Subsidiaries to do business anywhere in the world. The Company Subsidiaries other than, with has delivered or made 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. With respect to non-executive employees and consultants, in the ordinary course of business;
each such Contract: (xivi) any contract or agreement 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 (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction Documents. Neither neither the Company nor any of the Company Subsidiaries, nor to the Knowledge of the Company, any other party thereto its Subsidiaries is in material violation 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 Material Contractsagreement; (ii) no party has repudiated any provision of the 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. The Except as set forth in the SEC Reports or the Memorandum, neither the Company has Previously Disclosed nor any of its Subsidiaries is party or provided subject to, or bound by: (i) any agreements, contracts or commitments that call for prospective fixed and/or contingent payments or expenditures by hard copy, 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 or any Company Subsidiary of its Subsidiaries of more than $100,000, or which is a party (each, a “Material Contract”):
(i) 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 otherwise material and brokerage agreements arising not entered into in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business;
; (ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) 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 Person with annual rent involving payments in excess of $500,000;
(v) any lease or agreement under 100,000, 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; (viiii) any contract contract, including any distribution agreements, containing covenants directly or agreement limiting, in any material respect, explicitly limiting the ability freedom of the Company or any of the Company its Subsidiaries to engage 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; (viiv) any settlementemployment contracts, conciliation non-competition agreements, invention assignments, severance or similar agreementother agreements with officers, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(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 $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officersemployees, employees stockholders or consultants of the Company or any of the Company its Subsidiaries other than, or Persons related to or affiliated with respect to non-executive employees and consultants, in the ordinary course of business;
such Persons; (xivvi) any contract stock redemption or agreement containing any (x) non-competition or exclusive dealing obligations purchase agreements or other obligation which purports agreements affecting or relating 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 capital stock of the Company or any of the Company Subsidiaries to ownits Subsidiaries, operateincluding, sellwithout limitation, transfer, pledge or otherwise dispose of any material assets or business; and
(xv) agreement with 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 (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor 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, nor as applicable, to the Knowledge of the Company, any other party thereto is in material violation meet its obligations under such agreement; 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 Material Contracts.19
Appears in 1 contract
Sources: Securities Purchase Agreement
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwise) to Section 2.13 of the Investor or its representatives true, correct Disclosure Schedule sets forth a true and complete copies list of each of the following Contracts to which the Company or any Company Subsidiary of its Subsidiaries is a party or by which its assets are bound (each, a such Contracts that are required to be listed in Section 2.13 of the Disclosure Schedule are herein referred to as the “Material ContractContracts”):
(ia) any contract Contract (or agreement relating to indebtedness group of related Contracts) (other than purchase and sale orders entered into in the Ordinary Course) for borrowed money, letters the distribution or sale of credit, capital lease obligations, obligations secured by a Lien the Company’s or interest rate or currency hedging agreements (including guarantees in respect of any of its Subsidiaries’ products or services or for the foregoingperformance of services by the Company or any of its Subsidiaries to any Person whose purchases constitute five percent (5%) or more of the Company’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, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business2018;
(iib) any contract Contract (or agreement that constitutes 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;
(iiic) any contract Contract (or agreement that is a “material contract” within the meaning group of Item 601(b)(10related Contracts) of Regulation S-K;
(iv) any 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 Person with annual rent payments in excess of $500,000its Subsidiaries’ assets, tangible or intangible;
(vd) any lease 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;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company its Subsidiaries to 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;
(viie) any settlement, conciliation Contract (or similar agreement, the performance group of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viiirelated Contracts) with 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 $500,000);
(ix) any contract or agreement 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;
(xf) any allianceContract (or group of related Contracts) relating to the disposition or acquisition of the assets of, cooperationor any equity interest in, joint venture, shareholders, partnership any business enterprise or similar agreement involving a sharing of profits or losses relating property which relates to the Company or any Company Subsidiary;
(xi) of its Subsidiaries, or any contract merger or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement business combination with respect to the employment Company or service any of any current its Subsidiaries, entered into since March 31, 2015, other than the purchase and sale of inventory in the Ordinary Course or former directors, officers, employees where there is no continuing material Liability or consultants obligation of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of businessits Subsidiaries;
(xivg) any contract Contract (or agreement containing group of related Contracts) for the employment of any (x) non-competition or exclusive dealing obligations officer, individual employee or other obligation which purports to limit Person on a full-time, part-time, consulting or restrict other basis that provides for annual compensation in excess of $150,000 or providing any respect the ability termination benefits or payments in excess of the Company $50,000;
(h) any Contract (or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, all or any portion group of the business of the Company or the Company Subsidiaries is or can be conducted, or (yrelated Contracts) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability governing Indebtedness of the Company or any of its Subsidiaries or the grant of any Encumbrance on any material property or material asset of the Company or any Subsidiary;
(i) any Contract (or group of related Contracts) restricting the transfer of Capital Stock of the Company or any of its Subsidiaries, obligating the Company or any of its Subsidiaries to ownrepurchase shares of its Capital Stock, operate, sell, transfer, pledge or otherwise dispose relating to the voting of Capital Stock or the election of directors of any material assets of the Company or businessany 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
(xvr) any material contract or agreement that would require commitment to do any consent or approval of a counterparty as a result of the consummation 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, including any and all amendments thereto, and a written summary setting forth the transactions contemplated by this Agreementmaterial terms of each oral Material Contract. Each All Material Contract (A) is legalContracts are valid, valid and binding on binding, enforceable against the Company or any of its Subsidiaries, as applicable, and, to the Company’s Knowledge, each other party thereto, and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable effect, in accordance with its terms and (C) 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 a proceeding at law or in all material respects following the consummation equity). Each of the transactions contemplated by Company and each of its Subsidiaries is not, and to the Transaction DocumentsCompany’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, the effect of which, individually or in the aggregate, would reasonably be expected to result in material Liability to the Company. Neither the Company nor any of the Company Subsidiaries, nor its Subsidiaries has received written notice that any party to the Knowledge of the Company, 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 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 Material Contracts.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Forrester Research, Inc.)
Contracts. The Company has Previously Disclosed or provided (by hard copya) Except as set forth on Schedule 5.15, electronic data room or otherwise) to the Investor or its representatives true, correct and complete copies of each of the following to which neither the Company nor any of its Subsidiaries is party or any Company Subsidiary is a party (eachsubject to, a “Material Contract”):or bound by:
(i) any contract agreements, contracts or agreement 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 US$100,000, but in any event excluding trade payables, securities transactions or which is otherwise material and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued not entered into in the ordinary course of business;
(ii) any contract contract, lease or agreement that constitutes a collective bargaining involving payments in excess of US$100,000, which is not cancelable by the Company or other arrangement with any labor unionof its Subsidiaries, as applicable, without penalty on not less than sixty (60) days notice;
(iii) any contract contract, including any distribution agreements, containing covenants directly or agreement that is a “material contract” within 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;
(iv) any lease indenture, mortgage, promissory note, loan agreement, guaranty or other agreement or commitment for the borrowing of money or pledging or granting a 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, any property owned by any other Person with annual rent payments in excess of $500,000;
(v) any lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits has granted any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to 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;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viii) any contract or agreement that relates to Intellectual Property Rights (other than a license granted to the Company registration rights for commercially available software licensed on standard terms with a total replacement cost of less than $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertakingsecurities;
(xiii) any contract contract, obligation or agreement with respect to the employment arrangement which is of an unusual or service of any current abnormal nature, or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in outside the ordinary course of business;
(xiv) any contract or agreement 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 its Subsidiaries;
(xiv) any contract, obligation or arrangement which 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; andnot on arm’s length commercial terms;
(xv) any material contract contract, obligation or agreement that would require arrangement which gives any consent party an option to acquire or approval 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 counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract (A) is legal, valid and binding on loss to the Company on completion or 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 its Subsidiaries are bound which are a party to meet the criteria set forth in Section 5.15(a) (such contractagreements, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legalcontracts or instruments, validcollectively, binding, enforceable, and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction Documents“Material Contracts”). Neither the Company nor any of the Company Subsidiariesits Subsidiaries has entered into any oral contracts which, nor to the Knowledge of the Companyif written, any other party thereto is in material violation or 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 Material ContractsClosing Date.
Appears in 1 contract
Sources: Securities Purchase Agreement (You on Demand Holdings, Inc.)
Contracts. The (a) Schedule 2.16(a) of the Company has Previously Disclosed or provided Disclosure Schedule (by hard copy, electronic data room or otherwisewith paragraph references corresponding to those set forth below) to the Investor or its representatives true, correct contains a true and complete copies 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 the Company or any Company Subsidiary LLLP is a party (each, a “Material Contract”):or by which any of the Assets are bound:
(i) any contract all Contracts (excluding Benefit Plans) providing for a commitment of employment or agreement 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 businessBusiness, 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 $500,000, except for those issued in the ordinary course of businessaggregate;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement all Contracts with any labor unionPerson containing any provision or covenant prohibiting or materially limiting the ability of Company or LLLP to engage in any business activity or compete with any Person or prohibiting or limiting the ability of any Person to compete with Company or LLLP;
(iii) any contract all partnership, joint venture, shareholders’ or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) 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 Person with annual rent payments in excess of $500,000;
(v) 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;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, similar Contracts with any Person;
(iv) all Contracts with distributors, dealers, manufacturer’s representatives, sales agencies or franchises with whom Company deals;
(v) all Contracts relating to Indebtedness of Company;
(vi) all Contracts (other than this Agreement) providing for (A) the future disposition or acquisition of any assets or properties, including the Assets, other than dispositions or acquisitions of inventory in the Ordinary Course of Business, and (B) any merger or other business combination;
(vii) all Contracts between Company, on the one hand, and any settlementAffiliate of Company, conciliation or similar agreement, on the performance of which will involve payment after the Closing Date of consideration in excess of $500,000other hand;
(viii) any contract or agreement that relates to Intellectual Property Rights all Contracts (other than a license granted this Agreement) that limit or contain restrictions on the ability of Company to incur Indebtedness or incur or suffer to exist any Lien, or to purchase or sell any Assets or to change the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000)Business;
(ix) any contract all collective bargaining or agreement that concerns similar union contracts covering an Employee or the sale or acquisition of any material portion of the Company’s business;Dania ▇▇▇ ▇▇▇▇ players; and
(x) any allianceall other Contracts that (A) involve the future payment or potential future payment, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating pursuant to the terms of any such Contract, by or to Company or any Company Subsidiary;
of more than One Hundred Thousand Dollars (xi$100,000) any contract or agreement involving annual payments in excess of $500,000 that annually and (B) cannot be cancelled by the Company terminated within thirty (30) days after giving notice of termination without resulting in any material cost or a Company Subsidiary without penalty on not more than 90 days’ notice;to Company.
