Contracts. Except as filed as exhibits to the Company SEC Documents filed prior to the date hereof, or as disclosed in Section 3.13 of the Company Disclosure Schedule, there is no Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities (a) any of the benefits to any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or (b) which, as of the date hereof, (i) is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC), (ii) involves aggregate expenditures in excess of $50,000 per annum, (iii) involves aggregate expenditures in excess of $50,000 and was not entered into in the ordinary course of business, (iv) contains “take or pay” provisions applicable to the Company or any Company Subsidiary, (v) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to the Company, any Company Subsidiary or any of the Company’s current or future affiliates, or which restricts the conduct of any line of business by the Company, any of the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct business, in each case in any respect, (vi) would reasonably be expected to prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions or (vii) is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded Asset. Each contract of the type described in this Section 3.13, whether or not set forth in Section 3.13 of the Company Disclosure Schedule, is referred to herein as a “Company Material Contract”. Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities is valid and binding on the Company and each Company Subsidiary party thereto and, to the Company’s knowledge, each other party thereto, as applicable, and in full force and effect, and the Company and each Company Subsidiary has performed all obligations required to be performed by it under each such Company Agreement and, to the Company’s knowledge, each other party to each such Company Agreement has performed all obligations required to be performed by it under such Company Agreement, except as would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. 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 Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities except for violations or defaults that would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. The Company has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all of the Company Material Contracts or other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities 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 or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contracts.
Appears in 3 contracts
Sources: Merger Agreement (New 360), Merger Agreement (Point 360), Merger Agreement (DG FastChannel, Inc)
Contracts. Except as filed as exhibits to the Company SEC Documents filed prior to the date hereof, or as disclosed in Section 3.13 of the Company Disclosure Schedule, there is no Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities (a) any of the benefits to any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or (b) which, as of the date hereof, (i) is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC), (ii) involves aggregate expenditures in excess of $50,000 per annum, (iii) involves aggregate expenditures in excess of $50,000 and was not entered into in the ordinary course of business, (iv) contains “take or pay” provisions applicable to Neither the Company or any Company Subsidiary, (v) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to the Company, any Company Subsidiary or any of the Company’s current or future affiliates, or which restricts the conduct of any line of business by the Company, any of the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct business, in each case in any respect, (vi) would reasonably be expected to prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions or (vii) is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded Asset. Each contract of the type described in this Section 3.13, whether or not set forth in Section 3.13 of the Company Disclosure Schedule, is referred to herein as a “Company Material Contract”. Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities is valid and binding on the Company and each Company Subsidiary party thereto and, to the Company’s knowledge, each other party thereto, as applicable, and in full force and effect, and the Company and each Company Subsidiary has performed all obligations required to be performed by it under each such Company Agreement and, to the Company’s knowledge, each other party to each such Company Agreement has performed all obligations required to be performed by it under such Company Agreement, except as would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of nor any of its material obligations under this Agreement or (3) result Subsidiaries is in a Company Material Adverse Effect. None of the Company or any Company Subsidiary knows of, or has received notice of, any violation or breach of or in default under (or nor does there exist any condition which with that upon the passage of time or the giving of notice or both would cause such a violation or breach of or default under) any Company Agreement relating Contract to the ADS Businesswhich it is a party or by which it or any of its properties or assets is bound, the Acquired Assets or the Retained Liabilities except for violations violations, breaches or defaults that would not, or would not be reasonably expected to, individually or in the aggregateaggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company. The Company or one of its Subsidiaries has good and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company.
(1ii) prohibit or materially delay consummation Except for Contracts filed in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(ii) of the Offer, the Merger or any Company Disclosure Schedule sets forth a true and complete list as of the other Transactionsdate of this Agreement, (2) otherwise prevent or materially delay performance by and the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. The Company has delivered to the Purchaser or provided to the Purchaser for review, Parent prior to the execution date of this Agreement, Agreement true, complete and correct copies (including all amendments and modifications thereto) of:
(A) all Contracts to which the Company or any of all its Subsidiaries is a party, or that purports to be binding upon the Company, any of its Subsidiaries or any of its Affiliates, that contain a covenant restricting the ability of the Company Material or any of its Subsidiaries (or which, following the consummation of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company and its Subsidiaries) to compete in any business or with any person or in any geographic area;
(B) all Contracts or other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities 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 or other Company Agreements required to be disclosed in Section 3.13 any of its Subsidiaries with any Affiliate of the Company Disclosure Schedule filed as exhibits (other than any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements to which the Company SEC Documents are trueor any of its Subsidiaries is a party (including all amendments and modifications thereto); and
(D) all loan agreements, complete credit agreements, notes, debentures, bonds, mortgages, indentures and correct copies other Contracts (collectively, "debt obligations") pursuant to which any indebtedness of such contractsthe 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 debt obligations of any other person (other than the Company or any of its Subsidiaries), including the respective aggregate principal amounts outstanding as of the date of this Agreement.
Appears in 3 contracts
Sources: Merger Agreement (Olin Corp), Merger Agreement (Citigroup Inc), Merger Agreement (Chase Industries Inc)
Contracts. Except As of the date hereof, except as filed as exhibits to the Company Parent SEC Documents filed prior to the date hereof, Filings or as disclosed in Section 3.13 of the Company Parent Disclosure Schedule, there is no Company Agreement relating to the ADS Business, the Acquired Assets none of Parent or the Retained Liabilities (a) any of the benefits its Subsidiaries is a party to or bound by any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions Contract that (except as disclosed pursuant to Section 3.11) or (b) which, as of the date hereof, (i1) is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of under the SECSecurities Act), (ii) involves aggregate expenditures in excess of $50,000 per annum, (iii) involves aggregate expenditures in excess of $50,000 and was not entered into in the ordinary course of business, (iv) contains “take or pay” provisions applicable to the Company or any Company Subsidiary, (v2) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to the Company, any Company Subsidiary Parent or any of the Company’s current or future affiliatesits Subsidiaries, or which restricts the conduct of any line of business by the Company, Parent or any of the Company’s current or future affiliates, any Company Subsidiary its Subsidiaries or any geographic area in which the Company, any Company Subsidiary Parent or any of the Company’s current or future affiliates its Subsidiaries may conduct business, in each case in any respect, material respect or (vi3) which would reasonably be expected to prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions or (vii) is necessary for the conduct transactions contemplated by this Agreement. As of the ADS Business as currently conducted but constitutes an Excluded Asset. Each contract date hereof, each Contract of the type described in this Section 3.13, whether or not set forth in Section 3.13 of the Company Parent Disclosure Schedule, is referred to herein as a “Company Parent Material Contract”. .” Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities Parent Material Contract is valid and binding on the Company Parent and each Company Subsidiary of its Subsidiaries party thereto and, to the CompanyParent’s knowledge, each other party thereto, as applicable, and in full force and effect, and the Company Parent and each Company Subsidiary of its Subsidiaries has in all respects performed all obligations required to be performed by it to the date hereof under each such Company Agreement Parent Material Contract and, to the CompanyParent’s knowledge, each other party to each such Company Agreement Parent Material Contract has in all respects performed all obligations required to be performed by it under such Company AgreementParent Material Contract, except as would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in have a Company Material Adverse Effect. None As of the Company date hereof, none of Parent or any Company Subsidiary knows of, or of its Subsidiaries has received any written notice of, 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 Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities except for violations or defaults that would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Parent Material Adverse EffectContract. The Company Parent has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all of the Company Material Contracts or other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities required to be disclosed in Section 3.13 of the Company Disclosure Schedule, which are not filed as exhibits made available to the Company SEC Documents true and the Company Material Contracts or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contractseach Parent Material Contract.
Appears in 3 contracts
Sources: Merger Agreement (RespireRx Pharmaceuticals Inc.), Merger Agreement (Cortex Pharmaceuticals Inc/De/), Merger Agreement (Anesiva, Inc.)
Contracts. Except as filed as exhibits (i) Neither Premcor nor any of its Subsidiaries is a party to or bound by any contract, arrangement, commitment or understanding (whether written or oral) (A) with respect to the Company SEC Documents filed prior to employment of any directors, officers or employees other than in the date hereofordinary course of business consistent with past practice, (B) that, upon the consummation or as disclosed in Section 3.13 stockholder approval of the Company Disclosure Scheduletransactions contemplated by this Agreement, there is no Company Agreement relating to the ADS Business, the Acquired Assets will (either alone or the Retained Liabilities (a) any of the benefits to any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by upon the occurrence of any additional acts or events) result in any payment (whether of severance pay or otherwise) becoming due from Valero, Premcor, the Transactions Surviving Corporation or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or (b) which, as of the date hereoftheir respective Subsidiaries, (iC) that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC), (ii) involves aggregate expenditures in excess to be performed after the date of $50,000 per annum, (iii) involves aggregate expenditures in excess of $50,000 and was this Agreement that has not entered into been filed or incorporated by reference in the ordinary course of business, (iv) contains “take or pay” provisions applicable Premcor SEC Documents filed prior to the Company or any Company Subsidiary, (v) contains any non-compete or exclusivity provisions with respect to any line date of business or geographic area with respect to the Company, any Company Subsidiary or any of the Company’s current or future affiliatesthis Agreement, or which (D) that materially restricts the conduct of any line of business by the Company, any of the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary Premcor or any of the Company’s current its Subsidiaries (including geographical restrictions) or future affiliates may conduct business, in each case in any respect, (vi) would reasonably be expected to prohibit or materially delay the upon consummation of the OfferMerger will materially restrict the ability of Valero, the Merger Surviving Corporation or any of the other Transactions or their respective Subsidiaries to engage in any line of business (vii) is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded Assetincluding geographical restrictions). Each contract contract, arrangement, commitment or understanding of the type described in this Section 3.134.1(j), whether or not set forth in Section 3.13 of the Company Premcor Disclosure ScheduleSchedule or in such Premcor SEC Documents, is referred to herein as a “Company Material Premcor Contract.”.
(ii) (A) Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities Premcor Contract is valid and binding on the Company Premcor and each Company Subsidiary party thereto and, to the Company’s knowledge, each other any of its Subsidiaries that is a party thereto, as applicable, and in full force and effect, and the Company (B) Premcor and each Company Subsidiary of its Subsidiaries has in all material respects performed all obligations required to be performed by it to date under each such Company Agreement and, to the Company’s knowledge, each other party to each such Company Agreement has performed all obligations required to be performed by it under such Company AgreementPremcor Contract, except as would notwhere such noncompliance, or would not be reasonably expected to, either individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on Premcor, and (1C) prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of neither Premcor nor any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. None of the Company or any Company Subsidiary Subsidiaries knows of, or has received notice of, the existence of any violation event or default under (condition that constitutes, or, after notice or any condition which with the passage lapse of time or both, will constitute, a material default on the giving part of notice would cause Premcor or any of its Subsidiaries under any such a violation of or default under) any Company Agreement relating to the ADS BusinessPremcor Contract, the Acquired Assets or the Retained Liabilities except for violations or defaults that would notwhere such default, or would not be reasonably expected to, either individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in would not reasonably be expected to have a Company Material Adverse Effect. The Company has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all of the Company Material Contracts or other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities 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 or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contractsEffect on Premcor.
Appears in 2 contracts
Sources: Merger Agreement (Premcor Inc), Merger Agreement (Valero Energy Corp/Tx)
Contracts. Except as filed as exhibits (i) Neither UDS nor any of its Subsidiaries is a party to or bound by any contract, arrangement, commitment or understanding (whether written or oral) (A) with respect to the Company SEC Documents filed prior to employment of any directors, officers or employees other than in the date hereofordinary course of business consistent with past practice, (B) which, upon the consummation or as disclosed in Section 3.13 stockholder approval of the Company Disclosure Scheduletransactions contemplated by this Agreement, there is no Company Agreement relating to the ADS Business, the Acquired Assets will (either alone or the Retained Liabilities (a) any of the benefits to any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by upon the occurrence of any additional acts or events) result in any payment (whether of severance pay or otherwise) becoming due from Valero, UDS, the Transactions Surviving Corporation or the value of any of the benefits their respective Subsidiaries to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) director officer or (b) which, as of the date hereofemployee thereof, (iC) which is a “"material contract” " (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC), (ii) involves aggregate expenditures in excess to be performed after the date of $50,000 per annum, (iii) involves aggregate expenditures in excess of $50,000 and was this Agreement that has not entered into been filed or incorporated by reference in the ordinary course of business, (iv) contains “take or pay” provisions applicable UDS SEC Documents filed prior to the Company or any Company Subsidiary, (v) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to the Company, any Company Subsidiary or any of the Company’s current or future affiliatesdate hereof, or (D) which materially restricts the conduct of any line of business by the Company, any of the Company’s current UDS or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct business, in each case in any respect, (vi) would reasonably be expected to prohibit or materially delay the upon consummation of the Offer, Merger will materially restrict the Merger ability of Valero or the Surviving Corporation to engage in any line of the other Transactions or (vii) is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded Assetbusiness. Each contract contract, arrangement, commitment or understanding of the type described in this Section 3.134.1(j), whether or not set forth in Section 3.13 of the Company UDS Disclosure ScheduleSchedule or in such UDS SEC Documents, is referred to herein as a “Company Material "UDS Contract”. ".