(xiib) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiiiEach Contract required to be disclosed in Schedule 2.16(a) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or 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 agreement 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 (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) Disclosure Schedule is in full force and effect and constitutes a legal, valid and binding agreement, enforceable in accordance with its terms and (C) 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 in all material respects 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 Knowledge of the Company, any other party thereto is in material violation or 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 Material Contracts.
Appears in 1 contract
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwisea) to EXHIBIT 3.15 lists all the Investor or its representatives true, correct Contracts and complete copies of each of the following arrangements to which the Company or any Company Subsidiary is a party (eachor by which it is bound, a “Material Contract”):or to which any of its assets or properties is subject, such as, by way of illustration, and not limitation,
(i) any contract or collective bargaining agreement relating to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by and a Lien or interest rate or currency hedging agreements (including guarantees in respect of any summary of the foregoing, but in collective bargaining unit's position with respect to any event excluding trade payables, securities transactions and brokerage agreements arising in such agreement currently the ordinary course subject of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of businessnegotiations;
(ii) any contract Contract or agreement that constitutes a collective bargaining or other arrangement of any kind with any labor union;
(iii) any contract employee, officer or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) 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 Person with annual rent payments in excess of $500,000;
(v) 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;
(vi) any contract or agreement limiting, in any material respect, the ability director of the Company or any of the Company Subsidiaries to engage in any line respective Affiliates of business or to compete, whether by restricting territories, customers or otherwisesuch individuals, or any Contract, or other arrangement of any kind with either the Seller or any Affiliate of the Seller other than any such Contract or arrangement described in SECTION 3.18(A);
(iii) any Contract or arrangement with a sales representative, manufacturer's representative, distributor, dealer, broker, sales agency, advertising agency or other material respectPerson engaged in sales, with distributing or promotional activities, or any Contract to act as one of the foregoing on behalf of any Person;
(iv) any Contract or arrangement of any nature which involves the payment or receipt of cash or other property, an unperformed commitment, or goods or services:
(A) having a value in excess of $100.00, if such Contract or arrangement is not for the purchase by the Company of raw materials, or
(B) having a value in excess of $100.00, if such Contract or arrangement is for the purchase by the Company of raw materials;
(v) any Contract or arrangement pursuant to which the Company has made or will make loans or advances, or has or will have incurred debts or become a guarantor or surety or pledged its credit on or otherwise become responsible with respect to any undertaking of another (except for the negotiation or collection of negotiable instruments in transactions in the ordinary course of business);
(vi) any indenture, credit agreement, loan agreement, note, mortgage, security agreement, lease of real property or personal property, loan commitment or other Contract or arrangement relating to the borrowing of funds, an extension of credit or financing;
(vii) any settlementContract or arrangement involving a partnership, conciliation joint venture or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000other cooperative undertaking;
(viii) any contract Contract or agreement that relates to Intellectual Property Rights (other than a license granted arrangement involving any restrictions with respect to the Company for commercially available software licensed on standard terms with a total replacement cost geographical area of less than $500,000)operations or scope or type of business of the Company;
(ix) any contract power of attorney or agency agreement that concerns or arrangement with any Person pursuant to which such Person is granted the sale authority to act for or acquisition of any material portion on behalf of the Company’s business, or the Company is granted the authority to act for or on behalf of any Person;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing Contract for which the full performance thereof may extend beyond 60 days from the date of profits or losses relating to the Company or any Company Subsidiarythis Agreement;
(xi) any contract Contract not made in the ordinary course of business which is to be performed in whole or agreement involving annual payments in excess part at or after the date of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ noticethis Agreement;
(xii) any material hedgeContract, collarwhether or not fully performed, optionrelating to any acquisition or disposition of the Company or any predecessor in interest of the Company, forward purchasingor any acquisition or disposition of any subsidiary, swapdivision, derivative line of business, or similar agreement, understanding or undertaking;real property; and
(xiii) any contract or agreement with respect Contract not specified above that is material to the employment or service Company.
(b) The Seller has delivered to the Buyer true and complete copies of any current or former directorseach document listed on EXHIBIT 3.15, officersand a written description of each oral arrangement so listed.
(c) Except as disclosed on EXHIBIT 3.15, employees or consultants of all such Contracts and arrangements,
(i) when entered into, were on terms no less favorable to the Company or any of than the Company Subsidiaries other thanterms which could have been obtained at the date thereof from an unrelated third party, with respect to non-executive employees and consultants, in the ordinary course of business;
(xiv) any contract or agreement 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
(xvii) if canceled at 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 (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation of the transactions contemplated time by the Transaction Documents. Neither the other party, would not have a Company nor any of the Company Subsidiaries, nor to the Knowledge of the Company, 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 Material ContractsAdverse Effect.
Appears in 1 contract
Sources: Stock Purchase Agreement (Vacation Ownership Marketing Inc)
Contracts. The (a) Section 3.12(a) of the Company has Previously Disclosed or provided Disclosure Schedule lists (by hard copy, electronic data room or otherwiseunder the appropriate subsection) to the Investor or its representatives true, correct and complete copies of each of the following written or oral contracts and agreements to which the Company or any Company Subsidiary is a party as of the date of this Agreement (each, a “such contracts and agreements being the "Material Contract”Contracts"):
(i) each contract and agreement for the purchase or lease of personal property with any supplier or for the furnishing of services to the Company with payments greater than $25,000 per year;
(ii) all broker, exclusive dealing or exclusivity, distributor, dealer, manufacturer's representative, franchise, agency, sales promotion, market research, marketing, consulting and advertising contracts and agreements to which the Company is a party or any other contract or agreement that compensates any person based on any sales by the Company;
(iii) all leases and subleases of real property;
(iv) all contracts and agreements relating to indebtedness for borrowed moneyother than trade indebtedness of the Company, letters including any contracts and agreements in which the Company is a guarantor of creditindebtedness;
(v) all contracts and agreements with any Governmental Entity to which the Company is a party;
(vi) all contracts and agreements that limit or purport to limit the ability of the Company to compete in any line of business or with any person or in any geographic area or during any period of time;
(vii) reserved;
(viii) all contracts and agreements between or among the Company and any stockholder of the Company or any affiliate of such person;
(ix) all contracts and agreements relating to the voting and any rights or obligations of a stockholder of the Company;
(x) all contracts to manufacture for, capital lease obligationssupply to or distribute to any third party any products or components that contemplate an exchange of consideration with an aggregate value greater than $25,000;
(xi) all contracts regarding the acquisition, obligations secured by a Lien issuance or interest rate or currency hedging agreements (including guarantees in respect transfer of any securities and each contract affecting or dealing with any securities of the foregoingCompany, but in including, without limitation, any event excluding trade payablesrestricted stock agreements or escrow agreements;
(xii) all contracts providing for indemnification of any officer, securities transactions director, employee or agent of the Company;
(xiii) all contracts related to or regarding the performance of consulting, advisory or similar services by any third party (other than any such contracts that (i) contemplate an exchange of consideration with an aggregate value less than $1,000 per annum and brokerage agreements arising (ii) where the services performed did not include the development of Company Intellectual Property);
(xiv) all other contracts not otherwise required to be disclosed or specifically excluded from disclosure pursuant to this Section 3.12 that have a term of more than 60 days and that may not be terminated by the Company, without penalty, within 30 days after the delivery of a termination notice by the Company;
(xv) any material agreement not otherwise required to be disclosed or specifically excluded from disclosure pursuant to this Section 3.12 of the Company that is terminable upon or prohibits assignment or a change of ownership or control of the Company;
(xvi) all other contracts and agreements, whether or not made in the ordinary course of business, intercompany that contemplate a future exchange of consideration with an aggregate value greater than $25,000; and
(xvii) any agreement of guarantee, assumption or endorsement of, or any similar commitment with respect to, the obligations, liabilities (whether accrued, absolute, contingent or otherwise) or indebtedness and immaterial leases for telephonesof any person other than software licenses, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued professional services contracts or reseller or distribution agreements entered into in the ordinary course of business;.
(b) Each Material Contract (i) is valid and binding on the Company and, to the knowledge of the Company, on the other parties thereto, and is in full force and effect, and (ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) 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 Person with annual rent payments in excess of $500,000;
(v) 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;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to 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;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(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 $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion knowledge of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or 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 agreement 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 upon consummation of the transactions contemplated by this Agreement. Each Material Contract (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is shall continue in full force and effect and enforceable without penalty or other adverse consequence. The Company is not in accordance with its terms and (C) will continue to be legalbreach or violation of, valid, binding, enforceable, and in full force and effect 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, any other party thereto is in material violation or default under any Material Contract. No benefits under 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 knowledge of the Company, no other party to any Material Contract is in breach or violation thereof or default thereunder.
(c) The Company has delivered or made available to Parent accurate and complete copies of all Material Contracts identified in Section 3.12(a) of the Company Disclosure Schedule, including all amendments thereto. Section 3.12(a) of the Company Disclosure Schedule provides an accurate description of the terms of each Material Contract that is not in written form.
(d) Except as set forth in Section 3.12(d) of the Company Disclosure Schedule, to the Company's knowledge, no event has occurred occurred, and no circumstance or condition exists, that (with or without notice or lapse of time time) will, or would constitute reasonably be expected to, (i) result in a material breach or default or permit termination, modificationviolation of, or accelerationdefault under, any Material Contract, (ii) give any entity the right to declare a default, seek damages or exercise any other remedy under any Material Contract, (iii) give any entity the right to accelerate the maturity or performance of any Material ContractsContract or (iv) give any entity the right to cancel, terminate or modify any Material Contract.