(A) Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities UDS Contract is valid and binding on the Company UDS and each Company Subsidiary party thereto and, to the Company’s knowledge, each other any of its Subsidiaries that is a party thereto, as applicable, and in full force and effect, and the Company (B) UDS and each Company Subsidiary of its Subsidiaries has in all material respects performed all obligations required to be performed by it to date under each such Company Agreement and, to the Company’s knowledge, each other party to each such Company Agreement has performed all obligations required to be performed by it under such Company AgreementUDS Contract, except as would notwhere such noncompliance, or would not be reasonably expected to, either individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on UDS, and (1C) prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of neither UDS nor any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. None of the Company or any Company Subsidiary Subsidiaries knows of, or has received notice of, the existence of any violation event or default under (or any condition which with the passage constitutes, or, after notice or lapse of time or both, will constitute, a material default on the giving part of notice would cause UDS or any of its Subsidiaries under any such a violation of or default under) any Company Agreement relating to the ADS BusinessUDS Contract, the Acquired Assets or the Retained Liabilities except for violations or defaults that would notwhere such default, or would not be reasonably expected to, either individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in would not reasonably be expected to have a Company Material Adverse Effect. The Company has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all of the Company Material Contracts or other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities 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 or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contractsEffect on UDS.
Appears in 2 contracts
Sources: Merger Agreement (Ultramar Diamond Shamrock Corp), Merger Agreement (Valero Energy Corp/Tx)
Contracts. Except as filed as exhibits to the Company SEC Documents filed prior to the date hereof, or as disclosed in Section 3.13 of the Company Disclosure Schedule, there is no Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities (a) any of the benefits to any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or (b) which, as As of the date hereof, neither the Company nor any of its Subsidiaries is a party to or bound by (i) is a any “material contract” (as such term item is defined in Item 601(b)(10) of Regulation S-K of the SECK), (ii) involves aggregate expenditures in excess of $50,000 per annum, any joint venture agreement and (iii) involves aggregate expenditures in excess other than the Pharmacy Agreement with Medco Health Solutions, Inc., a true and complete copy of $50,000 and was not entered into in which has been provided to Buyer prior to the ordinary course of businessdate hereof, (iv) contains “take any agreement which does or pay” provisions applicable to may establish the terms under which the Company or any Company Subsidiary, (v) contains any non-compete of its Subsidiaries will receive payment for providing products or exclusivity provisions with respect to any line of business or geographic area with respect services to the Companysponsors or beneficiaries of any Part D plan (as such term is defined at 42 C.F.R. Section 423.4), including any Part D plan which has not, as of the date hereof, been approved by the Centers for Medicare and Medicaid Services as a Part D plan, but for which such approval is being sought. Prior to the date hereof, the Company Subsidiary has provided to Buyer access to substantially all of the customer or provider agreements to which the Company or any of the Company’s current its Subsidiary is a party to or future affiliates, or which restricts the conduct of any line of business by the Company, any bound by. As of the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct business, in each case in any respect, (vi) would reasonably be expected to prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions or (vii) is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded Asset. Each contract of the type described in this Section 3.13, whether or not set forth in Section 3.13 of the Company Disclosure Schedule, is referred to herein as a “Company Material Contract”. Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities is valid and binding on the Company and each Company Subsidiary party thereto anddate hereof, to the Company’s knowledgeactual knowledge (without inquiry), neither the Company nor any of its Subsidiaries is a party to, or bound by, any written or oral non-competition agreement or any other agreement or arrangement that may limit or otherwise materially restrict the Company or any of its Subsidiaries or their respective Affiliates or any successor thereto, or that would, after the Effective Time, limit or restrict Buyer or any of its Affiliates (including the Surviving Corporation) or any successor thereto, from engaging or competing in any line of business currently engaged in, or proposed to be engaged in, by the Company or any of its Subsidiaries in any geographic area or with respect to any customer or potential customer. For purposes of this Agreement, the types of agreements or arrangements described in this Section 5.14(a) are collectively referred to as “Company Agreements.”
(b) Each of the Company Agreements is a valid and binding obligation of the Company or one of its Subsidiaries and, to the knowledge of the Company, the valid and binding obligation of each other party thereto, as applicable, and in full force and effect, and . Neither the Company and each Company Subsidiary has performed all obligations required nor any of its Subsidiaries is or is alleged to be performed by it under each such Company Agreement andnor, to the knowledge of the Company’s knowledge, each is any other party to each such thereto, in breach or violation of or in default in respect of, any Company Agreement has performed all obligations required to be performed by it under such Company AgreementAgreements, except as would notfor any breach, violation or default which would not reasonably be reasonably expected toto have, individually or in the aggregate, (1) prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. None of Effect on 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 Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities except for violations or defaults that would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. The Company has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all of the Company Material Contracts or other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities 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 or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contractsCompany.
Appears in 2 contracts
Sources: Merger Agreement (Omnicare Inc), Merger Agreement (Omnicare Inc)
Contracts. Except as filed as exhibits to the Company SEC Documents filed prior to the date hereof, or as disclosed in Section 3.13 of the Company Disclosure Schedule, there is no Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities (a) Neither Parent nor any of its Subsidiaries is a party to or bound by any contract, arrangement, commitment or understanding (whether written or oral) (i) with respect to the benefits to employment of any party directors, officers or employees other than in the ordinary course of which will be increasedbusiness consistent with past practices, (ii) which, upon the consummation or the vesting stockholder approval of the benefits to any party of which transactions contemplated by this Agreement, will be accelerated, by (either alone or upon the occurrence of any additional acts or events) result in any payment (whether of severance pay or otherwise) becoming due from Parent, Company, the Transactions Surviving Entity or the value of any of the benefits their respective Subsidiaries to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) director officer or (b) which, as of the date hereofemployee thereof, (iiii) which is a “"material contract” " (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC), (ii) involves aggregate expenditures in excess to be performed after the date of $50,000 per annum, (iii) involves aggregate expenditures in excess of $50,000 and was this Agreement that has not entered into been filed or incorporated by reference in the ordinary course of business, Parent SEC Documents filed prior to the date hereof or (iv) contains “take or pay” provisions applicable to the Company or any Company Subsidiary, (v) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to the Company, any Company Subsidiary or any of the Company’s current or future affiliates, or which materially restricts the conduct of any line of business by Parent or otherwise restricts the Company, any operation of the Company’s current business of Parent or future affiliates, any Company Subsidiary its Subsidiaries or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct business, in each case in any respect, (vi) would reasonably be expected to prohibit or materially delay the upon consummation of the Offer, Merger will materially restrict the Merger ability of Parent or the Surviving Entity to engage in any line of the other Transactions or (vii) is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded Assetbusiness. Each contract contract, arrangement, commitment or understanding of the type described in this Section 3.135.10, whether or not set forth in Section 3.13 of the Company Parent Disclosure ScheduleSchedule or in such Parent SEC Documents, is referred to herein as a “Company Material "Parent Contract”. ."
(b) (i) Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities Parent Contract is valid and binding on the Company Parent and each Company Subsidiary party thereto and, to the Company’s knowledge, each other any of its Subsidiaries that is a party thereto, as applicable, and in full force and effect, and the Company (ii) Parent and each Company Subsidiary of its Subsidiaries has in all material respects performed all obligations required to be performed by it to date under each such Company Agreement and, to the Company’s knowledge, each other party to each such Company Agreement has performed all obligations required to be performed by it under such Company AgreementParent Contract, except as would notwhere such noncompliance, or would not be reasonably expected to, either individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on Parent, and (1iii) prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of neither Parent nor any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. None of the Company or any Company Subsidiary Subsidiaries knows of, or has received notice of, the existence of any violation event or default under (or any condition which with the passage constitutes, or, after notice or lapse of time or both, will constitute, a material default on the giving part of notice would cause Parent or any of its Subsidiaries under any such a violation of or default under) any Company Agreement relating to the ADS BusinessParent Contract, the Acquired Assets or the Retained Liabilities except for violations or defaults that would notwhere such default, or would not be reasonably expected to, either individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in would not reasonably be expected to have a Company Material Adverse Effect. The Company has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all of the Company Material Contracts or other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities 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 or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contractsEffect on Parent.
Appears in 2 contracts
Sources: Merger Agreement (Bruker Daltonics Inc), Merger Agreement (Bruker Axs Inc)
Contracts. Except as filed as exhibits to the Company SEC Documents filed prior to the date hereof, or as disclosed in Section 3.13 of the Company Disclosure Schedule, there is no Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities (a) Section 4.14 of the Purchaser Disclosure Letter lists each of the following types of Contracts to which Purchaser or any of the benefits to any its Subsidiaries is a party of or by which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions their respective properties or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or (b) which, assets is bound as of the date hereof, :
(i) is any Contract that would be required to be filed by Purchaser as a “material contract” (as such term is defined in pursuant to Item 601(b)(10) of Regulation S-K of under the SEC), Securities Act or disclosed by Purchaser on a Current Report on Form 8-K;
(ii) involves aggregate expenditures any Contract that materially limits the ability of Purchaser or any of its Subsidiaries (or, following the consummation of the transactions contemplated by this Agreement, would limit the ability of Purchaser or any of their Subsidiaries, including Surviving Corporation) to compete in excess any material line of $50,000 per annumbusiness or with any Person or in any geographic area (other than as may be required by Law or any Governmental Entity) or which grants any right of first refusal, right of first offer or similar right or that limits or purports to limit the ability of Purchaser or any of its Subsidiaries (or, following consummation of the transactions contemplated hereby, Surviving Corporation) to own, operate, sell, transfer, pledge or otherwise dispose of any assets or business;
(iii) involves aggregate expenditures in excess any Contract for, with respect to, or that contemplates, a possible merger, consolidation, reorganization, recapitalization or other business combination, or asset sale or sale of $50,000 and was equity securities not entered into in the ordinary course of businessbusiness consistent with past practice, with respect to it or any of its Subsidiaries or any Contract which relates to a merger, consolidation, reorganization, recapitalization or other business combination, or asset sale or sale of equity securities and which contains representations, covenants, indemnities or other obligations (including indemnification, “earn-out” or other contingent obligations) that are still in effect;
(iv) contains “take or pay” provisions applicable any Contract relating to the Company borrowing of money by it or any Company Subsidiaryits Subsidiaries or the guarantee by it or any of its Subsidiaries of any such obligation of a third party (other than deposit liabilities and FHLB borrowings, Contracts pertaining to fully-secured repurchase agreements and Contracts relating to endorsements for payment, guarantees and letters of credit made in the ordinary course of business consistent with past practice), including any sale and leaseback transactions, capitalized leases and other similar financing transactions; and
(v) contains any non-compete Contract relating to a joint venture, partnership, limited liability company agreement or exclusivity provisions with respect to any line of business other similar agreement or geographic area with respect arrangement, or relating to the Companyformation, any Company Subsidiary creation or any of the Company’s current operation, management or future affiliates, or which restricts the conduct control of any line of business by the Company, any of the Company’s current partnership or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct businessjoint venture, in each case in case, with any respectthird parties, (vi) would reasonably be expected to prohibit or materially delay the consummation of the Offer, the Merger or any Contract which limits payments of the other Transactions or (vii) is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded Assetdividends. Each contract Contract of the type described in this Section 3.13, whether or not set forth in Section 3.13 of the Company Disclosure Schedule, clauses (i) through (v) is referred to herein as a “Company Purchaser Material Contract.”.