Appears in 1 contract
Contracts. The Company has Previously Disclosed or provided SCHEDULE 3.16 of the Disclosure Schedule contains a list as of the date hereof of all contracts (by hard copy, electronic data room or otherwiseother than purchase orders and sales orders with customers and suppliers of the Companies) to the Investor or its representatives true, correct and complete copies of each which any of the following to which the Company or any Company Subsidiary Companies is a party (each, a “Material Contract”):
or by which any of the Companies or its respective properties is bound which (i) provides for the payment or receipt by the Companies of $100,000 or more in any contract given 12-month period, (ii) prohibits the Companies from engaging in their respective normal businesses in any geographic location or (iii) prohibits the Companies from competing with any person or entity. The contracts listed on SCHEDULE 3.16 of the Disclosure Schedule 41 also include: (i) as of the date hereof, any lease (whether of real or personal property) providing for payment or receipt by any of the Companies of $100,000 or more in any given 12-month period; (ii) as of the date hereof, any agreement for the purchase of equipment or other capital assets that provides for payments by any of the Companies of $100,000 or more in any given 12-month period; (iii) as of the date hereof, any agreement providing for the sale by any of the Companies of equipment or other capital assets that provides for annual payments to any of the Companies of $100,000 or more in any given 12-month period; (iv) any partnership, joint venture or other similar agreement or arrangement to which any of the Companies is a party, other than joint product development arrangements with customers; (v) as of the date hereof, any agreement other than the Transaction Documents and the D&F Transaction Agreements relating to the acquisition or disposition of any business by any of the Companies (whether by merger, sale of stock, sale of assets or otherwise); (vi) as of the date hereof, any agreement relating to indebtedness for borrowed money, letters money or the deferred purchase price of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of property to which any of the foregoingCompanies is a party (in either case, but in whether incurred, assumed, guaranteed or secured by any event excluding trade payablesasset), securities transactions except any such agreement with an aggregate outstanding principal amount not exceeding $100,000; and brokerage agreements arising in (vii) any agreement or transaction between any of the ordinary course Companies and any of businessthe Owners, intercompany indebtedness and immaterial leases for telephonesF&F, copy machinesHNBV, facsimile machines and HFI, HCI or any of their respective Affiliates (other office equipmentthan the other Companies) involving a matter in excess of $500,000, except for those issued in the ordinary course of business;
(ii) any contract 100,000 or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) 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 Person with annual rent payments in excess of $500,000;
(v) 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 cannot be terminated by the Company Interested Persons as of or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to 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;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration with thirty (30) days or less prior notice without termination payment or penalty. To the Owners' Knowledge, except as otherwise provided in excess of $500,000;
(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 $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion SCHEDULE 3.16 of the Company’s business;
(x) any allianceDisclosure Schedule and subject to normal expiration or termination as provided in such contracts, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any each contract or agreement involving annual payments disclosed in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants SCHEDULE 3.16 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 agreement 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 Disclosure Schedule 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 (A) is legal, valid and binding on agreement of the Company respective Company, and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legaleffect, valid, binding, enforceable, and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor except as any of the Company Subsidiaries, nor to foregoing may be limited by the Knowledge bankruptcy or insolvency of the Company, any other party thereto or the application by a court of appropriate jurisdiction of any equitable principles. Except as provided in SCHEDULE 3.16 of the Disclosure Schedule, none of the Companies is in default or breach in any material violation or default respect under any Material Contract. No benefits under any Material Contract will be increased, and no vesting the terms of any benefits under any Material Contract will be accelerated, by the occurrence contract described on such SCHEDULE 3.16. True and complete copies of any all contracts listed on SCHEDULE 3.16 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 Schedule have been made available to the Knowledge of the Company, each of the other parties theretoInterested Persons, have performed except as set forth in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge SCHEDULE 3.16 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 Material ContractsDisclosure Schedule.
Appears in 1 contract
Sources: Agreement (Hercules Inc)
Contracts. The Company has Previously Disclosed or provided (by hard copy, 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 or any Company Subsidiary is a party (each, a “Material Contract”):
(i) The ▇▇▇▇▇▇ Disclosure Letter sets out a list of all Contracts that are material to the business, operations, results of operations, or financial condition of ▇▇▇▇▇▇ and its subsidiaries considered as a whole (the "MATERIAL CONTRACTS"), comprising the following types of material Contracts, agreements or understandings:
(A) any contract 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 money (including guarantees in respect any guarantee of or obligation to guarantee the indebtedness for borrowed money of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and Person other office equipmentthan a subsidiary) having an outstanding principal amount in excess of $500,000, except and, for those issued in each such Contract or agreement, the ordinary course aggregate principal amount outstanding as of businessthe date of this Agreement;
(iiB) any contract Contract or agreement that constitutes relating to a collective bargaining Lien imposed on any material asset or other arrangement with any labor unionproperty of ▇▇▇▇▇▇ or a subsidiary;
(iiiC) any contract currency exchange, interest rate exchange, commodity exchange or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-Ksimilar Contract or agreement;
(ivD) any lease Contract or agreement under which with any supplier, distributor or customer for the Company furnishing of services or purchase or sale of goods, equipment, inventory or other assets to or by ▇▇▇▇▇▇ or any subsidiary requiring payment of or receipt over the remaining life of such Contract or agreement of more than $1,000,000;
(E) any manufacturing Contract or original equipment manufacturing Contract or agreement requiring payment of or receipt over the remaining life of such Contract or agreement of more than $1,000,000;
(F) any Intellectual Property Contract or licence, excluding standard, off-the-shelf computer software licences;
(G) any Contract or agreement in connection with acquisitions, dispositions or the purchase or sale of shares or assets (other than in the Ordinary Course of Business) completed within three years of the date of this Agreement, including any Contract or other agreement entered into in connection with such purchase or sale Contract with continuing rights flowing to, or continuing obligations of, ▇▇▇▇▇▇ or any of the Company Subsidiaries is lessee of, its subsidiaries (including ongoing payments or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000;
(v) 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;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to 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;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(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 $500,000royalties and ongoing indemnification obligations);
(ixH) any contract partnership, joint venture or similar agreement that concerns the sale or acquisition of any material portion of the Company’s businessarrangement;
(xI) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract Contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or 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 agreement 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 subsidiary to compete with any Person or in any line of business or in any geographic area or during any period of time;
(J) any Contract or agreement (other than dealer, reseller or distributor agreements) that creates or imposes any exclusivity right or obligation with respect to ▇▇▇▇▇▇ or any of its subsidiaries or the Company Subsidiaries other party to own, operate, sell, transfer, pledge such Contract or otherwise dispose of any material assets or businessagreement; and
(xvK) any other Contract to which ▇▇▇▇▇▇ or any subsidiary is a party which is material contract or agreement that would require any consent or approval of a counterparty to ▇▇▇▇▇▇ and its subsidiaries taken as a result whole.
(ii) None of the consummation of the transactions contemplated by this Agreement. Each Material Contract (A) is legal▇▇▇▇▇▇, valid and binding on the Company and the Company Subsidiaries which are a party to such contractits subsidiaries nor, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect 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 knowledge of the Company▇▇▇▇▇▇, 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, is in default or breach of, in any material respect, nor have performed ▇▇▇▇▇▇ or its subsidiaries received any notice of default or breach in all any material respects all material obligations required to be performed by them under each respect of, or termination under, any Material Contract, and and, to the Knowledge knowledge of the Company▇▇▇▇▇▇, there exists no event has occurred that with state of facts which after notice or lapse of time or both would constitute a material breach or default or permit terminationbreach of such Material Contract, modificationexcept as would not, individually or in the aggregate, have a Material Adverse Effect on ▇▇▇▇▇▇.
(iii) Except as set forth in the ▇▇▇▇▇▇ Disclosure Letter, no Material Contract (a) would be violated, contravened or breached by, or accelerationunder which a default would occur; (b) requires any consent or prior approval be obtained from any Person (including consents relating to the change of control of ▇▇▇▇▇▇); or (c) would terminate; in each case, under upon the Material Contractsexecution of this Agreement or the completion of the transactions provided for herein.
Appears in 1 contract
Contracts. The Company has Previously Disclosed or provided (by hard copya) Except for this Agreement, electronic data room or otherwise) to the Investor or its representatives true, correct and complete copies of each as set forth in Section 4.17 of the following to which Company Disclosure Letter or as filed by the Company or as an exhibit to any of the Company Subsidiary Reports, neither the Company nor any of its Subsidiaries is a party (each, a “Material to or bound by any Contract”)::
(i) 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, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within or would be required to be filed by the meaning of Company with the SEC pursuant to Item 601(b)(10) of Regulation S-KK under the Securities Act;
(ivii) that prohibits or restricts the ability of the Company or its Subsidiaries (or, following the Effective Time, Parent, the Surviving Corporation or its Affiliates) to conduct its business, to engage in any lease business, to solicit any potential business relation, to operate in any geographical area or agreement under to compete with any Person;
(iii) that contains a put, call or similar right pursuant to which the Company or any of its Subsidiaries could be required to purchase or sell, as applicable, any equity interests of any Person or assets;
(iv) that contains any standstill or similar agreement pursuant to which the Company or any of its Subsidiaries has agreed not to acquire assets or securities of another Person;
(v) other than with respect to any partnership that is wholly owned by the Company or any wholly owned Subsidiary of the Company, any partnership, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture or that provides for the formation, creation, operation, management or control of any equity interest in any entity or enterprise;
(vi) relating to or evidencing Indebtedness;
(vii) any Contract under which any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of the Company or its Subsidiaries;
(viii) that grants any rights of first refusal, rights of first offer or other similar rights to any Person;
(ix) (A) for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of any Person for aggregate consideration under such Contract in excess of $250,000, or (B) for any acquisition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of any Person, pursuant to which the Company or any of its Subsidiaries has continuing “earn out” or other similar contingent payment obligations, indemnification obligations or other material obligations outstanding;
(x) (A) is an Inbound IP License (excluding commercially available, unmodified, off the shelf software programs, including Open Source Software, that are licensed by the Company or its Subsidiaries pursuant to “shrink wrap” licenses, the total annual fees associated with which are less than $50,000 (other than Software included in or used to provide or distribute any Customer Offerings), which such licenses shall not be required to be disclosed under this Section 4.17(a)(x) but shall be considered Material Contracts hereunder), (B) is an Outbound IP License (except for any nonexclusive licenses or subscriptions granted to customers of the Company or its Subsidiaries that are entered into in the ordinary course of business consistent with past practice, which such licenses or subscriptions shall not be required to be disclosed under this Section 4.17(a)(x) but shall be considered Material Contracts hereunder if they otherwise qualify as Material Contracts hereunder), or (C) affects the ability of the Company or its Subsidiaries to use, enforce, or disclose any rights in Company Intellectual Property;
(xi) that is a mortgage, pledge, security agreement, deed of trust or other Contract granting a Lien, other than a Permitted Lien, on any property or asset of the Company or any Subsidiary of the Company;
(xii) other than Contracts with a customer, any Contract of the Company or its Subsidiaries that is reasonably expected to provide for payments to the Company or its Subsidiaries in excess of $500,000 in 2016;
(xiii) any Contract with a Material Customer (provided, that the Company shall not be required to list on Section 4.17 of the Company Disclosure Letter, or make available to Parent prior to the date hereof, any Contract with a Material Customer that is not a top ten (10) customer based on gross sales proceeds for the calendar year 2015 and for the three (3) month period ending March 31, 2016; it being understood that notwithstanding this proviso, all Contracts with Material Customers shall be deemed to be Material Contracts for all other purposes of this Agreement);
(xiv) any Contract of the Company or its Subsidiaries that is reasonably expected to provide for payments from the Company or its Subsidiaries to the counterparty thereof in excess of $500,000 in 2016;
(xv) any lease or similar arrangement under which the Company or its Subsidiaries is the lessee of, or holds or operatesuses, any machinery, equipment or other tangible personal property owned by any other Person with third party for an annual rent payments in excess of $500,000;
(vxvi) any lease Contract that obligates the Company or agreement under its Subsidiaries (or following the Merger, Parent, the Surviving Corporation or their Affiliates) to conduct business on an exclusive basis with any third party, that contains “most favored nation” or similar covenants;
(xvii) any Contract pursuant to which the Company or its Subsidiaries agrees to indemnify or hold harmless any of the Company Subsidiaries is lessor of, director or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, the ability executive officer of the Company or any its Subsidiaries (other than the organizational documents of the Company Subsidiaries to 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;its Subsidiaries); and
(viixviii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viii) any contract or agreement that relates to Intellectual Property Rights (other than a license granted to Contracts between the Company for commercially available software licensed or its Subsidiaries, on standard terms with a total replacement cost of less than $500,000);
(ix) the one hand, and any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
or its Subsidiaries’ stockholders or equityholders or their Affiliates (x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to other than the Company or any its Subsidiaries), on the other hand (each such Contract described in clauses (i) through this (xviii), whether or not set forth in the Company Subsidiary;Disclosure Letter or filed with the SEC, is referred to herein as a “Material Contract”).
(xib) any contract or agreement involving annual payments in excess A true and complete copy of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or 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 agreement 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 each Material Contract (Aother than Contracts described in the proviso of Section 4.17(a)(xiii)) has been publicly filed or made available to Parent prior to the date hereof. Each of the Material Contracts is legal, valid and binding on each of the Company and the Company its Subsidiaries which are that is a party to such contractthereto and, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect 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, 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 other party thereto and is in full force and effect and is enforceable against the Company or its Subsidiaries and, to the Knowledge of the Company, each other parties theretoparty thereto (in each case, have performed subject to the Bankruptcy and Equity Exception). To the Knowledge of the Company, no Person is challenging the validity or enforceability of any Material Contract. Except as set forth on Section 4.17(b) of the Company Disclosure Letter, neither the Company nor any of its Subsidiaries is in all material respects all material obligations required to be performed by them breach or default under each any Material Contract, and nor, to the Knowledge of the Company, does any event, fact or circumstance exist that with notice or lapse of time or both would constitute a material breach or default, under any Material Contract by any of the Company or its Subsidiaries that is a party thereto. Except as set forth on Section 4.17(b) of the Company Disclosure Letter, to the Knowledge of the Company, no event has occurred other party to any Material Contract is in material breach or default under any Material Contract, nor does any event, fact or circumstance exist that with notice or lapse of time or both would constitute a material breach or default or permit termination, modificationby any such other party thereunder. The Company has not received any written notice from any Person that such Person intends to terminate, or accelerationnot renew, under the or materially amend, modify or alter, any Material ContractsContract.
Appears in 1 contract
Sources: Merger Agreement (Sciquest Inc)
Contracts. The Company has Previously Disclosed or provided (by hard copya) Except (i) for this Agreement, electronic data room or otherwise(ii) for the Contracts filed as exhibits to the Investor SEC Reports prior to the date hereof, (iii) for the Company Plans and Company Stock Plans or its representatives true, correct and complete copies of each (iv) as set forth in Section 3.8 of the following to which Company Disclosure Schedule, as of the date hereof, neither the Company nor any of its subsidiaries is party to or bound by any Company Subsidiary is a party (each, a “Material Contract”):Contract that:
(i) 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, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under which contains covenants binding upon the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000;
(v) 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;
(vi) any contract or agreement limiting, in any material respect, its Affiliates that materially restrict the ability of the Company or any of the Company Subsidiaries its Affiliates to engage compete in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other geographic area that, in each case, are material respectto the Company and its subsidiaries taken as a whole as of the date of this Agreement, with any Personexcept for leases;
(viiii) any settlementis a material partnership, conciliation joint venture or similar agreementContract that, in each case, is material to the performance Company and its subsidiaries taken as a whole as of which will involve payment after the Closing Date date of consideration in excess of $500,000this Agreement;
(viiiiii) 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 $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of under which the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, its subsidiaries is liable for indebtedness in the ordinary course excess of business$50,000,000;
(xiviv) any contract or agreement 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 expressly limits or purports to limit 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 Subsidiaries 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 ownclause (iii) above, operate, sell, transfer, pledge purchase orders for the purchase of inventory and/or equipment in the ordinary course of business and leases);
(vi) relates to the acquisition or otherwise dispose disposition of any material business (whether by merger, sale of stock, sale of assets or businessotherwise) for consideration in excess of $50,000,000; and
(xvvii) any material contract 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 agreement that would require any consent purchase orders for the purchase of inventory and/or equipment in the ordinary course of business). Each Contract (i) set forth (or approval required to be set forth) in Section 3.8 of a counterparty the Company Disclosure Schedule, (ii) filed as an exhibit to the SEC Reports as a result “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 consummation of the transactions contemplated by this Agreement. Each Company Material Contract (A) Contracts is a legal, valid and binding on obligation of, and enforceable against, the Company and or the Company Subsidiaries which are subsidiary that is a party thereto and, to such contractthe knowledge of the Company, (B) each other party thereto, and is in full force and effect in accordance with its terms, subject to the Bankruptcy and enforceable Equity Exception, except (i) to the extent that any Material Contract expires or terminates in accordance with its terms in the ordinary course of business consistent with past practice, and (Cii) will continue for such failures to be legal, valid, binding, enforceable, valid and binding or to be in full force and effect that do not have and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company.
(c) The Company or its subsidiary that is a party to a Company Material Contract is in compliance with all material respects following terms and requirements of each Company Material Contract, and no event has occurred that, with notice or the consummation passage of time, or both, would constitute a breach or default by the Company or any of its subsidiaries under any such Company Material Contract, and, to the knowledge of the transactions contemplated by Company, no other party to any Company Material Contract is in breach or default (nor has any event occurred which, with notice or the Transaction Documentspassage of time, or both, would constitute such a breach or default) under any Company Material Contract, except in each case where such violation, breach, default or event of default does not have and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. Neither Except as does not have and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company, neither the Company nor any of the Company Subsidiariesnor, nor to the Knowledge knowledge of the Company, any of its subsidiaries has received written notice from any other party thereto is in material violation or default under any Material Contract. No benefits under any to a Company Material Contract will be increased, and no vesting that such other party intends to terminate or renegotiate in any material respects the terms of any benefits under any such Company Material Contract will be accelerated, by (except in accordance with 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 Material Contractsterms thereof).
Appears in 1 contract
Contracts. The Company of the Seller’s Disclosure Schedule contains a complete and accurate list as of the date hereof, and Seller has Previously Disclosed or provided (by hard copy, electronic data room or otherwise) made available to the Investor or its representatives true, correct Buyer true and complete copies of copies, of: each of the following to which the Company or any Company Subsidiary is a party Applicable Contract (each, a “Material Contract”):
(i) 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 other than purchase orders and brokerage agreements arising customer orders in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) that involves performance of services or delivery of goods or materials by any of the Acquired Companies of an amount or value in excess of $500,000, except for those issued 10,000 per year; each Applicable Contract (other than purchase orders and customer orders in the ordinary course of business;
(ii) any contract that involves performance of services or agreement that constitutes a collective bargaining delivery of goods or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under which the Company or materials to any of the Company Subsidiaries is lessee of, Acquired Companies of an amount or holds or operates, any property owned by any other Person with annual rent payments value in excess of $500,000;
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 (v) 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 lease or agreement under which way purport to restrict the Company or business activity of any of the Company Subsidiaries is lessor of, Acquired Companies or permits any Person to hold or operate, any property owned or controlled by limit the Company or freedom of any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries Acquired Companies 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;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration ; each Applicable Contract for capital expenditures in excess of $500,000;
(viii) any contract 20,000; each written warranty, guaranty and 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 $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement undertaking with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company or contractual performance extended by any of the Company Subsidiaries Acquired Companies other than, with respect to non-executive employees and consultants, than in the ordinary course of business;
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict ; and each written amendment, supplement and modification 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 ownforegoing. To the Knowledge of Seller, operate, sell, transfer, pledge (i) each Applicable Contract which involves annual expenditures or otherwise dispose receivables 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 (A) more than $10,000 is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance no default (or event which with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation giving of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Knowledge of the Company, 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 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 Material Contractsany Applicable Contracts with any Person and no Acquired Company has received written demand for such renegotiation.