(b) (i) Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities Purchaser Material Contract is valid and binding on the Company Purchaser and each Company Subsidiary party thereto and, any of its Subsidiaries to the Company’s knowledge, each other extent such Subsidiary is a party thereto, as applicable, and to the knowledge of Purchaser, each other party thereto, and is in full force and effect and enforceable in accordance with its terms, except to the extent that validity and enforceability may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or similar Laws affecting the enforcement of creditors’ rights generally or by general principles of equity or by principles of public policy and except where the failure to be valid, binding, enforceable and in full force and effect, and the Company and each Company Subsidiary has performed all obligations required to be performed by it under each such Company Agreement and, to the Company’s knowledge, each other party to each such Company Agreement has performed all obligations required to be performed by it under such Company Agreement, except as would not, or would not be reasonably expected to, individually or in the aggregate, has not had a Purchaser Material Adverse Effect; and (1ii) prohibit or materially delay the consummation of the Offer, the Merger there is no default under any Purchaser Material Contract by Purchaser or any of its Subsidiaries or, to the knowledge of Purchaser, any other Transactionsparty thereto, (2) otherwise prevent and no event or materially delay performance by condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a default on the Company part of Purchaser or any of its material obligations Subsidiaries or, to the knowledge of Purchaser, any other party thereto under this Agreement or (3) result in a Company any such Purchaser Material Adverse Effect. None of the Company Contract, nor has Purchaser or any Company Subsidiary knows ofof its Subsidiaries received any written notice of any such default, event or condition, or has received notice ofof any termination or non-renewal of any Purchaser Material Contract, except where any violation such default, event or default under (condition, or any condition which with the passage of time such termination or the giving of notice would cause such a violation of or default under) any Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities except for violations or defaults that would not, or would not be reasonably expected tonon-renewal, individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in has not had a Company Purchaser Material Adverse Effect. The Purchaser has made available to Company has delivered a true and complete copy of any Purchaser Material Contracts, including any amendments thereto, to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all of the Company Material Contracts or other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities 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 or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contractsextent requested by Company.
Appears in 2 contracts
Sources: Merger Agreement (Hancock Holding Co), Merger Agreement (Whitney Holding Corp)
Contracts. Except as for Contracts filed as exhibits to UroCor's most recent annual report on Form 10-K or the Company most recent report on Form 10-Q filed with SEC Documents filed prior to the date hereof, or as disclosed set forth in Section 3.13 3.2(o) of the Company UroCor Disclosure Schedule, there is no Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities (a) any of the benefits to any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or (b) which, as of the date hereofof this Agreement, none of UroCor or any of its Subsidiaries is a party to or bound by, and none of their properties or assets are bound by or subject to, any written or oral:
(i) is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC), (ii) involves aggregate expenditures in excess of $50,000 per annum, (iii) involves aggregate expenditures in excess of $50,000 and was Contract not entered into made in the ordinary course of business;
(ii) Contract pursuant to which UroCor or any of its Subsidiaries has agreed not to compete with any Person or to engage in any activity or business, or pursuant to which any benefit is required to be given or lost as a result of so competing or engaging;
(iii) Contract pursuant to which UroCor or any of its Subsidiaries is restricted in any material respect in the development, marketing or distribution of their respective products or services;
(iv) contains “take Contract with (A) any affiliate of UroCor or pay” provisions applicable any of its Subsidiaries or (B) any current or former director or officer of UroCor or any of its Subsidiaries or of any affiliate of UroCor or any of its Subsidiaries or (C) any affiliate of any such Person (other than (w) contracts on arm's-length terms with companies whose common stock is publicly traded, (x) offer letters providing solely for "at will" employment, (y) invention assignment and confidentiality agreements relating to the Company assignment of inventions to UroCor or any Company Subsidiary, of its Subsidiaries not involving the payment of money and (z) UroCor Benefit Plans referred to in Section 3.2(r));
(v) contains any non-compete license or exclusivity provisions with respect to any line of business or geographic area with respect to the Company, any Company Subsidiary franchise granted by UroCor or any of the Company’s current or future affiliates, or its Subsidiaries pursuant to which restricts the conduct of any line of business by the Company, any of the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary UroCor or any of the Company’s current its Subsidiaries has agreed to refrain from granting license or future affiliates may conduct businessfranchise rights to any other Person;
(vi) Contract under which UroCor or any of its Subsidiaries has incurred any indebtedness that is currently owing or given any guarantee in respect of indebtedness, in each case having an aggregate principal amount in excess of $100,000, or granted any pledge, mortgage or other security interest in any respect, property or assets of UroCor or any of its Subsidiaries;
(vivii) would reasonably be expected Contract that is material to prohibit or materially delay the consummation conduct of the Offerbusiness of UroCor and its Subsidiaries that requires consent, approval or waiver of or notice to a third party in the event of or with respect to the Merger or any of the other Transactions transactions contemplated by this Agreement, including in order to avoid termination of or a loss of material benefit under any such Contract;
(viii) Contract or other agreement, whether written or oral, that contains any guarantees as to UroCor or any of its Subsidiaries' future revenues;
(ix) Contract granting a third party any license to Intellectual Property Rights that is not limited to the internal use of such third party;
(x) Contract in respect of any joint venture, partnership, business alliance or similar arrangement between UroCor or any of its Subsidiaries and any third party;
(xi) except for the Confidentiality Agreement, Contract providing for a "standstill" or for confidential treatment by UroCor or any of its Subsidiaries of third party information other than non-disclosure agreements and provisions entered into by UroCor in the ordinary course of business consistent with past practice;
(xii) Contract granting the other party to such Contract or a third party "most favored nation" status that, following the Merger, would in any way apply to Dianon or any of its Subsidiaries (other than UroCor and its Subsidiaries and their products or services); or
(xiii) Contract which (i) has aggregate future sums due from UroCor or any of its Subsidiaries in excess of $100,000 and is not terminable by UroCor or any such subsidiary for a cost of less than $100,000 or (viiii) is necessary for otherwise material to the conduct business of the ADS Business UroCor and its Subsidiaries, taken as currently a whole, as presently conducted but constitutes an Excluded Assetor as proposed to be conducted. Each contract Contract of the type described UroCor and its Subsidiaries is in this Section 3.13full force and effect and is a legal, whether or not set forth in Section 3.13 of the Company Disclosure Schedule, is referred to herein as a “Company Material Contract”. Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities is valid and binding on the Company and each Company Subsidiary party thereto agreement of UroCor or such subsidiary and, to the Company’s knowledgeknowledge of UroCor or such subsidiary, of each other party thereto, enforceable against UroCor or any of its Subsidiaries, as applicablethe case may be, and and, to the knowledge of UroCor, against the other party or parties thereto, in each case, in accordance with its terms, except for such failures to be in full force and effect, effect or enforceable that individually or in the aggregate have not had and the Company would not reasonably be expected to have a Material Adverse Effect on UroCor. Each of UroCor and each Company Subsidiary its Subsidiaries has performed or is performing all obligations required to be performed by it under each such Company Agreement its Contracts and is not (with or without notice or lapse of time or both) in breach or default in any respect thereunder, and, to the Company’s knowledgeknowledge of UroCor or such subsidiary, each no other party to any of its Contracts is (with or without notice or lapse of time or both) in breach or default in any respect thereunder except, in each case, for such Company Agreement has performed all obligations required to be performed by it under such Company Agreement, except as would not, or would not be reasonably expected to, breaches that individually or in the aggregate, (1) prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in aggregate have not had and would not reasonably be expected to have a Company Material Adverse Effect. 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 Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities except for violations or defaults that would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. The Company has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all of the Company Material Contracts or other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities 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 or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contractsEffect on UroCor.
Appears in 2 contracts
Sources: Merger Agreement (Dianon Systems Inc), Merger Agreement (Urocor Inc)
Contracts. Except as filed as exhibits to the Company SEC Documents filed prior to the date hereof, or as disclosed in Section 3.13 of the Company Disclosure Schedule, there is no Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities (a) any of the benefits to any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or (b) which, as As of the date hereof, neither the Company nor any of its Subsidiaries is a party to, and none of their respective properties or other assets is subject to, any Contract that is of a nature required to be filed as an exhibit to a report or filing under the Securities Act or the Exchange Act, other than any Contract that is filed as an exhibit to the Filed Company SEC Documents.
(b) Except for Contracts filed in unredacted form as exhibits to the Filed Company SEC Documents, Section 3.10(b) of the Company Disclosure Letter sets forth a correct and complete list as of the date of this Agreement, and the Company has made available to Parent correct and complete copies (including all amendments, modifications, extensions, renewals, guaranties or other Contracts with respect thereto, but excluding certain names, terms and conditions that have been redacted in compliance with applicable Laws governing the sharing of information or otherwise), of:
(i) is a “material contract” all Contracts (as such term is defined other than Contracts of the category required to be disclosed in Item 601(b)(10clause (xiv), clause (xv) or clause (xvi) of Regulation S-K this Section 3.10(b), regardless of value) of the SEC)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 $750,000 on an annual basis;
(ii) involves aggregate expenditures all Contracts to which the Company or any of its Subsidiaries is a party, or by which the Company, any of its Subsidiaries or any of its Affiliates is bound, that contain a covenant restricting the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, would restrict the ability of Parent or any of its Subsidiaries, including the Surviving Entity and its Subsidiaries) to compete in excess of $50,000 per annum, any business or with any person or in any geographic area;
(iii) involves all Contracts of the Company or any of its Subsidiaries with any Affiliate 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, and (B) other license (other than real estate) having an aggregate expenditures value per license, or involving payments by the Company or any of its Subsidiaries, of more than $750,000 on an annual basis;
(v) all confidentiality agreements (other than in excess 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 $50,000 and was not 750,000 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 joint venture, profit sharing, partnership or other similar agreements involving co-investment with a third party to which the Company or any of its Subsidiaries is a party (other than any such profit sharing or similar agreements entered into in the ordinary course of business);
(viii) any Contract or order with or from a Governmental Authority (other than ordinary course Contracts with Governmental Authorities as a customer or as a Provider) which imposes any material obligation or restriction on the Company or its Subsidiaries;
(ix) all leases, (iv) contains “take subleases, licenses or pay” provisions applicable other Contracts pursuant to which the Company or any of its Subsidiaries use or hold any material property involving payments by or to the Company or any of its Subsidiaries of more than $750,000 on an annual basis;
(x) all material outsourcing Contracts;
(xi) all Contracts with investment bankers, financial advisors, attorneys, accountants or other advisors retained by the Company Subsidiaryor any of its Subsidiaries involving payments to be made by or to the Company or any of its Subsidiaries after the date of this Agreement of more than $750,000 on an annual basis;
(xii) all Contracts providing for the indemnification by the Company or any of its Subsidiaries of any person, except for any such Contract that is not material to the Company or any of its Subsidiaries;
(vxiii) contains all Contracts pursuant to which any non-compete indebtedness of the Company or exclusivity provisions any of its Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of its Subsidiaries of any indebtedness of any other person (other than the Company or any of its Subsidiaries) (except for such indebtedness or guarantees the aggregate principal amount of which does not exceed $750,000 on an annual basis and excluding trade payables arising in the ordinary course of business);
(i) the largest Contracts of the Company and its Subsidiaries with facilities and capitated Providers (including hospitals and medical groups) in the states of California, Texas, Arizona and Colorado (measured in terms of total projected payments by the Company and its Subsidiaries during the year ending December 31, 2005) that, in the aggregate, represent at least 60% of the total projected 2005 payments by the Company and its Subsidiaries to such Providers in each of such states and (ii) the largest Contracts of the Company and its Subsidiaries with such Providers in the states of Oklahoma, Oregon, Nevada and Washington (measured in terms of total projected payments by the Company and its Subsidiaries during the year ending December 31, 2005) that, in the aggregate, represent at least 50% of the total projected 2005 payments by the Company and its Subsidiaries to such Providers in each of such states (collectively, the "Largest Provider Contracts");
(xv) Contracts of the Company and its Subsidiaries with the 20 largest customers in California and the 10 largest customers in the Other Core States in the aggregate (in each case measured in terms of total projected payments to the Company and its Subsidiaries during the year ending December 31, 2005) (the "Largest Customer Contracts");
(xvi) Contracts of the Company and its Subsidiaries with the 20 largest brokers, the 10 largest general agents and the largest broker for American Medical Security Group, Inc. (measured in terms of total projected payments by the Company and its Subsidiaries during the year ending December 31, 2005) (the "Largest Broker Contracts");
(xvii) any Contract with respect to any line of business risk sharing or geographic area with respect risk transfer arrangement or that provides for a retroactive premium or similar adjustment or withholding arrangement, pursuant to the Companyterms of which an adjustment, premium, payment or arrangement is reasonably expected to result therefrom in an amount of $750,000 or more;
(xviii) any Company Subsidiary Contract or policy for reinsurance with third parties;
(xix) any demonstration or pilot or other material Contract with the Centers for Medicare and Medicaid Services ("CMS") or any successor thereto; and
(xx) any Contract with the Office of the Company’s current or future affiliatesPersonnel Management, or which restricts the conduct of any line of business by the Company, any of the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct business, in each case in any respect, successor thereto.