Appears in 1 contract
Sources: Acquisition Agreement
Contracts. The Company has Previously Disclosed or provided (by hard copySchedule 4.9 sets forth, electronic data room or otherwise) to as of the Investor or its representatives truedate hereof, correct and complete copies a --- --------- ------------ list of each all of the following Contracts to which the Company or any Company Subsidiary of its Subsidiaries is a party or by which it or any material portion of their respective properties or assets are bound or subject (eachtogether with the agreements specifically identified in this Agreement or in the other Schedules hereto, a “Material Contract”):the "Scheduled Contracts"): -------------------
(ia) 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, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines contracts and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement agreements with any labor union;
(iii) , collective bargaining unit or association representing any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) 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 Person with annual rent payments in excess of $500,000;
(v) 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;
(vi) any contract or agreement limiting, in any material respect, the ability employee of the Company or any of its Subsidiaries;
(b) agreements for acquisitions or dispositions (by merger, purchase or sale of stock or otherwise) of material assets entered into in the last two years or pursuant to which the Company Subsidiaries has ongoing obligations (other than acquisitions or dispositions of assets in the ordinary course) with a value in excess of $200,000 (other than the exercise of the option to purchase the property at Egg Harbor Township at a price no greater than $350,000, and on terms reasonably acceptable to the Sellers and the Buyer);
(c) contracts and other agreements relating to indebtedness of the Company or such Subsidiary, guarantees of the indebtedness of any other Person or the deferred purchase price of property where such deferred purchase price is in excess of $200,000;
(d) all partnership, joint venture or other similar Contracts, arrangements or agreements;
(e) any lease, license or other Contract pursuant to which any person has the right to occupy or use any of the Owned Real Property or any portion of the premises that are the subject of the Leases;
(f) each agreement that restricts or purports to restrict the right of the Company or any Subsidiary of the Company to engage in any line of business anywhere in the world or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, compete with any PersonPerson with respect to any business anywhere in the world;
(viig) any settlementall license, conciliation sale, dealer, distribution, commission, marketing, agent, franchise, technical assistance or similar agreementagreements, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(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 commission arrangements with a total replacement cost of less than $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company or any of its Subsidiaries, relating to or providing for the marketing or sale of the products or services of or by the Company Subsidiaries or any Subsidiary of the Company; and
(h) any other than, with respect to non-executive employees and consultants, material contract whether or not made in the ordinary course of business;
(xiv) any contract business which provides for or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports would reasonably be expected to limit or restrict in any respect provide for the ability of payment by 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 after the Company Subsidiaries date of this Agreement of more than $200,000 per annum. Except as disclosed on Schedule 4.9, each Scheduled Contract 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 (A) is ------------ legal, valid and binding on obligation of the Company and or of its Subsidiary, as the Company Subsidiaries which are a case may be, and, to the Knowledge of Sellers, each other party to thereto, enforceable against each such contract, (B) is in full force and effect and enforceable party thereto in accordance with its terms material terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally and (C) will continue subject to be legal, valid, binding, enforceablegeneral principles of equity, and in full force and effect 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 none of the Company, 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 Subsidiary of the transactions contemplated by the Transaction DocumentsCompany nor, 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 CompanySellers, each of the any other parties party 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 is (or with notice or lapse of time or both would constitute be) in default thereunder, except where such default would not have a material breach Material Adverse Effect. As of the date of this Agreement, the Company has not received notice to the effect that any party to a Scheduled Contract intends to terminate or default or permit termination, modification, or acceleration, under not renew the Material Contractssame at its next renewal date. Complete and correct copies of each Scheduled Contract have been previously delivered to Buyer.
Appears in 1 contract
Sources: Share Purchase Agreement (United Rentals North America Inc)
Contracts. The Company has Previously Disclosed or provided (by hard copya) Except as set forth on Schedule 3.11, electronic data room or otherwise) to the Investor or its representatives true, correct and complete copies of each as of the following date of this Agreement, neither the Company nor any of its Subsidiaries is a party to any:
(i) collective bargaining agreement with any labor union;
(ii) currently effective employment, separation pay, change in control, bonus, consulting or similar agreement with any employee or director or any healthcare provider providing for base compensation, severance or change in control payments in excess of $200,000 per annum that is not terminable by the Company or such Subsidiary upon notice of sixty (60) days or less and any currently effective severance agreement with any officer or director that provides for aggregate payments in excess of $200,000;
(iii) agreement under which the Company or one of its Subsidiaries has borrowed any money or issued any note, indenture or other evidence of Indebtedness or guaranteed Indebtedness or liabilities of others (other than intercompany Indebtedness solely among the Company Subsidiary is a party (each, a “Material Contract”):
(i) any contract and its Subsidiaries and guarantees of obligations of the Company 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 foregoingits Subsidiaries, but in any event excluding trade payables, securities transactions and brokerage agreements arising each case in the ordinary course of business);
(iv) any Intellectual Property Agreement;
(v) lease or other agreement under which it is lessee of, intercompany indebtedness and immaterial leases or holds or operates any personal property owned by any other party, for telephoneswhich the annual rental exceeds $250,000 that is not terminable by the Company or such Subsidiary upon notice of sixty (60) days or less;
(vi) lease or other agreement under which it is lessor of or permits any third party to hold or operate any property, copy machinesreal or personal, facsimile machines and for which the annual rental exceeds $500,000 that is not terminable by the Company or such Subsidiary upon notice of sixty (60) days or less;
(vii) agreement with a Key Supplier;
(viii) agreement with a Key Payor;
(ix) agreement that restricts the Company or any of its Subsidiaries from freely engaging in any business anywhere in the world or that grants any exclusive rights to the Company, any of its Subsidiaries or any other office equipmentparty thereto;
(x) in excess agreement entered into on or after January 26, 2012 relating to any acquisition or disposition by the Company of $500,000any other Person, except for those issued all or substantially all of the assets, rights or properties of a Person or any merger, consolidation or similar business combination transaction;
(xi) agreement that involves any take-or-pay or requirements arrangement other than in the ordinary course of business;
(iixii) agreement relating to any contract joint venture, partnership, profit sharing or agreement that constitutes a collective bargaining or other arrangement with any labor unionsimilar arrangement;
(iiixiii) agreement involving any contract resolution or agreement that is a “material contract” within settlement of any actual or threatened Action involving the meaning Company or its Subsidiaries involving outstanding payments by or to the Company or its Subsidiaries in excess of Item 601(b)(10) of Regulation S-K$100,000 or any ongoing requirements or restrictions on the Company or its Subsidiaries;
(ivxiv) except as already provided in Section 3.11(a)(ii), agreement for (A) financial advisory services (not related to acquisitions, divestitures or similar matters) where payments exceed $500,000 annually or (B) third party management services;
(xv) agreement under which future capital expenditures required to be made by the Company or any lease of its Subsidiaries exceed $500,000;
(xvi) agreement requiring the Company or any of its Subsidiaries to indemnify or hold harmless any Person, other than in the ordinary course of business consistent with past practice;
(xvii) agreement pursuant to which the Company or any of its Subsidiaries has granted or is required to grant any Person the right to bring infringement or otherwise enforce rights with respect to Company Intellectual Property;
(xviii) agreement under which the Company or any of the its Subsidiaries has granted any Person a covenant not to ▇▇▇ under any material Company Subsidiaries is lessee ofIntellectual Property, or holds or operates, any property owned by any other Person with annual rent which agreement involves payments in excess of $500,000;
(v) any lease or agreement under which to the Company or any of its Subsidiaries in excess of $500,000 per annum;
(xix) agreement providing for royalties in excess of $500,000 per annum payable by or to the Company or its Subsidiaries is lessor of, to or permits from any Person (other than salaries and other amounts payable to hold employees, consultants and independent contractors not contingent on use of their work product) contingent on the ownership, use, possession, license-in, license-out, sale, marketing, advertising or operate, disposition of any property owned or controlled Company Intellectual Property by the Company or any of the Company Subsidiaries;
its Subsidiaries (vi) any contract or agreement limitingin each case, in any material respect, the ability of the Company or any of the Company Subsidiaries to 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;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(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 agreements with a total replacement cost of less than $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, customers entered into in the ordinary course of business);
(xivxx) agreement with any contract Governmental Body providing for payments by or agreement 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 its Subsidiaries in excess of $2,000,000 annually;
(xxi) agreement with any third party distributors or sales agents where payments exceed $500,000 annually (other than Contracts with third party distributors or sales agents that can be terminated by the Company or its Subsidiaries to own, operate, sell, transfer, pledge on notice of sixty (60) days or otherwise dispose of any material assets or business; andless without liability);
(xvxxii) any material contract or agreement that would require contains “earn-out” or other deferred purchase price obligations, in each case that are reasonably expected to result in payments, individually or in the aggregate, in excess of $500,000; or
(xxiii) agreement in writing to enter into any consent or approval of a counterparty as a result of the consummation foregoing.
(b) Each of the transactions contemplated by this Agreement. Each Material Contract (A) is legal, valid agreements listed or required to be listed on Schedule 3.11 and binding on each of the Company and the Company Subsidiaries which are a party to such contract, (B) Leases is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, is a valid, binding, enforceable, binding and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any enforceable obligation of the Company and its Subsidiaries, nor and, to the Knowledge of the Company, 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 knowledge of the Company, each of the other parties thereto, have performed and is not subject to any claims, charges, set-offs or defenses. Neither the Company nor any of its Subsidiaries, as applicable, 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 default (with or without notice or lapse of time would constitute a or both), or, as of the date hereof, is alleged in writing by the counterparty thereto to have materially breached or to be in material breach or default or permit termination, modification, or accelerationdefault, under any Lease or any agreement listed or required to be listed on Schedule 3.11, and, to the Material Contractsknowledge of the Company, the other party to each Lease or each of the agreements listed or required to be listed on Schedule 3.11 is not in material default (with or without notice or lapse of time) thereunder. The Company has made available to Buyer complete and correct copies of all agreements required to be listed on Schedule 3.11 and all Leases, together with all modifications, amendments and supplements thereto. None of the agreements listed or required to be listed on Schedule 3.11 or any of the Leases have been canceled or otherwise terminated, and neither the Company nor its Subsidiaries has received any written notice from any Person regarding any such cancellation or termination.
Appears in 1 contract
Sources: Merger Agreement (Stryker Corp)
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwiseExhibit 5(1)(cc) to the Investor or its representatives true, correct is a true and complete copies list and description as at the date hereof of each all written contracts and commitments (excluding purchase orders or supply contracts of the following less than CDN $200,000) to which the Company or any Company Subsidiary Corporation is a party (each, a “Material Contract”):or by which any of them is bound and which is:
(i) any contract Contract having a value 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, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) requiring expenditure annually in excess of $500,000, except for those issued in the ordinary course of businessCDN$200,000;
(ii) any contract continuing Contract for the purchase of materials, supplies, equipment or agreement that constitutes a collective bargaining or other arrangement with services involving in the case of any labor unionsuch Contract more than CDN$200,000 over the life of the Contract;
(iii) any contract Contract which expires or agreement that is a “material contract” within may be renewed at the meaning option of Item 601(b)(10) any person other than the Corporation so as to expire more than one year after the date of Regulation S-Kthis Agreement;
(iv) any lease trust indenture, mortgage, promissory note, loan agreement or agreement under which other Contract for the Company borrowing of money, any currency exchange, interest rate, commodities or other hedging arrangement or any leasing transaction of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person type required to be capitalized in accordance with annual rent payments in excess of $500,000GAAP;
(v) any lease confidentiality, secrecy or agreement under non-disclosure Contract (except for any such Contract with suppliers and customers entered into in the ordinary course, which the Company contain confidentiality, secrecy or non-disclosure provisions) or any Contract limiting the freedom of the Company Subsidiaries is lessor ofCorporation to engage in any line of business, compete with any other Person, solicit any Persons for any purpose, operate its assets at maximum production capacity or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiariesotherwise conduct its business;
(vi) any contract Contract pursuant to which the Corporation is a lessor of any machinery, equipment, motor vehicles, office furniture, fixtures or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Personpersonal property;
(vii) any settlement, conciliation Contract with any Person with whom the Corporation or similar agreement, the performance Vendor does not deal at arm's length within the meaning of which will involve payment after the Closing Date of consideration in excess of $500,000Tax Act;
(viii) any contract agreement of guarantee, support, indemnification, assumption or agreement that relates to Intellectual Property Rights endorsement of, or any similar commitment with respect to, the obligations, liabilities (whether accrued, absolute, contingent or otherwise) or indebtedness of any other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000);Person; and
(ix) any contract or agreement that concerns the sale or acquisition of any material portion Contract made out of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants Ordinary Course. The Corporation and each of the Company or any other Parties have performed all obligations to be performed under all Contracts, and neither of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of business;
(xiv) any contract or agreement 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 (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company Corporation nor any of the Company Subsidiaries, nor to the Knowledge of the Company, any other party thereto is in material violation default under any provision of such Contracts, and no event has occurred which constitutes, or which with the passage of time or the giving of notice or both will constitute, a breach or default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting provision thereof or which would permit the acceleration or termination of any benefits under obligation of any Material Contract will be accelerated, by party thereto or the occurrence creation of any lien or encumbrance upon any asset of the Corporation or which would give rise to any of the transactions contemplated by foregoing upon the Transaction Documents, nor will the value giving 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 or both. The copies of each of the Contracts delivered by the Vendors to the Purchaser represent the full and complete text thereof and have not been amended or modified, nor have any provisions thereof or rights of any party thereto been waived. Each of the Contracts was entered in a material breach or default or permit termination, modification, or acceleration, under bona fide transaction in the Material ContractsOrdinary Course of the business of the Corporation.
Appears in 1 contract
Contracts. (1) The Company Acquiror has Previously Disclosed or provided (by hard copy, electronic data room or otherwise) to the Investor or its representatives true, correct and complete copies of each of the following executory Contracts to which either the Company Acquiror or any Company Subsidiary of its Subsidiaries is a party (eachparty, a “Material Contract”):or by which any of them is bound or to which any of their properties is subject:
(iA) any contract lease of real property;
(B) any partnership, joint venture or other similar agreement relating or arrangement, or any options or rights to indebtedness acquire from any person any capital stock, voting securities or securities convertible into or exchangeable for borrowed moneycapital stock or voting securities or such person, letters of creditin each case, 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, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and entered into other office equipment) in excess of $500,000, except for those issued than in the ordinary course of business;
(iiC) any contract agreement relating to the acquisition or agreement that constitutes a collective bargaining disposition of any business (whether by merger, sale of stock, sale of assets or other arrangement with any labor unionotherwise);
(iiiD) any contract indenture, mortgage, promissory note, loan agreement, guarantee or other agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under which the Company or any commitment, outstanding as of the Company date hereof, for the borrowing of money by the Acquiror or one of its Subsidiaries is lessee of, or holds or operates, any the deferred purchase price of property owned by any other Person with annual rent payments in excess of $500,000100,000 (in either case, whether incurred, assumed, guaranteed or secured by any asset);
(vE) any lease agreement in force as of the date hereof that creates future payment obligations in excess of $100,000 in the aggregate and which by its terms does not terminate or is not terminable without penalty upon notice of 90 days or less;
(F) any license, franchise or similar agreement under which material to the Company Acquiror or any of its Subsidiaries or any agreement relating to any trade name or intellectual property right that is material to the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company Acquiror or any of the Company its Subsidiaries;
(viG) any contract exclusive dealing agreement or any agreement limiting, in any material respect, that limits the ability freedom of the Company Acquiror or any of the Company its Subsidiaries to engage 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 Personarea or that would so limit their freedom after the Effective Date;
(viiH) any settlementcompensation, conciliation employment, severance, supplemental retirement or other similar agreementagreement or arrangement with any employee or former employee of, or independent contractor with respect to, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(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 $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company Acquiror or any Company Subsidiary;
(xi) of its Subsidiaries, or any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or other agreement with respect to the employment or service of any current or former directors, officers, employees or consultants Affiliate 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 agreement 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 businessAcquiror; and
(xvI) any other Contract that is a "material contract contract" as defined in Item 601(b)(10) of SEC Regulation S-K and that has not been filed prior to the date hereof as an exhibit to the Acquiror's SEC Documents.
(2) Each Contract that has been, or agreement that would require any consent or approval of is required to be, Previously Disclosed pursuant to this Section is a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract (A) is legal, valid and binding on agreement of the Company Acquiror or one or more of its Subsidiaries, as the case may be, and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceableeffect, and the Acquiror or its Subsidiaries parties thereto are not in full force and effect default or breach in all any material respects following respect under 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, 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 terms 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 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 Material Contracts.
Appears in 1 contract
Contracts. (a) Schedule 4.10(a) sets forth a true, correct and complete list of all Contracts, commitments, licenses, agreements, obligations or binding arrangements, whether oral or written, to which the Company is a party or to which any of its assets or properties is bound:
(i) under which the Company is indemnified for or against any liability, or under which the Company is obligated to indemnify any Person for an existing claim;
(ii) under which the Company leases personal property from or to third parties under capitalized leases per annum or under operating leases, in each case involving payments by the Company in excess of $15,000 per annum;
(iii) for the purchase or sale of products or other personal property or for the furnishing or receipt of services in which the Company has agreed to purchase a minimum quantity of goods or services or has agreed to purchase goods or services exclusively from any Person, in each case involving payments by or to the Company in excess of $15,000 per annum (in addition, the Company has delivered to Buyer copies of all Contracts which call for performance over a period of more than one year, which Contracts are not separately listed on Schedule 4.10(a));
(iv) (A) granting representation, marketing or distribution rights or (B) relating to Company Intellectual Property (including license, development or similar agreements);
(v) under which the Company has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness for borrowed money;
(vi) establishing or maintaining any partnership, joint venture or strategic alliance;
(vii) under which there is or may be imposed a security interest or other Lien, other than a Permitted Lien, on any of its assets, whether tangible or intangible (other than security interests or Liens granted in favor of Buyer);
(viii) concerning any confidentiality or non-solicitation obligations entered into outside the ordinary course of business;
(ix) under which the Company is restricted from carrying on its business or any part thereof, or from competing in any line of business or with any Person;
(x) with officers, directors, employees or consultants of the Company, in each case involving payments by the Company in excess of $5,000 per annum;
(xi) involving any Affiliates of the Company;
(xii) any other Contract under which the consequences of an existing default or pending termination had, or would reasonably be expected to have, a Material Adverse Effect;
(xiii) under which the Company will (A) receive aggregate payments from customers, (B) make aggregate payments to vendors or other suppliers or (C) make or receive aggregate payments to or from any other Persons, in each case in excess of $25,000 per annum; and
(xiv) not entered into in the ordinary course of business and not otherwise disclosed on Schedule 4.10(a) in response to any of the foregoing clauses. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwise) delivered to the Investor or its representatives Buyer true, correct and complete copies of each Contract in existence as of the following to which the Company or any Company Subsidiary is a party date hereof.
(eachb) Except as disclosed on Schedule 4.10(b), a “Material Contract”):
(i) 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 each Contract existing as of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that date hereof is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) 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 Person with annual rent payments in excess of $500,000;
(v) 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;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to 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;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(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 $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or 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 agreement 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 (A) is legal, valid and binding on obligation of the Company, enforceable against the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or conveyance or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability, and (Cii) will continue to be legal, valid, binding, enforceable, and in full force and effect 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, 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 Contract existing as of the date hereof is a legal, valid and binding obligation of the other parties thereto, have performed enforceable against the other parties in accordance with its terms (except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or conveyance or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability) and is in full force and effect. The Company is and, to the Knowledge of the Company each other party to each Contract existing as of the date hereof are, in compliance in all material respects all material obligations required to be performed by them under each Material Contractwith the terms thereof, 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, event of default by the Company or acceleration, under the Material Contractsany other party thereto exists thereunder.
Appears in 1 contract
Sources: Stock Purchase Agreement (Critical Homecare Solutions Holdings, Inc.)