(vii) would reasonably be expected to prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions or (vii) is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded Asset. Each contract of the type described in this Section 3.13, whether or not set forth in Section 3.13 of the Company Disclosure Schedule, is referred to herein as a “Company Material Contract”. Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities is valid and binding on the Company and each Company Subsidiary party thereto and, to the Company’s knowledge, each other party thereto, as applicable, and in full force and effect, and the Company and each Company Subsidiary has performed all obligations required to be performed by it under each such Company Agreement and, to the Company’s knowledge, each other party to each such Company Agreement has performed all obligations required to be performed by it under such Company Agreement, except as would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. None of the Company or any Company Subsidiary knows ofof its Subsidiaries (x) is, or has received written notice ofor has Knowledge that any other party to any of its Contracts is, any in violation or breach of or default under (with or any condition which with the passage without notice or lapse of time or both) under, or (y) has waived or failed to enforce any rights or benefits under, any Contract to which it is a party or any of its properties or other assets is subject, and (ii) to the Knowledge of the Company, there has occurred no event giving to others any right of termination, amendment or cancellation of (with or without notice would cause such a violation or lapse of time or default underboth) any Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities such Contract except for violations violations, breaches, defaults, waivers or defaults failures to enforce rights or benefits covered by clauses (i) or (ii) above that would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in aggregate have not had and would not reasonably be expected to have a Company Material Adverse Effect. The Company has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all of the Company Material Contracts or other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities 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 or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contracts.
Appears in 2 contracts
Sources: Merger Agreement (Unitedhealth Group Inc), Merger Agreement (Pacificare Health Systems Inc /De/)
Contracts. Except as filed as exhibits to the Company SEC Documents filed prior to the date hereof, or as disclosed in Section 3.13 Schedule 6.05 of the Company Elan Disclosure Schedule, there is no Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities Schedule sets forth a complete and correct list of: (a) any each EPI Contract that relates to the research, development, exploitation, licensing, use, importation, promotion, marketing, sale or distribution of the benefits to any party of which will be increasedProducts and provides for aggregate annual payments, or the vesting has a value in excess, of the benefits to any party $25,000; Certain portions of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed this Exhibit have been omitted pursuant to Section 3.11) or a request for confidentiality. Such omitted portions, which are marked with brackets [ ] and an asterisk*, have been separately filed with the Commission. and (b) which, as of the date hereof, (i) is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC), (ii) involves aggregate expenditures in excess of $50,000 per annum, (iii) involves aggregate expenditures in excess of $50,000 and was not entered into in the ordinary course of business, (iv) contains “take or pay” provisions applicable to the Company or any Company Subsidiary, (v) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to the Company, any Company Subsidiary or any of the Company’s current or future affiliates, or which restricts the conduct of any line of business by the Company, any of the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct business, in each case in any respect, (vi) would reasonably be expected to prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions or (vii) is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded Asset. Each contract of the type described in this Section 3.13, whether or not set forth in Section 3.13 of the Company Disclosure Schedule, is referred to herein as a “Company Material Contract”. Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities is valid and binding on the Company and each Company Subsidiary party thereto and, to the Company’s knowledge, each other party theretoEPI Contract that, as applicable, and if such Contract were to be terminated or otherwise no longer in full force and effect, and the Company and each Company Subsidiary has performed all obligations required to be performed by it under each such Company Agreement and, to the Company’s knowledge, each other party to each such Company Agreement has performed all obligations required to be performed by it under such Company Agreement, except as would not, have or would not reasonably be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in to have a Company Material Adverse Effect. 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 Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities except for violations or defaults that would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. The Company EPI has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, Acquiror complete and correct copies of all such EPI Contracts and all Assumed Contracts; including all amendments, exhibits, appendices and annexes thereto. Except as would not have a Material Adverse Effect, (a) each of the Company Material Assumed Contracts is in full force and effect and constitutes a legal, valid and binding agreement of EPI or other Company Agreements its Affiliate, as applicable, and is enforceable in accordance with its terms by EPI or its Affiliate, as applicable, except as such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting generally the ADS Businessenforcement of creditors’ rights and (ii) the availability of equitable remedies (whether in a proceeding in equity or at law), the Acquired Assets or the Retained Liabilities required to be disclosed in Section 3.13 and (b) EPI-and its Affiliates have performed all of the Company Disclosure Scheduletheir obligations under each Assumed Contract, which are not filed as exhibits and neither EPI nor any of its Affiliates, nor, to the Company SEC Documents and the Company Material Contracts Knowledge of EPI, any third party to any Assumed Contract, has violated or other Company Agreements required to be disclosed in Section 3.13 breached, or declared or committed any Default under, any Assumed Contract. Neither EPI nor any of the Company Disclosure Schedule filed as exhibits its Affiliates have received any written notice or, to the Company SEC Documents are trueKnowledge of EPI, any other communication regarding any actual, alleged, possible or potential violation or breach of, or default under, any Assumed Contract. EPI has delivered to the Acquiror complete and correct copies of all Multi-Product Contracts, including all amendments, exhibits, appendices and annexes thereto; provided, that such contractscopies may have been redacted to prevent disclosure of information not related to any of the Products.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Acorda Therapeutics Inc), Asset Purchase Agreement (Acorda Therapeutics Inc)
Contracts. Except as filed as exhibits to the Company SEC Documents filed prior to the date hereof, or as disclosed in Section 3.13 of the Company Disclosure Schedule, there is no Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities (a) any of the benefits to any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or (b) which, as As of the date hereofof this Agreement, except as set forth as an exhibit to the Parent SEC Documents and on Section 4.11(a) of the Parent Disclosure Letter, neither Parent nor any of its Subsidiaries is a party to or bound by any:
(i) is 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 “material contract” wholly-owned Subsidiary of Parent) in excess of $4,000,000;
(ii) Non-competition agreements or any other agreements or arrangements that materially limit or otherwise materially restrict Parent or any of its Subsidiaries or any of their respective Affiliates or any successor thereto or that, to Parent’s Knowledge, would, after the Effective Time, limit or restrict Parent or any of its Subsidiaries (including the Surviving Corporation) or any successor thereto, in each case from engaging or competing in any line of business or in any geographic area, which agreement or arrangements would reasonably be expected to materially limit, materially restrict or materially conflict with the business of Parent and its Subsidiaries, taken as a whole (including for purposes of such term is defined in determination, the Surviving Corporation and its Subsidiaries), after giving effect to the Merger;
(iii) Contracts required to be filed as an exhibit to Parent’s Annual Report on Form 10-K pursuant to Item 601(b)(10) of Regulation S-K of under the SEC), (ii) involves aggregate expenditures in excess of $50,000 per annum, (iii) involves aggregate expenditures in excess of $50,000 and was not entered into in the ordinary course of business, Securities Act;
(iv) contains “take or pay” provisions applicable to the Company Contracts, including Parent Oil and Gas Agreements, where Parent or any Company Subsidiary, of its Subsidiaries has received or expects to receive $4,000,000 or more in revenues pursuant to such agreements in the current fiscal year;
(v) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area Contracts with respect to the Companyreceipt of any goods and services involving a payment of $4,000,000 or more in the current fiscal year;
(vi) Joint venture, alliance, partnership or limited liability company agreements or similar Contracts relating to the formation, creation, operation, management or control of any Company Subsidiary joint venture, alliance, partnership or limited liability company that (A) is material to Parent, its Subsidiaries or any of the Company’s current or future affiliates, or which restricts the conduct Oil and Gas Properties of any line of business by the Company, any of the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary Parent or any of the Company’s current its Subsidiaries; (B) is material to any investment in, or future affiliates may conduct businessother commitment to, in each case in any respect, Related Entity of Parent; or (viC) would reasonably be expected to prohibit require Parent or its Subsidiaries to make expenditures in excess of $4,000,000 or more per annum; or
(vii) Contracts that would prevent, materially delay or materially delay impede the consummation of the Offer, the Merger transactions contemplated by this Agreement.
(b) All Contracts to which Parent or any of the other Transactions its Subsidiaries is a party to or (vii) is necessary for the conduct bound by as of the ADS Business as currently conducted but constitutes an Excluded Asset. Each contract date of this Agreement that are either (i) of the type described in this Section 3.13, whether clause (a) above or not set forth in Section 3.13 (ii) material Parent Oil and Gas Agreements relating to Oil and Gas Properties of the Company Disclosure Schedule, is Parent and its Subsidiaries are referred to herein as the “Parent Material Contracts.” Except, in each case, as has not, and would not reasonably be expected to have, individually or in the aggregate, a “Company Parent Material Contract”. Each Company Agreement relating to the ADS BusinessAdverse Effect, the Acquired Assets or the Retained Liabilities is (i) all Parent Material Contracts are valid and binding on Parent and/or the Company and each Company relevant Subsidiary of Parent that is a party thereto and, to the CompanyParent’s knowledgeKnowledge, each other party thereto, as applicablesubject to the Bankruptcy and Equity Exception, and (ii) all Parent Material Contracts are in full force and effect, and the Company (iii) Parent and each Company Subsidiary of its Subsidiaries has performed all material obligations required to be performed by it them under each such Company Agreement andthe Parent Material Contracts to which they are parties, (iv) to the CompanyParent’s knowledgeKnowledge, each other party to each such Company Agreement a Parent Material Contract has performed all material obligations required to be performed by it under such Company Agreement, except as would not, or would not be reasonably expected to, individually or in the aggregate, Parent Material Contract and (1v) prohibit or materially delay the consummation of the Offer, the Merger no party to any Parent Material Contract has given Parent or any of its Subsidiaries written notice of its intention to cancel, terminate, change the other Transactions, (2) otherwise prevent scope of rights under or materially delay performance by the Company of fail to renew any Parent Material Contract and neither Parent nor any of its Subsidiaries, nor, to Parent’s Knowledge, any other party to any Parent Material Contract, has repudiated in writing any material obligations under this Agreement or (3) result in a Company Material Adverse Effectprovision thereof. None Neither Parent nor any of the Company or any Company Subsidiary knows its Subsidiaries has Knowledge of, or has received written notice of, any violation of 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 or permit termination, modification or acceleration under) any Company Agreement relating Parent Material Contract or any other Contract to the ADS Businesswhich Parent or any of its Subsidiaries is a party or by which Parent, the Acquired Assets any of its Subsidiaries or the Retained Liabilities any of their respective material properties or assets is bound, except for violations or defaults that would are not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) reasonably likely to result in a Company Parent Material Adverse Effect. The Company has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all of the Company Material Contracts or other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities 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 or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contracts.
Appears in 2 contracts
Sources: Merger Agreement (Contango Oil & Gas Co), Merger Agreement (Crimson Exploration Inc.)