Contracts. The Section 2.9(a) of the Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwise) to the Investor or its representatives true, Disclosure Schedule sets forth a correct and complete copies list, and the Selling Members have furnished to Buyer correct and complete copies, of each of the following all material contracts, agreements, arrangements and commitments, whether written or oral, to which the Company or any Company Subsidiary of its subsidiaries is a party or bound (eachcollectively, a “Material Contract”):the "CONTRACTS"), including, without limitation:
(i) 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 all Employee Agreements and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of businessEmployee Benefit Plans;
(ii) all arrangements for the employment of any contract or agreement that constitutes a collective bargaining officer, individual employee or other arrangement with person performing work for the Company or any labor unionof its subsidiaries on a full-time, part-time, consulting or other basis;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement all arrangements under which the Company or any of its subsidiaries has advanced or loaned any other person amounts in the aggregate exceeding $10,000;
(iv) all agreements and indentures relating to borrowed money or other indebtedness or the mortgaging, pledging or otherwise placing any Encumbrance on any asset of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000its subsidiaries;
(v) any lease or agreement all guaranties and performance bonds;
(vi) all leases and agreements under which the Company or any of its subsidiaries is lessee of or holds or operates any real property owned by any other party;
(vii) all leases and agreements under which the Company Subsidiaries or any of its subsidiaries is lessee of or holds or operates any personal property owned by any other party, except for leases of personal property pursuant to which the aggregate rental payments do not exceed $10,000 per annum;
(viii) all leases and agreements under which the Company or any of its subsidiaries is lessor of, of or permits any Person third party to hold or operateoperate any property, any property real or personal, owned or controlled by the Company or any of the Company Subsidiariesits subsidiaries;
(viix) any contract all agreements and groups of related agreements with the same party or agreement limitinggroup of affiliated parties the performance of which involves consideration in the aggregate in excess of $10,000 per annum;
(x) all supply and manufacturing agreements;
(xi) all distribution agreements;
(xii) all licensing agreements; **CONFIDENTIAL TREATMENT REQUESTED BY ▇▇▇▇▇▇▇▇, in any material respect, the ability of INC.**
(xiii) all agreements prohibiting the Company or any of the Company Subsidiaries to engage its subsidiaries from freely engaging in any line of business or to compete, whether by restricting territories, customers or otherwise, or competing anywhere in any other material respect, with any Personthe world;
(viixiv) any settlement, all settlement and conciliation agreements;
(xv) all powers of attorney; and
(xvi) all other agreements material to the operations and business prospects of the Company and its subsidiaries or similar agreement, the performance of which will involve payment after the Closing Date of involves a consideration in excess of $500,000;
(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 10,000 per annum exclusive of less than $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or 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 agreement 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 (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect 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, 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 Material Contractsopen purchase orders.
Appears in 1 contract
Sources: Membership Interests Purchase Agreement (Ashworth Inc)
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwisea) to the Investor or its representatives true, correct Except for this Agreement and complete copies of each as set forth on Section 3.15(a) of the following to which Company Disclosure Letter, as of the date of this Agreement, no Company or any Company Subsidiary Entity is a party to any Contracts (eachexcluding any Leases) that fall within the following categories (collectively, a the “Material ContractContracts”):
(i) any contract Contract with a vendor or agreement relating to indebtedness supplier providing for borrowed money, letters aggregate payments from the Company during any future twelve month period 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, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of more than $500,000, except for those issued in the ordinary course of business25,000;
(ii) any contract or agreement that constitutes Contract with a collective bargaining or other arrangement with customer providing for aggregate payments to the Company and its Subsidiaries during any labor unionfuture twelve month period of more than $50,000;
(iii) any contract or agreement Contract that is a “joint venture, strategic alliance, partnership, shareholder or similar Contract that is material contract” within to the meaning operation of Item 601(b)(10) of Regulation S-Kthe Company;
(iv) any lease is a management or agreement under which the Company or any service consulting Contract providing for annual payments of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person with annual rent payments in excess of more than $500,00050,000;
(v) any lease Contract (other than those between or agreement under which the Company or among any of the Company Subsidiaries is lessor of, or permits any Person Entities) relating to hold or operate, any property owned or controlled by the Company or any Indebtedness for borrowed money of the Company Subsidiaries(whether outstanding or as may be incurred) in an amount in excess of $15,000;
(vi) any contract or agreement limiting, in any material respect, the ability of under which the Company or has granted any of the Company Subsidiaries to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any PersonPerson registration rights (including demand and piggy-back registration rights);
(vii) any settlementContract with any Governmental Authority providing for aggregate payments to the Company of more than $50,000 during the fiscal year of the Company ended on or about December 31, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,0002019;
(viii) any contract or agreement that relates to Intellectual Property Rights (other than is a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or 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 agreement containing any (x) non-competition or exclusive dealing obligations non-solicitation Contract or any other obligation which purports to limit Contract that limits, individually or restrict in the aggregate, in any material respect the ability of the Company or any Company Subsidiary to solicit customers or (A) the manner in which, or the localities in which, all or any portion of the business of the Company Company, is or could be conducted or (B) the types of businesses that the Company Subsidiaries conduct;
(ix) any Contract relating to the acquisition or disposition of any business, operations or assets (whether by merger, sale of stock, sale of assets, consolidation or otherwise) entered into within the past two (2) years for aggregate consideration under such Contract in excess of $75,000;
(x) any Contract that contains an inbound license with respect to the Intellectual Property of a third party (for clarity, excluding commercially available software that is available pursuant to “off-the-shelf,” “shrink-wrap” or can be conducted“click-through” type Contracts for software or software-as-a-service (“Off-the-shelf-Software”))(“IP Contracts”) that is material to the Company;
(xi) any Contract that contains an outbound license of Company Owned IP that is material to the Company;
(xii) any Contract that is material to the Company, or that provides for “single source” supply to the Company;
(yxiii) any Contract granting a right of first refusal or right of first offer or similar right or that limits or purports negotiation to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of third party over any material assets of the Company;
(xiv) is a material hedging, derivative or businesssimilar Contract (including interest rate, currency or commodity swap agreements, cap agreements, collar agreements and any similar Contract designed to protect a Person against fluctuations in interest rates, currency exchange rates or commodity prices); andor
(xv) any Contract that constitutes a “material contract or agreement that would require any consent or approval contract” (as such term is defined in item 601(b)(10) of a counterparty as a result Regulation S-K under the Securities Act) of the consummation of the transactions contemplated by this Agreement. Each Material Contract (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue required to be legalfiled with the SEC that has not been filed.
(b) Except as would not reasonably be expected to result in, individually or in the aggregate, a Company Material Adverse Effect: (i) each Material Contract is a valid, bindingbinding and legally enforceable obligation of each Company Entity party thereto and, enforceable, and in full force and effect 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, 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 other parties thereto, subject in all respects to 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 Bankruptcy and the Company Subsidiaries, and Equity Exceptions; (ii) to the Knowledge of the Company, each such Material Contract is in full force and effect; and (iii) as of the other parties theretodate of this Agreement, have performed no Company Entity is (with or without notice or lapse of time, or both) in all material respects all material obligations required to be performed by them breach or default under each any such Material ContractContract and, and to the Knowledge of the Company, no event has occurred that other party to any such Material Contract is (with or without notice or lapse of time would constitute a material time, or both) in breach or default thereunder, except, in the case of clause (i) or permit terminationclause (ii), modification, with respect to any Material Contract which is expired by its terms (as in effect as of the date hereof) or acceleration, under which is terminated in accordance with the Material Contractsterms thereof by the Company in the ordinary course of business consistent with past practice.
Appears in 1 contract
Contracts. The Company has Previously Disclosed or provided (by hard copy, 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 or any Company Subsidiary is a party (each, a “Material Contract”):
(i) 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, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) 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 Person with annual rent payments in excess of $500,000;
(v) 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;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to 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;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(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 $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or 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 agreement 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 (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect 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, 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 Material Contracts.
Appears in 1 contract
Sources: Subscription Agreement (Central Pacific Financial Corp)
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwisea) to the Investor or its representatives true, Schedule 5.11 sets forth a correct and complete copies of each list of the following Contracts (other than Employee Plans, IP Licenses, Insurance Policies, Company Permits, purchase orders and Leases) to which the Seller, the Company or any Company Subsidiary is a party, or by which any of them or any of their assets is bound, as of the date hereof that relates to 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”):
(i) any Contract or group of related Contracts pursuant to which 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, independent contractor or other service provider of the Company or a Company Subsidiary with an annual remuneration (salary, any target variable compensation and bonus) in excess of $150,000, 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 contained in the Company’s standard form offer letter then in effect;
(iii) any Contract pursuant to which the Company or any Company Subsidiary is a party (each, a “Material Contract”):
(i) has incurred any contract Indebtedness 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, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-Kguarantee thereof;
(iv) any lease Contract that grants exclusivity or agreement under which 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 Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person with annual rent payments in excess Ordinary Course of $500,000Business);
(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 Company or any of the Company Subsidiaries;
Seller (vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to 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;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viii) any contract or agreement that as it 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 $500,000Business);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xivi) any contract Contract or agreement involving annual payments in excess binding term sheet relating to the disposition or acquisition of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedgebusiness, collar, option, forward purchasing, swap, derivative or similar agreement, understanding any merger or undertaking;
(xiii) any contract or agreement business combination with respect to the employment Company, the Company Subsidiaries or service 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 current Person with respect to the sale (whether by merger or former directors, officers, employees or consultants otherwise) of the Equity Interests of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of businessSubsidiary;
(xivix) any contract Contract pursuant to which the Seller (as it relates to the Business), the Company or agreement containing 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) non-competition any Contract under which the Seller, the Company or exclusive dealing obligations any Company Subsidiary has permitted any material asset (whether tangible or other obligation which purports to limit intangible) or restrict in any respect the ability property of the Company or any Company Subsidiary to solicit customers become subject to any Encumbrance (other than a Permitted Encumbrance);
(xi) any Contract that is an agency, dealer, distributor, sales representative or the manner in which, other similar agreement;
(xii) any outstanding general or the localities in which, all special powers of attorney executed by 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 on behalf of the Company or any Company Subsidiary;
(xiii) any Contract relating to any outstanding commitment for capital expenditures in excess of $50,000 individually or $150,000 in the aggregate;
(xiv) any Contract with any Governmental Authority providing for annual payments in excess of $100,000, other than the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; andPermits;
(xv) any material contract or agreement Contract that would require provides for any consent or approval Change of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material Control Payment;
(xvi) any Contract (A) is legal, valid and binding on under which the Company or any Company 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;
(xvii) any partnership agreements, joint venture agreements, shareholder agreements, voting agreements, tax sharing agreements and any other similar agreements involving a share of profits, losses, costs or liabilities between the Company Subsidiaries which are or a party to such contract, Company Subsidiary and a third party;
(Bxviii) is in full force and effect and enforceable in accordance any Contract with its terms and (C) will continue a Person required to be legallisted on Schedule 5.25;
(xix) any collective bargaining agreement or other Contract with any Labor Union; and
(xx) any Contract, validexcept for Organizational Documents, bindingproviding for indemnification of Affiliates, enforceablemanagers, and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any officers or directors of the Company Subsidiariesor any Company Subsidiary.
(b) None of the Company, nor any Company Subsidiary or, to the Knowledge of the Company, any other party thereto is in material violation breach of or default under under, or has repudiated any material provision of, any Material Contract. No benefits under any party to a Material Contract will be increasedhas terminated, and no vesting of any benefits modified, accelerated, reduced its obligations under any or cancelled such Material Contract will be acceleratedor any material right or obligation thereunder or, 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 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 other parties theretoCompany or such Company Subsidiary, have performed in all material respects all material obligations required to be performed by them under each Material Contractas applicable, and and, to the Knowledge of the Company, no event the other parties thereto and (ii) is in full force and effect, enforceable against the Company or such Company Subsidiary, as applicable, and, to the Knowledge of the Company, the other parties thereto, 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 occurred that with notice made available to the Buyer (i) accurate and complete copies each written Material Contract in each case, as amended or lapse otherwise modified and in effect and (ii) a written summary setting forth all of time would constitute a the material breach or default or permit termination, modification, or acceleration, under the terms and conditions of each oral Material ContractsContract.
Appears in 1 contract
Contracts. The Company has Previously Disclosed or provided (by hard copyExcept as set forth in Schedule 5.14, electronic data room or otherwise) as of the date of this Agreement, none of the Companies is, and neither the Selling Stockholders nor any of their Affiliates are, with respect to the Investor or its representatives trueBusiness, correct and complete copies of each of the following to which the Company or any Company Subsidiary is a party (each, a “Material Contract”):to or bound by:
(i) any contract for the future purchase or agreement relating to indebtedness for borrowed money, letters sale 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, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of businessreal property;
(ii) any contract for the purchase by such Company or agreement that constitutes a collective bargaining the Business of services, supplies, components or other arrangement with any labor unionequipment which such Company reasonably anticipates will involve the annual payment of more than $500,000 after the date hereof;
(iii) any contract for the sale by such Company or agreement that is a “material the Business of any services or products of the Companies’ businesses which such Company reasonably anticipates will involve the annual payment of more than $1,000,000 after the date hereof or any rebate arrangement related to such contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease loan agreements, promissory notes, indentures, bonds, security agreements, guarantees or agreement under which the Company obligations for borrowed money or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person with annual rent payments instruments involving indebtedness in an amount in excess of $500,000250,000;
(v) any lease partnership, joint venture or other similar 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 Subsidiariesarrangement;
(vi) any contract or agreement limitingmanagement service, in any material respectconsulting, the ability of the Company financial advisory or any other similar type of the Company Subsidiaries to engage in contract and any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, contracts with any Personinvestment or commercial bank;
(vii) any settlementcontract (including letters of intent) involving the disposition or acquisition of material assets or properties, conciliation or any merger, consolidation or similar agreementbusiness combination transaction, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000whether or not enforceable;
(viii) any contract contracts which contain restrictions with respect to payment of dividends or agreement that relates to Intellectual Property Rights (any other than a license granted to distribution in respect of the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000)capital stock or other equity interests;
(ix) any contract containing any covenant or agreement that concerns provision prohibiting such Company or the sale Business from engaging in any line or acquisition type of any material portion of the Company’s businessbusiness (except for such contracts which shall not apply to such Company upon Closing);
(x) any alliancecontract between such Company, cooperationon the one hand, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company and any Selling Stockholder (or any Company SubsidiaryAffiliate thereof other than any Company) on the other hand;
(xi) any contract outstanding agreements of guaranty, surety or agreement involving annual payments indemnification, direct or indirect, by such Company, other than indemnification agreements with respect to the purchase or sale of goods set forth in excess supplier or customer contracts entered into in the ordinary course of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;business and consistent with past practices; or
(xii) any material hedgecontract under which such Company has made advances or loans to any other Person in excess of $10,000 individually, collar, option, forward purchasing, swap, derivative other than advances or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect loans to Affiliates that will be repaid prior to the employment or service of any current or former directors, officers, employees or 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 agreement 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 (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect 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, 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 Material ContractsClosing.
Appears in 1 contract
Sources: Purchase Agreement (Owens Corning)
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwisea) to the Investor or its representatives true, correct and complete copies of each Section 3.16(a) of the following Company Disclosure Letter lists all of the Material Contracts to which the Company or any Company Subsidiary of its Subsidiaries is a party (each, a or by which any of their respective properties or assets is bound other than those Material Contracts already set forth in the Company SEC Documents publicly available prior to the date of this Agreement. All copies of Material Contracts made available to Parent are true and complete copies of such Contracts. “Material Contract”):Contracts“ means:
(i) any contract or agreement relating 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, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is Company as a “material contract” within the meaning of 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;
(ivii) 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 Person with annual rent payments in excess of $500,000;
(v) 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;
(vi) any contract or agreement limiting, in any material respect, Contract that limits the ability of the Company or any of the Company its Subsidiaries to engage in any line of business or to compete(or, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(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 $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or 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 agreement 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 following the consummation of the transactions contemplated by this Agreement. , would limit the ability of Parent or any of its Subsidiaries, including the Surviving Corporation) to compete in any line of business or with any Person or in any geographic area, or that restricts the right of the Company and its Subsidiaries (or, following the consummation of the transactions contemplated by this Agreement, would limit the ability of Parent or any of its Subsidiaries, including the Surviving Corporation) to sell to or purchase from any Person or to hire any Person, or that grants the other party or any third Person “most favored nation” status or any similar type of favored discount rights;
(iii) any Contract with respect to the formation, creation, operation, management or control of a joint venture, partnership, limited liability or other similar agreement or arrangement; or
(iv) any Contract with a customer that is material to the business of the Company or the applicable Subsidiary that requires a consent to or otherwise contains a provision relating to a “change of control,” or that would or would reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated by this Agreement.
(b) Each Material Contract (A) is legal, valid and binding on the Company and any of its Subsidiaries to the Company Subsidiaries which are extent such Subsidiary is a party thereto, as applicable, and to such contractthe knowledge of the Company, (B) each other party thereto, and is in full force and effect and enforceable in accordance with its terms terms, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (Cii) will continue equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be legalbrought and except as would not individually or in the aggregate have a Material Adverse Effect. To the knowledge of the Company, validthere is no default, bindingunder any Material Contract by the Company or any of its Subsidiaries or, enforceableto its knowledge, any other party thereto, except for such defaults that individually or in the aggregate would not be reasonably expected to have a Material Adverse Effect. The Company has made available to Parent true and in full force and complete copies of all Material Contracts, including any amendments thereto. The Company makes no representation or warranty concerning the effect in all material respects following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor hereby on any of the Company Subsidiaries, nor to the Knowledge of the Company, any other party thereto is “change in material violation control” or default under similar clause contained in 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 Material Contracts.
Appears in 1 contract
Contracts. The Company has Previously Disclosed or provided to the Companies' Disclosure Schedule lists all contracts, agreements, guarantees, leases and executory commitments that existed as of November 8, 1998 other than Plans (by hard copy, electronic data room or otherwiseeach a "Contract") to which any of the Investor or its representatives true, correct Companies is a party and complete copies of each which fall within any of the following categories: (a) Contracts not entered into in the Ordinary Course of Business other than those that are not material to which the Company or any Company Subsidiary is a party Businesses, (eachb) joint venture and partnership agreements, a “Material Contract”):
(ic) any contract or agreement relating Contracts containing covenants purporting 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 limit the freedom of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) 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 Person with annual rent payments in excess of $500,000;
(v) any lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person Companies to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to engage compete in any line of business in any geographic area or to competehire any individual or group of individuals, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(viid) any settlement, conciliation or similar agreement, the performance of Contracts which will involve payment after the Closing Date would have the effect of consideration limiting the freedom of the Purchaser or its subsidiaries to compete in any line of business in any geographic area or to hire any individual or group of individuals, (e) Contracts which contain minimum purchase conditions in excess of $500,000;
(viii) any contract 1,000,000 with respect to inventory purchases for resale, and $500,000 in the case of everything else, or agreement requirements or other terms that relates to Intellectual Property Rights (other than a license granted to restrict or limit the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000);
(ix) any contract or agreement that concerns the sale or acquisition purchasing relationships of any material portion of the Company’s business;
Companies, or any customer, licensee or lessee thereof, (xf) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses Contracts relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments outstanding commitment for capital expenditures in excess of $500,000 that cannot be cancelled 250,000, (g) indentures, mortgages, promissory notes, loan agreements or guarantees of borrowed money in excess of $1,000,000, letters of credit or other agreements or instruments of any of the Companies or commitments for the borrowing or the lending of amounts in excess of $1,000,000 by any of the Companies or providing for the creation of any charge, security interest, encumbrance or lien upon any of the assets of any of the Companies with an aggregate value in excess of $100,000, (h) Contracts providing for "earn-outs" or other contingent payments by any of the Companies involving more than $100,000 over the term of the Contract, and (i) Contracts with or for the benefit of any Affiliate of any of the Companies or immediate family member thereof (other than subsidiaries of the Company) involving more than $60,000 in the aggregate per Affiliate. All such Contracts and all contracts to which Companies is a party and which involve annual revenues to the Businesses of the Companies in excess of 2.5% of the Companies' consolidated annual revenues (each, a "Material Contract") are valid and binding obligations of one or more of the Companies and, to the knowledge of the Company and the Counsel Entities, the valid and binding obligation of each other party thereto except such Contracts or Material Contracts which if not so valid and binding would not, individually or in the aggregate, reasonably be expected to result in a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement Material Adverse Change with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company or Companies taken as a whole. Neither any of the Company Subsidiaries other thanCompanies nor, with respect to non-executive employees and consultants, in the ordinary course of business;
(xiv) any contract or agreement 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 knowledge 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 (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect 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 CompanyCounsel Entities, any other party thereto is in material violation of or in default in respect of, nor has there occurred an event or condition which with the passage of time or giving of notice (or both) would constitute a default under or permit the termination of, any Material Contract. No benefits under any such Contract or Material Contract will except such violations or defaults under or terminations which, individually or in the aggregate, would not reasonably be increased, and no vesting expected to result in a Material Adverse Change with respect to the Companies taken as a whole. Set forth in Section 3.17(j) to the Companies' Disclosure Schedule is a description of any benefits under any Material Contract will be accelerated, by material changes to the occurrence amount and terms of the indentures of any of the transactions contemplated by Companies from the Transaction Documents, nor will descriptions thereof in 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 notes 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 financial statements previously delivered 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 Material ContractsPurchaser.
Appears in 1 contract