Contracts. Except as filed as exhibits The JV is not a party to any contracts other than the JV Agreement. All of the Contracts that are material to the Company SEC Documents filed prior to the date hereof, or as disclosed in Section 3.13 business of the Company Disclosure ScheduleEntities or their Subsidiaries, taken as a whole, are listed on Schedule 4.7, with the exception of interests in real property and construction contracts and master services agreements or purchase orders entered into in the Ordinary Course of Business and retained by MIDSTREAM as operator of the Assets. The Entities and their Subsidiaries are not in default and there is no Company Agreement relating event or circumstance that with notice, or lapse of time or both, would constitute an event of default by the applicable Entity or Subsidiary under the terms of the Contracts. All of the Contracts of the Entities and their Subsidiaries are in full force and effect and to HOLDINGS’ and MIDSTREAM’S Knowledge, no counter-party to any of the ADS Business, Contracts is in default under the Acquired Assets terms of such Contracts. Schedule 4.7 lists each Contract to which the Entitles or the Retained Liabilities their Subsidiaries are a party that:
(a) any expressly obligates an Entity to pay an amount of $500,000 (to the benefits to any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11100% Subject Interests) or (b) which, more and has not been fully performed as of the date hereof;
(b) expressly restricts the ability of an Entity or its Subsidiaries to compete or otherwise to conduct its business in any manner or place;
(c) provides for the sale of products or the provision of services (for a term greater than a year) for amounts in excess of $500,000 (to the 100% Subject Interests and including outstanding offers or quotes which by acceptance would create such a Contract) and which have not been fully performed as of the date hereof;
(d) provides a right of first refusal or other restrictive right that limits the ability to transfer, sell or assign an interest in the Assets or an equity interest in the Entities or any Subsidiary;
(e) is a master agreement, swap, derivative, option, future or similar type Contract or any open agreement or position thereunder;
(f) is with any current or former employee, officer, director or consultant of HOLDINGS or an Entity, their Subsidiaries or their respective Affiliates;
(g) is an inter-company agreement;
(h) is with any labor union or association;
(i) is a “material contract” partnership or joint venture agreement with a Third Person in which the Entities or their Subsidiaires is a party or by which any of them are bound;
(as such term j) is defined in Item 601(b)(10) of Regulation S-K of the SEC), (ii) involves aggregate expenditures an agreement with a consideration in excess of $50,000 per annum500,000 (to the 100% Subject Interests) by an Entity or its Subsidiaries to purchase or sell any assets (other than inventory in the Ordinary Course of Business), businesses, capital stock or other debt or equity securities of any Person and which have not been fully preformed as of the date hereof; or
(iiik) involves aggregate expenditures is an agreement with a consideration in excess of $50,000 and was not entered into in the ordinary course of business, 500,000 (iv) contains “take or pay” provisions applicable to the Company 100% Subject Interests) involving the merger, consolidation, purchase, sale, transfer or other disposition of interests in real property, capital stock or other debt or equity securities of any Company Subsidiary, (v) contains any non-compete or exclusivity provisions with respect Person prior to any line of business or geographic area with respect to the Company, any Company Subsidiary or any Closing and which have not been fully preformed as of the Company’s current or future affiliates, or which restricts the conduct of any line of business by the Company, any of the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct business, in each case in any respect, (vi) would reasonably be expected to prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions or (vii) is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded Asset. Each contract of the type described in this Section 3.13, whether or not set forth in Section 3.13 of the Company Disclosure Schedule, is referred to herein as a “Company Material Contract”. Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities is valid and binding on the Company and each Company Subsidiary party thereto and, to the Company’s knowledge, each other party thereto, as applicable, and in full force and effect, and the Company and each Company Subsidiary has performed all obligations required to be performed by it under each such Company Agreement and, to the Company’s knowledge, each other party to each such Company Agreement has performed all obligations required to be performed by it under such Company Agreement, except as would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. 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 Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities except for violations or defaults that would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. The Company has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all of the Company Material Contracts or other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities 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 or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contractsdate hereof.
Appears in 2 contracts
Sources: Contribution Agreement, Contribution Agreement (DCP Midstream Partners, LP)
Contracts. (a) Neither the Company nor any of its Subsidiaries is a party to, and none of their respective properties or other assets is subject to, any Contract that is of a nature required to be filed as an exhibit to a report or filing under the Securities Act or the Exchange Act, other than any Contract that is filed as an exhibit to the Filed Company SEC Documents.
(b) Except as for Contracts filed in unredacted form as exhibits to the Filed Company SEC Documents filed prior to the date hereofDocuments, or as disclosed in Section 3.13 3.10(b) of the Company Disclosure Schedule, there is no Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities (a) any of the benefits to any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or (b) which, Schedule sets forth a correct and complete list as of the date hereofof this Agreement, and the Company has made available to Parent correct and complete copies (including all amendments thereto), of:
(i) is a “material contract” all Contracts (as such term is defined other than Contracts of the category required to be disclosed in Item 601(b)(10either clause (ix) or clause (x) of Regulation S-K this Section 3.10(b), regardless of value) of the SEC)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 $500,000 on an annual basis;
(ii) involves aggregate expenditures all Contracts to which the Company or any of its Subsidiaries is a party, or by which the Company, any of its Subsidiaries or any of its Affiliates is bound, that contain a covenant restricting the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, would restrict the ability of Parent or any of its Subsidiaries, including the Surviving Entity and its Subsidiaries) to compete in excess of $50,000 per annum, any business or with any person or in any geographic area;
(iii) involves aggregate expenditures in excess of $50,000 and was not all Contracts (other than Contracts entered into in the ordinary course of businessbusiness with all providers of health care, including, but not limited to, physicians, facilities and ancillary providers (each a "Provider")) of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(iv) contains “take all Contracts to which the Company or pay” provisions applicable any of its Subsidiaries is a party granting any license to intellectual property (other than trade and service marks) and any other license (other than real estate) having an aggregate value per license, or involving payments to the Company or any Company Subsidiaryof its Subsidiaries, of more than $500,000 on an annual basis;
(v) contains all confidentiality agreements (other than 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 non-compete Contract having an aggregate value per Contract, or exclusivity provisions with respect involving payments by or to the Company or any line of business its Subsidiaries, of more than $500,000 on an annual basis that requires consent of or geographic area notice to a third party in the event of or with respect to the CompanyMerger, including in order to avoid termination of or loss of benefit under any such Contract;
(vii) all joint venture, partnership or other similar agreements involving co-investment with a third party to which the Company Subsidiary or any of the Company’s current or future affiliates, or which restricts the conduct of any line of business by the Company, any of the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct business, in each case in any respect, its Subsidiaries is a party;
(viviii) would reasonably be expected to prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions or (vii) is necessary for the conduct of the ADS Business except as currently conducted but constitutes an Excluded Asset. Each contract of the type described in this Section 3.13, whether or not set forth in Section 3.13 3.03, all Contracts pursuant to which any indebtedness of the Company Disclosure Schedule, or any of its Subsidiaries is referred outstanding or may be incurred and all guarantees of or by the Company or any of its Subsidiaries of any indebtedness of any other person (other than the Company or any of its Subsidiaries) (except for such indebtedness or guarantees the aggregate principal amount of which does not exceed $500,000 on an annual basis and excluding trade payables arising in the ordinary course of business);
(ix) the 25 largest Provider and the ten largest customer Contracts measured in terms of payments to herein as a “Company Material Contract”. Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities is valid and binding on receipts from the Company and each Company Subsidiary party thereto and, to the Company’s knowledge, each other party thereto, as applicable, and in full force and effect, and the Company and each Company Subsidiary has performed all obligations required to be performed by it under each such Company Agreement and, to the Company’s knowledge, each other party to each such Company Agreement has performed all obligations required to be performed by it under such Company Agreement, except as would not, or would not be reasonably expected to, individually or its Subsidiaries in the aggregateaggregate during the calendar year ending December 31, 2002;
(x) any Contract (other than a Contract with a Provider) that involves (1) prohibit annual premiums or materially delay the consummation payments of the Offer, the Merger greater than $500,000 or any annual administrative services fees or similar payments of the other Transactions, greater than $500,000 and (2) otherwise prevent by its terms, does not terminate within one year after the date of such Contract and is not cancelable during such period without penalty or materially delay performance by without payment (other than customer agreements that are not terminable within one year solely as a result of the Company of Health Insurance Portability and Accountability Act and the regulations promulgated thereunder (including 45 C.F.R. parts 160, 162, and 164) or other statutory or regulatory requirements); and
(xi) any of its material obligations under this Agreement Contract, agreement or policy for reinsurance.
(3c) result in a Company Material Adverse Effect. None of the Company or any Company Subsidiary knows ofof its Subsidiaries is, or has received written notice ofor has Knowledge that any other party to any of its Contracts is, any in violation or breach of or default under (with or any condition which with the passage 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 any of its properties or other assets is subject, and, to the Knowledge of the Company, there has occurred no event giving to others any right of termination, amendment or cancellation of (with or without notice would cause such a violation or lapse of time or default underboth) any Company Agreement relating such Contract except, in each case for violations, breaches, defaults, waivers or failures to the ADS Business, the Acquired Assets enforce rights or the Retained Liabilities except for violations or defaults benefits that would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in aggregate have not had and would not reasonably be expected to have a Company Material Adverse Effect. The Company has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all of the Company Material Contracts or other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities 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 or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contracts.
Appears in 2 contracts
Sources: Merger Agreement (Mid Atlantic Medical Services Inc), Merger Agreement (Unitedhealth Group Inc)
Contracts. (a) Except as for this Agreement and except for Contracts filed as exhibits to the Company SEC Documents filed prior to the date hereof, or as disclosed in Section 3.13 of the Company Disclosure Schedule, there is no Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities (a) any of the benefits to any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or (b) whichReports, as of the date hereofof this Agreement, none of Parent or any of its Subsidiaries is not a party to or bound by any Contract: (i) is that would be required to be filed by BioLite as a “material contract” (as such term is defined in pursuant to Item 601(b)(10) of Regulation S-K of under the SEC), Securities Act; (ii) involves aggregate expenditures in excess of $50,000 per annum, (iii) involves aggregate expenditures in excess of $50,000 and was not entered into in the ordinary course of business, (iv) contains “take or pay” provisions applicable to the Company or any Company Subsidiary, (v) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to the Company, any Company Subsidiary covenants binding upon Parent or any of its Subsidiaries that restrict the Company’s current or future affiliates, or which restricts the conduct ability of any line of business by the Company, any of the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary Parent or any of the Company’s current its Subsidiaries (or future affiliates may conduct businesswhich, in each case in any respect, (vi) would reasonably be expected to prohibit or materially delay following the consummation of the OfferMergers, would materially restrict the Merger ability of Parent or any Parent Affiliate) to compete in any business or geographic area; or (iii) involving the payment or receipt of royalties or other amounts of more than $10,000 related to any product of Parent or any Parent Affiliate , or (iv) that would prevent, materially delay or materially impede Parent’s ability to consummate the Mergers or the other transactions contemplated by this Agreement. Each such Contract described in clauses (i) through (iii) as well as each Contract listed in Section 5.17(a) of the other Transactions or (vii) is necessary for the conduct Parent Schedule of the ADS Business as currently conducted but constitutes an Excluded Asset. Each contract of the type described in this Section 3.13, whether or not set forth in Section 3.13 of the Company Disclosure Schedule, Exceptions is referred to herein as a “Company Parent Material Contract”. .
(b) Each Company Agreement relating to of the ADS Business, the Acquired Assets or the Retained Liabilities Parent Material Contracts is valid and binding on Parent or the Company and each Company applicable Subsidiary party thereto of Parent, as the case may be, and, to the Company’s knowledgeKnowledge of Parent, each other party thereto, as applicable, thereto and is in full force and effect, and the Company and each Company Subsidiary has performed all obligations required except for such failures to be performed by it under each such Company Agreement and, to the Company’s knowledge, each other party to each such Company Agreement has performed all obligations required valid and binding or to be performed by it under such Company Agreement, except in full force and effect as would not, or would not reasonably be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in have a Company Parent Material Adverse Effect. None of the Company There is no default under any Parent Material Contract by Parent or any Company Subsidiary knows of, or of its Subsidiaries and no event has received notice of, any violation or default under (or any condition which occurred that with the passage lapse of time or the giving of notice or both would cause such constitute a violation default thereunder by Parent or any of or default under) any Company Agreement relating to the ADS Businessits Subsidiaries, the Acquired Assets or the Retained Liabilities in each case except for violations or defaults that as would not, or would not reasonably be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in have a Company Parent Material Adverse Effect. The Company has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all of the Company Material Contracts or other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities 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 or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contracts.
Appears in 2 contracts
Sources: Merger Agreement (American BriVision (Holding) Corp), Agreement and Plan of Merger (American BriVision (Holding) Corp)
Contracts. Except as filed as exhibits to the Company SEC Documents filed prior to the date hereof, or as disclosed set forth in Section 3.13 3.14 of the --------- Company Disclosure Schedule, each Company Agreement is valid, binding and enforceable and is in full force and effect, except where any failures, individually or in the aggregate, to be valid, binding and enforceable and in full force and effect would not be reasonably likely to have a Company Material Adverse Effect, and there are no defaults thereunder, except those defaults that would not, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect. Section 3.14 of the Company Disclosure ScheduleSchedule sets forth a true and complete list as of the date hereof of (each, there is no a "Material Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities Agreement"): --------------------------
(a) any agreement required to be filed as an Exhibit to an Annual Report on Form 10-K of the benefits to any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed Company pursuant to Section 3.11) or (b) which, as of the date hereof, (i) is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SECSecurities Act), (ii) involves aggregate expenditures in excess of $50,000 per annum, (iii) involves aggregate expenditures in excess of $50,000 and was not entered into in the ordinary course of business, (iv) contains “take or pay” provisions applicable to by the Company or any Company SubsidiarySubsidiary since December 31, (v) contains any non-compete or exclusivity provisions with respect 2000 and all amendments to any line of business or geographic area with respect such Company Agreements included as an exhibit to the Company, any Company Subsidiary or any of the Company’s current or future affiliates, or which restricts the conduct of any line of business by the Company, any of the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct business, in each case in any respect, (vi) would reasonably be expected to prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions or (vii) is necessary 's Annual Report on Form 10-K for the conduct of the ADS Business as currently conducted but constitutes an Excluded Asset. Each contract of the type described in this Section 3.13fiscal year ended December 31, whether 2000;
(b) all non-competition or not set forth in Section 3.13 of the Company Disclosure Schedule, is referred to herein as a “Company Material Contract”. Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities is valid and binding similar agreements imposing restrictions on the Company and each Company Subsidiary party thereto and, to the Company’s knowledge, each other party thereto, as applicable, and in full force and effect, and the Company and each Company Subsidiary has performed all obligations required to be performed by it under each such Company Agreement and, to the Company’s knowledge, each other party to each such Company Agreement has performed all obligations required to be performed by it under such Company Agreement, except as would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. None ability of the Company or any Company Subsidiary knows of, or has received notice of, to conduct any violation or default under business (or the manner in which any condition which with the passage of time them may conduct business) in any jurisdiction or the giving of notice would cause such a violation of or default underterritory;
(c) any Company Agreement in effect as of the date hereof (i) for the supply of published fare airline tickets, including any agreements relating to commissions (normal, override or other) payable in respect of the ADS Businesssale of such airline tickets, (ii) for the Acquired Assets supply of net fare or opaque fare airline tickets (as to which there are no agreements to pay to the Retained Liabilities except Company any commissions) which contain any restrictions on the manner in which the Company sells such tickets (other than restrictions which (x)(A) require the sale of such tickets together with other products, (B) require such tickets to be sold opaquely or (C) do not permit the sale of such tickets on the internet, and (y) have not been agreed to for violations a period of more than two months) and (iii) relating to global distribution services;
(d) any Company Agreement that requires the Company to conduct business exclusively with one or defaults more Persons in any particular geographic area or with respect to any particular product or service and that would not, or would cannot be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance canceled by the Company within 60 days following notice thereof without the payment of any of its material obligations under this Agreement or penalty;
(3e) result in a Company Material Adverse Effect. The Company has delivered to the Purchaser or provided to the Purchaser for reviewindentures, prior to the execution of this Agreementcredit agreements, truesecurity agreements, complete mortgages, guarantees and correct copies of all of the Company Material Contracts or promissory notes, and other Company Agreements relating to the ADS Business, the Acquired Assets borrowing of money or the Retained Liabilities required to be disclosed lending of money by the Company or any Company Subsidiary involving amounts in excess of $100,000 individually or, other than in respect of the mortgage set forth in Section 3.13 3.14 of the Company Disclosure Schedule, $250,000 in the aggregate;
(f) partnership, joint venture and similar agreements;
(g) bonds or agreements of guarantee or indemnification in which are not filed as exhibits to the Company SEC Documents or any Company Subsidiary acts as surety, guarantor or indemnitor with respect to any obligation (fixed or contingent) in excess of $50,000 individually or $250,000 in the aggregate and that cannot be terminated by the Company Material Contracts or any Company Subsidiary within 60 days following notice thereof without the payment of a material penalty, other Company Agreements required than any of the foregoing relating to be disclosed in Section 3.13 obligations of the Company Disclosure Schedule filed as exhibits or any Company Subsidiary;
(h) any personal property lease with an annual payment thereunder of more than $50,000; and
(i) any Company Agreement (other than those listed in paragraphs (a) through (h) immediately above) which provides for payments to or from the Company SEC Documents are true, complete and correct copies in an amount of $100,000 annually or $300,000 in the aggregate over the maximum life of such contractsCompany Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Cheap Tickets Inc), Merger Agreement (Cendant Corp)
Contracts. (a) Except as filed as exhibits to set forth in the Company SEC Documents filed prior to the date hereof, or as disclosed in Section 3.13 of the Company Seller Disclosure Schedule, there is no Company Agreement relating none of Seller, any of its Subsidiaries, or to the ADS Businessknowledge of Seller, any other party is in breach or violation or in default in the Acquired Assets performance or the Retained Liabilities (a) observance of any term or provision of any contract, agreement, indenture, mortgage, loan agreement, note, lease or other instrument to which Seller or any such Subsidiary is a party or by which Seller or any such Subsidiary is bound or to which any of the benefits to any party properties of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or (b) which, as of the date hereof, (i) is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC), (ii) involves aggregate expenditures in excess of $50,000 per annum, (iii) involves aggregate expenditures in excess of $50,000 and was not entered into in the ordinary course of business, (iv) contains “take or pay” provisions applicable to the Company Seller or any Company Subsidiarysuch Subsidiary is subject, (v) contains any non-compete which breach, violation or exclusivity provisions with respect to any line of business or geographic area with respect to the Company, any Company Subsidiary or any of the Company’s current or future affiliates, or which restricts the conduct of any line of business by the Company, any of the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct business, in each case in any respect, (vi) default would reasonably be expected to prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions or (vii) is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded Asset. Each contract of the type described in this Section 3.13, whether or not set forth in Section 3.13 of the Company Disclosure Schedule, is referred to herein as a “Company Material Contract”. Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities is valid and binding on the Company and each Company Subsidiary party thereto and, to the Company’s knowledge, each other party thereto, as applicable, and in full force and effect, and the Company and each Company Subsidiary has performed all obligations required to be performed by it under each such Company Agreement and, to the Company’s knowledge, each other party to each such Company Agreement has performed all obligations required to be performed by it under such Company Agreement, except as would not, or would not be reasonably expected likely to, individually or in the aggregate, have a Material Adverse Effect on Seller.
(1b) prohibit The Seller Disclosure Schedule sets forth a true and correct list of (i) all contracts or materially delay agreements between or among Seller or any Subsidiary of Seller, one the one hand, and any other Person, on the other hand, which are terminable or which contain any provision that would be triggered as a result of the consummation of any of the Offertransactions contemplated by this Agreement, (ii) all contracts or agreements between Seller or any Subsidiary of Seller, on the Merger one hand, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ or any of his affiliates, on the other Transactionshand, (2collectively, the "RL Agreements"), (iii) otherwise prevent all capital stock or materially delay performance ownership interests directly or indirectly owned by Seller in any Persons owning or operating commercial television broadcasting companies or owning any licenses with respect thereto (the "Seller Broadcast Properties") and (iv) all material contracts or agreements with, or other commitments to, any other shareholder, partner, joint venturer or Person owning an interest in any Seller Broadcast Property or licenses pertaining thereto (collectively, the "Seller Broadcast Contracts"). Except as disclosed in the Seller Disclosure Schedule or as would not have a Material Adverse Effect on Seller, the interests referred to in clause (iii) of the immediately preceding sentence, together with the Seller Broadcast Contracts, are sufficient to ensure the continued enjoyment, after the Closing Date, by the Surviving Company of any of its material the businesses owned and operated by the Seller Broadcast Properties.
(c) The Seller Broadcast Contracts have been duly executed and delivered and constitute valid and binding obligations under this Agreement or (3) result in a Company Material Adverse Effect. None of the Company or any Company Subsidiary knows ofparties thereto, or has received notice of, any violation or default under (or any condition which enforceable against the parties thereto in accordance with the passage of time or the giving of notice would cause such a violation of or default under) any Company Agreement relating their respective terms except to the ADS Business, the Acquired Assets or the Retained Liabilities except for violations or defaults that would not, or extent any lack of enforceability would not be reasonably expected likely to, individually or in the aggregate, have a Material Adverse Effect on Seller.
(1d) prohibit or materially delay consummation of Seller has disclosed to the Offer, Surviving Company all written communications between any Person having an interest in the Merger broadcast license with respect to NOVA TV or any regulatory authority having jurisdiction over the operations of NOVA TV, on the one hand, and Seller or any Subsidiary of Seller, on the other Transactionshand, with respect to Seller's interest in NOVA TV.
(2e) otherwise prevent or materially delay performance by Except as set forth in the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. The Company has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all of the Company Material Contracts or other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities required to be disclosed in Section 3.13 of the Company Seller Disclosure Schedule, neither Seller nor any Subsidiary is a party to, or is otherwise subject to, any agreement or commitment (i) granting registration rights, including piggyback rights, to any Person, or (ii) containing any non-competition or similar agreement which are not filed as exhibits to restricts the Company SEC Documents and the Company Material Contracts businesses which may be engaged in by Seller or other Company Agreements required to be disclosed any affiliate thereof in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contractsany geographic location.
Appears in 2 contracts
Sources: Reorganization Agreement (Lauder Ronald S), Reorganization Agreement (Central European Media Enterprises LTD)
Contracts. Except as filed as exhibits to the Company SEC Documents filed prior to the date hereof, or as disclosed in (a) Section 3.13 3.18(a) of the Company Disclosure Schedule, there is no Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities (a) any of the benefits to any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or (b) whichLetter sets forth, as of the date hereof, any agreement, lease, license, use or occupancy agreement, contract, note, mortgage, indenture, arrangement or other binding obligation (each, a “Contract”) to which the Company or any Company Subsidiaries is currently a party to or by which it or any of them are otherwise currently bound, that is not filed as an exhibit to the Company SEC Documents or that is not a Contract which is posted and available for review by Parent as of 12:00 p.m., Chicago time, on January 7, 2010, in the internet based data site maintained by the Company with ▇▇▇▇▇▇▇ Corporation and referred to commonly as the Krusher Data Site (the “Posted Data Room Documents”): (i) is a “material contract” (that would be required to be filed by the Company as such term is defined in an exhibit to any Company SEC Document pursuant to Item 601(b)(4) or 601(b)(10) of Regulation S-K of under the SEC), Securities Act; (ii) involves aggregate expenditures pursuant to which the Company or any Company Subsidiary (A) licenses or otherwise obtains the right to use the Intellectual Property rights of any other Person (other than licenses for readily available commercial software or licenses of Intellectual Property which are not material to the manufacture or sale by the Company or any Company Subsidiary of any product of the Company or any Company Subsidiary), or (B) is restricted in any material respect in its right to use any Company Intellectual Property where any such material restriction would reasonably be expected to result, individually or in the aggregate, in a Company Material Adverse Effect; (iii) that, since January 1, 2003, relates to the acquisition or disposition of any material business or material real property (whether by merger, sale of stock, sale of assets or otherwise), not including any disposition which has been reflected in prior financial statements of the Company that have been filed as part of the Company SEC Documents; (iv) that relates to any acquisition of assets or of a business under which there is a future obligation on the part of the Company or any Company Subsidiary which would reasonably be expected to exceed $500,000 under any such Contract, including by means of an earn-out or similar contingent payment mechanism; (v) purporting to restrict or prohibit the Company or any Company Subsidiary from engaging or competing in the manufacture, marketing, distribution or sale of any of the products or services presently manufactured, marketed, distributed or sold by the Company or any Company Subsidiaries; (vi) that relates to any partnership, joint venture, strategic alliance or other similar arrangement (each a “JV”) in which the Company or any Company Subsidiary is a partner, member or party, excepting any JV with respect to which the Company or the Company Subsidiary which is a partner, member or party thereof has no remaining capital contribution obligation, no unperformed obligation to extend credit, and with respect to which it has no personal liability respecting such JV’s indebtedness, liabilities and obligations; (vii) that evidences or is the primary document under which there arises Indebtedness of the Company or any Company Subsidiary (other than agreements with or among direct or indirect wholly owned Company Subsidiaries) in excess of $50,000 per annum1,000,000; (viii) under which the Company or any Company Subsidiary has advanced or loaned any other person the principal sum of more than $1,000,000, not including credit extended to customers in the ordinary course of business; (iiiix) involves aggregate expenditures that includes any guarantee by the Company or any Company Subsidiary of any debt or obligations which are in excess of $50,000 and was 500,000 (other than any guarantee by the Company of a Company Subsidiary’s debts or obligations or a guarantee by a Company Subsidiary of the Company’s debts or obligations or another Company Subsidiary’s debts or obligations); (x) the performance of which involves expenditures or receipts of the Company or any Company Subsidiary in excess of $1,000,000 per year not entered into in the ordinary course of business; (xi) that provides for the production by the Company or any Company Subsidiary of any product on an exclusive or requirements basis or the purchase by the Company or any Company Subsidiary of any product on an exclusive or output basis, (iv) contains “take or pay” provisions applicable to and was not made in the ordinary course of business by the Company or any Company Subsidiary; (xii) with any director or officer of the Company or any other employee of the Company or any Company Subsidiary earning noncontingent cash compensation in excess of $150,000 per year (including any employment, (v) contains any consulting, retention, severance, change in control, non-compete competition, termination or exclusivity provisions indemnification agreements); (xiii) that is a collective bargaining agreement or similar labor agreement with a labor union or labor organization with respect to employees of the Company or any line of business Company Subsidiary; (xiv) to which the Company or geographic area with respect to the Company, any Company Subsidiary is a party with any Governmental Entity, excepting any such Contract made in the ordinary course of business and not to resolve any claimed liability for breach or violation of any law or regulation of governmental authority; (xv) that grants any party to the Contract or any of the Company’s current other third party “most favored nation” pricing or future affiliates, terms under a Contract which may not be terminated on sixty (60) days or which restricts the conduct of any line of business less notice by the Company, any of Company or the Company’s current or future affiliates, any Company Subsidiary which is a party to such Contract; (xvi) the failure to obtain consent in respect of, individually or any geographic area in which the Companyaggregate, any Company Subsidiary or any of the Company’s current or future affiliates may conduct business, in each case in any respect, (vi) would reasonably be expected to prohibit result in a Company Material Adverse Effect and (xvii) that provides for termination, acceleration of payment or materially delay other special rights upon the consummation occurrence of the Offer, the Merger or any of the other Transactions or (vii) is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded Asset. Each contract of the type described a change in this Section 3.13, whether or not set forth in Section 3.13 control of the Company Disclosure Schedulewhere such termination, acceleration of payment or other special right would reasonably be expected to be material to the Company (each such Contract described in clauses (i) through (xvii), each Contract filed as an exhibit to the Company SEC Documents and each of the Posted Data Room Documents that meets the description of any of clauses (i) though (xvii) is referred to herein as a “Company Material Contract”).
(b) A true, correct and complete copy of each Company Material Contract (and any amendments thereto) has been made available to Parent. Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities is valid and binding on Neither the Company and each nor any Company Subsidiary party thereto and, to is in breach of or default under the Company’s knowledge, each other party thereto, as applicable, and in full force and effect, and the terms of any Company and each Company Subsidiary has performed all obligations required to be performed by it under each Material Contract except for such Company Agreement and, to the Company’s knowledge, each other party to each such Company Agreement has performed all obligations required to be performed by it under such Company Agreement, except as would not, breaches or would not be reasonably expected todefaults that, individually or in the aggregate, (1) prohibit have not resulted in or materially delay the consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) would not reasonably be expected to result in a Company Material Adverse Effect. None To the knowledge of the Company or Company, no other party to 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 Material Contract is in breach of or default under(with or without notice or lapse of time, or both) under the terms of any Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities Material Contract except for violations such breaches or defaults that would not, or would not be reasonably expected tothat, individually or in the aggregate, (1) prohibit have not resulted in or materially delay consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) would not reasonably be expected to result in a Company Material Adverse Effect. The Each Company has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete Material Contract is a valid and correct copies of all binding obligation of the Company Material Contracts or the Company Subsidiary which is party thereto and, to the knowledge of the Company, of each other party thereto, and is in full force and effect, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Company Agreements similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the ADS Business, the Acquired Assets or the Retained Liabilities required to be disclosed in Section 3.13 discretion of the Company Disclosure Schedule, court before which are not filed as exhibits to the Company SEC Documents and the Company Material Contracts or other Company Agreements required to any proceeding therefor may be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contractsbrought.
Appears in 2 contracts
Sources: Rights Agreement (K Tron International Inc), Merger Agreement (K Tron International Inc)
Contracts. Except as (a) All Contracts required to be filed as exhibits to the Company SEC Documents have been so filed prior to the date hereof, or as disclosed in a timely manner. Section 3.13 3.15(a) of the Company Disclosure ScheduleLetter sets forth a true and complete list of each of the following Contracts to which the Company, there is no Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities (a) any of its Subsidiaries is a party or by which the benefits to any party of which will be increasedCompany, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions its Subsidiaries or the value of any of the benefits to their assets or businesses are bound (and any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or (b) whichamendments, as of the date hereof, supplements and modifications thereto):
(i) is any Contract that would be required to be filed by the Company as a “material contract” (as such term is defined in pursuant to Item 601(b)(10) of Regulation S-K of under the SEC), Securities Act;
(ii) any Contract that is a non-competition Contract or other Contract that (A) limits in any material respect either the type of business in which the Company or any of the Subsidiaries of the Company (or, after the Effective Time, Parent or any of its Subsidiaries) or any of their respective Affiliates, may engage or the manner or geographic area in which any of them may so engage in any business, (B) would require the disposition, lease, license or other transfer of any material assets or line of business of the Company or any of its Subsidiaries (or, after the Effective Time, Parent or any of its Subsidiaries) or any of their respective Affiliates as a result of the consummation of the transactions contemplated by this Agreement, (C) is a Contract that grants a third party “most favored nation” or similar status that, following the Effective Time, would apply to Parent or any of its Subsidiaries, including the Company or any of its Subsidiaries; (D) contains any “exclusivity” or similar provision for the benefit of a third party or otherwise prohibits or limits, in any material respect, except those Intellectual Property Agreements set forth in Section 3.18(c) of the Company Disclosure Letter, the right of the Company or any of its Subsidiaries (or, after the Effective Time, would prohibit or limit, in any material respect, the right of Parent or any of its Subsidiaries) to make, sell, market, advertise, promote, publicly display or distribute any products or services or use, transfer, license, distribute, defend or enforce any of their respective Intellectual Property Rights; (E) obligates the Company or any of its Subsidiaries to purchase or obtain a minimum or specified amount of any product or service from any Person; or (F) that involves aggregate expenditures the obligation or potential obligation of the Company or any of its Subsidiaries to make any “earn-out” or similar payments to any Person;
(iii) any indenture, loan or credit agreement, factoring agreement, security agreement, guarantee, note, mortgage, letter of credit, reimbursement agreement or other Contract, in any such case relating to indebtedness or other obligation of any Acquired Company having an outstanding principal amount in excess of $50,000 per annum100,000 (except for such indebtedness between the Acquired Companies or guaranties by any Acquired Company of indebtedness of any Acquired Company);
(iv) any Contract relating to any material joint venture or partnership;
(v) any Contract, excluding any Real Property Lease, under which the Company or any of its Subsidiaries made or received payments of more than $250,000 during the fiscal year ended December 31, 2014 or reasonably expects to make or receive payments of more than $250,000 for the fiscal year ending December 31, 2015, and is not terminable upon notice of 30 days or less without penalty;
(iiivi) involves any Contract that restricts or prohibits the Company or any Subsidiary of the Company (or after the Effective Time would restrict or prohibit Parent or any of its Subsidiaries) from hiring or soliciting any individual to perform employment or consulting services;
(vii) any Contract establishing any material dealer, reseller, remarketer, distribution, joint marketing, exclusive arrangement or manufacturer arrangement, or similar agreement granting rights with regard to products or services of the Company or any of its Subsidiaries;
(viii) any Contract that provides for any standstill or similar restriction with respect to the Company or its securities;
(ix) any Contract for the lease of real property by the Company or any of its Subsidiaries that by its terms calls for aggregate expenditures annual rent payments of more than $100,000 by the Company and its Subsidiaries;
(x) any employment Contract that requires aggregate payments with respect to annual salary and target bonus in excess of $50,000 180,000 on an annual basis or is not terminable without cause by the Company or any of its Subsidiaries by notice of not more than sixty (60) days or without any termination payment or penalty, or any severance, retention, change in control or similar Contract;
(xi) any Contract with an independent contractor or consultant, including any Software development agreements, that requires aggregate payments in excess of $150,000 on an annual basis;
(xii) any collective bargaining agreement or other Contract with any labor organization, union or association or works council;
(xiii) any Contract that grants any rights of first refusal, rights of first negotiation or other similar rights to any Person with respect to any material asset of the Company and was not entered into its Subsidiaries;
(xiv) any Contract that relates to any material interest rate, derivatives or hedging transaction (including with respect to commodities);
(xv) any Contract that relates to the acquisition or disposition of any business, capital stock or assets (whether by merger, sale of stock, sale of assets or otherwise), other than a Contract to purchase or license of technology, goods, services, or other assets in the ordinary course of business, (iv) contains “take or pay” provisions applicable to under which the Company or any Company Subsidiary, (v) contains of its Subsidiaries has any non-compete outstanding contingent or exclusivity provisions with respect to any line of business or geographic area with respect other obligations that are material to the CompanyCompany and its Subsidiaries, taken as a whole;
(xvi) any Company Subsidiary Contract that is a settlement or similar Contract with any Governmental Entity or any other Person or an order, judgment, writ, stipulation, award, injunction or decree of a Governmental Entity or arbitrator to which the Company or any of its Subsidiaries, or any of their respective assets or properties, is subject that is, in each case, material to the Company and its Subsidiaries, taken as a whole;
(xvii) any Contract purporting to indemnify or hold harmless any director, officer or employee of the Company or any of its Subsidiaries (other than the Company Constituent Documents or organizational documents of the Company’s current Subsidiaries); and
(xviii) any Contract to which any holder of more than five percent (5%) of the capital stock or future affiliates, other securities of the Company is a party or which restricts the conduct of any line of business that is required to be disclosed by the CompanyCompany pursuant to Item 404 of Regulation S-K under the Securities Act, any other than Contracts related to the granting, vesting, exercise, issuance or delivery of equity-based awards under the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Equity Plans and Contracts that are Company Subsidiary or any of the Company’s current or future affiliates may conduct business, in each case in any respect, (vi) would reasonably be expected to prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions or (vii) is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded AssetPlans. Each contract of the type such Contract as described in this Section 3.13, whether 3.15(a) or not set forth Section 3.18(c) or listed in Section 3.13 3.15(a) or Section 3.18(c) of the Company Disclosure ScheduleLetter, is referred to herein as a “Company Material Contract”.
(b) True and complete copies of all Material Contracts of the Company, its Subsidiaries have been made available to Parent in the Data Room in accordance with all applicable Laws. For purposes of this Agreement, “Contract” means any note, bond, mortgage, indenture, contract, arrangement, undertaking, purchase order, bid, agreement, lease, license agreement or other instrument or obligation (whether written or oral), together with all amendments thereto. Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities Material Contract is valid and binding on the Company and each Company Subsidiary of its Subsidiaries party thereto and, to the knowledge of the Company’s knowledge, each any other party thereto, as applicable, and is in full force and effect, and the Company and except in each Company Subsidiary has performed all obligations required case for such failures to be performed by it under each such Company Agreement and, to the Company’s knowledge, each other party to each such Company Agreement has performed all obligations required valid and binding or to be performed by it under such Company Agreement, except as would not, or would not be reasonably expected toin full force and effect that, individually or in the aggregate, (1) prohibit or materially delay the consummation of the Offerhave not had, the Merger or any of the other Transactionsand would not reasonably be expected to have, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. None Except as required or permitted by this Agreement after the date of this Agreement, the Company has not terminated, waived, amended, released or modified in any respect any provision of any standstill or similar agreement with respect to the Company or any Subsidiary of the Company Subsidiary knows ofto which it is currently or has, within the 12 months immediately preceding the date hereof, been a party. Except, individually or in the aggregate, as has received notice ofnot had, and would not reasonably be expected to have, a Material Adverse Effect, and there is no default under any Contract by the Company or any of its Subsidiaries party thereto or, to the knowledge of the Company, any violation or default under (or any condition which other party thereto, and no event has occurred that with the passage lapse of time or the giving of notice or both would cause such constitute a violation of or default under) any thereunder by the Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities except for violations or defaults that would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactionsits Subsidiaries party thereto or, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. The Company has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all knowledge of the Company Material Contracts or Company, any other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities 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 or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contractsparty thereto.
Appears in 2 contracts
Sources: Merger Agreement (Knowles Corp), Merger Agreement (Audience Inc)
Contracts. (a) Except as (v) for this Agreement, (w) for the Contracts filed as exhibits to the Company Parent SEC Documents Reports filed prior to the date hereofof this Agreement, (x) for Parent Plans and Parent Stock Plans, (y) for any contracts that are terminable (and will continue to be terminable after the Effective Time) by Parent or any of its subsidiaries party thereto on no more than sixty (60) days’ notice without material penalty or other liability or (z) as disclosed set forth in Section 3.13 4.9 of the Company Parent Disclosure Schedule, there neither Parent nor any of its subsidiaries, as of the date hereof, is no party to or bound by any Contract that:
(i) is required to be filed by Parent as a “material contract” pursuant to Item 601 of Regulation S-K under the Securities Act;
(ii) contains covenants binding upon Parent or any of its subsidiaries, in each case, that are material to Parent and its subsidiaries, taken as a whole, that (A) restrict the ability (other than to the extent described in clause (C)(1) below) of Parent (or, following the Effective Time, the Surviving Company Agreement or its subsidiaries) or any of its subsidiaries or Affiliates to engage or compete in any business or sell, supply, acquire, license or distribute any product or service, in each case, in any market or geographic area, with any Person or during any period of time, or that would require the disposition of any material assets or line of business of Parent or its subsidiaries, or, in each case, after the Effective Time, the Surviving Company or its subsidiaries, (B) (1) grant “most favored nation” status to another Person and (2) pursuant to such Contract Parent or any of its subsidiaries collectively received, during the twelve (12) month period ended December 2, 2017, more than $50,000,000 or (C) (1) include exclusive or preferred purchasing arrangements or similar provisions expressly obligating Parent or any of its subsidiaries to obtain all of its requirements for, or a minimum quantity of, certain merchandise exclusively from any vendor for merchandise resold by Parent or any of its subsidiaries, except, in each case, any purchase orders entered into in the ordinary course of business and (2) pursuant to such Contract Parent or any of its subsidiaries collectively paid, during the twelve (12) month period ended December 2, 2017, more than $50,000,000;
(iii) is a services agreement, equipment lease, logistics agreement, information technology agreement or agreement related to software (other than any architectural or construction-related Contract) in connection with which or pursuant to which Parent or any of its subsidiaries collectively paid, during the twelve (12) month period ended December 2, 2017, more than $50,000,000 to any Person;
(iv) other than with respect to any partnership or limited liability company that is wholly owned by Parent or any of its wholly-owned subsidiaries, is a joint venture, partnership, limited liability company or other similar agreement or arrangement relating to the ADS Businessformation, the Acquired Assets creation, operation, management or control of any joint venture, partnership, limited liability company or other similar Person, in each case, that is material to Parent and its subsidiaries, taken as a whole;
(v) is an indenture, credit agreement, loan agreement, security agreement, guarantee, bond or any other Contract relating to indebtedness for borrowed money or the Retained Liabilities (a) deferred purchase price for property, in each case having an outstanding amount in excess of $5,000,000 individually, other than any such Contract between or among any of Parent and any of its wholly-owned subsidiaries;
(vi) prohibits the benefits payment of dividends or distributions in respect of the capital stock of Parent or any of its subsidiaries, prohibits the pledging of the capital stock of Parent or any subsidiary of Parent, prohibits the issuance of guarantees by Parent or any subsidiary of Parent or grants any rights of first refusal or rights of first offer or similar rights or that limits or proposes to limit the ability of Parent or any of its subsidiaries or Affiliates to sell, transfer, pledge or otherwise dispose of any assets or businesses, in each case, that is material to Parent and its subsidiaries, taken as a whole;
(vii) is an agreement under which Parent or any of its subsidiaries has any obligations to make a capital contribution to, or other investment in the securities of, any Person (other than (A) to Parent or any of its wholly-owned subsidiaries, (B) extensions of credit in the ordinary course of business consistent with past practice and (C) investments in marketable securities in the ordinary course of business), in each case, that is material to Parent and its subsidiaries, taken as a whole;
(viii) is an agreement with respect to any party acquisition or divestiture (other than, for the avoidance of doubt, for acquisitions or dispositions of inventory, merchandise, products, services, properties and assets in the ordinary course of business) pursuant to which Parent or any of its subsidiaries has continuing indemnification, “earn-out” or other contingent payment obligations, in each case, that would reasonably be expected to result in payments in excess of $10,000,000;
(ix) is between Parent or any of its subsidiaries, on the one hand, and any director or officer of Parent or any Person beneficially owning five percent (5%) or more of the outstanding shares of Parent Common Stock or any of their respective Affiliates, on the other hand, except for any Parent Plan;
(x) contains a standstill or similar agreement that will be increased, or the vesting in effect as of the benefits Closing pursuant to which Parent or any of its subsidiaries has agreed not to acquire assets or securities of another Person;
(xi) contains a put, call or similar right pursuant to which Parent or any of its subsidiaries could be required to purchase or sell, as applicable, any equity interests of any Person or assets, in each case with a value in excess of $10,000,000;
(xii) is a Parent Material Real Property Lease;
(xiii) is a Contract (including purchasing agreements, group purchasing agreements and excluding work orders, statements of work, purchase orders and similar contracts) pursuant to which Parent or any of its subsidiaries collectively paid, during the twelve (12) month period ended December 2, 2017, more than $50,000,000 to any party of which will be accelerated, by the occurrence of Person; or
(xiv) is with any of Parent’s top ten (10) commercial payors (measured by prescription revenue of Parent during the Transactions or twelve (12) month period ended on December 2, 2017) (the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or “Parent Key Payors”).
(b) whichEach Contract set forth or required to be set forth in Section 4.9 of the Parent Disclosure Schedule or filed as an exhibit (or incorporated by reference) to the Parent SEC Reports filed prior to the date of this Agreement as a “material contract” pursuant to Item 601 of Regulation S-K under the Securities Act (and to the extent so disclosed as a “material contract” under Regulation S-K in force as of the date hereof) is referred to herein as a “Parent Material Contract.” Each of the Parent Material Contracts is valid and binding on Parent or its subsidiaries party thereto, as applicable, and, to the knowledge of Parent, each other party thereto, and is in full force and effect, subject to the Bankruptcy and Equity Exception, except (i) to the extent that any Parent Material Contract expires in accordance with its terms and (ii) for such failures to be valid and binding or to be in full force and effect that have not had and would not, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effect. Except as has not had and would not, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effect, as of the date hereof, (iA) is a “Parent and its subsidiaries have in all material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC), (ii) involves aggregate expenditures in excess of $50,000 per annum, (iii) involves aggregate expenditures in excess of $50,000 and was not entered into in the ordinary course of business, (iv) contains “take or pay” provisions applicable to the Company or any Company Subsidiary, (v) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to the Company, any Company Subsidiary or any of the Company’s current or future affiliates, or which restricts the conduct of any line of business by the Company, any of the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct business, in each case in any respect, (vi) would reasonably be expected to prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions or (vii) is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded Asset. Each contract of the type described in this Section 3.13, whether or not set forth in Section 3.13 of the Company Disclosure Schedule, is referred to herein as a “Company Material Contract”. Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities is valid and binding on the Company and each Company Subsidiary party thereto and, to the Company’s knowledge, each other party thereto, as applicable, and in full force and effect, and the Company and each Company Subsidiary has respects performed all obligations required to be performed by it them under each such Company Agreement Parent Material Contract and, to the Company’s knowledgeknowledge of Parent, each other party to each such Company Agreement Parent Material Contract has in all material respects performed all obligations required to be performed by it under such Company Agreement, except as would not, or would not be reasonably expected to, individually or in the aggregateParent Material Contract, (1B) prohibit or materially delay neither Parent nor any of its subsidiaries have received written notice from any other party to a Parent Material Contract that such other party intends to terminate any such Parent Material Contract (except in accordance with the consummation of the Offer, the Merger terms thereof) and (C) there is no default under any Parent Material Contract by Parent or any of its subsidiaries and, to the other Transactionsknowledge of Parent, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. None of the Company or any Company Subsidiary knows ofno event has occurred that, or has received notice of, any violation or default under (or any condition which with the passage lapse of time or the giving of notice or both, would cause such constitute a violation of or default under) any Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities except for violations or defaults that would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger thereunder by Parent or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. The Company has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all of the Company Material Contracts or other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities 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 or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contractssubsidiaries.
Appears in 2 contracts
Sources: Merger Agreement (Albertsons Companies, LLC), Merger Agreement (Rite Aid Corp)
Contracts. Except for this Agreement, except as filed with the SEC, and except as exhibits to the Company SEC Documents filed prior to the date hereof, or as disclosed set forth in Section 3.13 4.15 of the Company Disclosure Schedule, there is no Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities (a) any of the benefits to any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or (b) whichLetter, as of the date hereof, neither the Company nor any of its Subsidiaries is a party to or is bound by any Contract that (i) is would be required to be filed by the Company as a “material contract” (as such term is defined in pursuant to Item 601(b)(10) of Regulation S-K of under the SEC)Securities Act, (ii) involves aggregate expenditures is a Contract that expressly requires the Company or any of its Subsidiaries not to compete in any material manner or other Contract that (A) expressly limits in any material respect either the type of business in which the Company or the Subsidiaries of the Company or any of their respective Affiliates may engage or the manner or geographic area in which any of them may so engage in any business, (B) would expressly require the disposition of any material assets or line of business of the Company or its Subsidiaries or any of their respective Affiliates as a result of the consummation of the transactions contemplated by this Agreement, (C) is a material Contract that expressly grants “most favored nation” status to the counterparty thereto or (D) expressly prohibits or limits, in any material respect, the right of the Company or any of its Subsidiaries to make, sell or distribute any products or services or use, transfer, license, distribute or enforce any of their respective Intellectual Property rights or (iii) under which any Acquired Company has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness for borrowed money in excess of $50,000 per annum, 1,000,000 (iii) involves aggregate expenditures in excess except for such indebtedness between the Acquired Companies or guaranties by any Acquired Company of $50,000 and was not entered into in the ordinary course of business, (iv) contains “take or pay” provisions applicable to the Company or any Company Subsidiary, (v) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to the Company, any Company Subsidiary or any of the Company’s current or future affiliates, or which restricts the conduct indebtedness of any line of business by the Acquired Company, any of the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct business, in ) (each case in any respect, (vi) would reasonably be expected to prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions or (vii) is necessary for the conduct of the ADS Business such Contract as currently conducted but constitutes an Excluded Asset. Each contract of the type described in this Section 3.134.15, whether or not set forth in Section 3.13 of the Company Disclosure Schedule, is referred to herein as a “Company Material Contract”). For purposes of this Agreement, “Contract” means any note, bond, mortgage, indenture, contract, agreement, lease or other instrument or obligation, together with all amendments thereto. Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities Material Contract is valid and binding on the Company and each Company Subsidiary of its Subsidiaries party thereto and, to the knowledge of the Company’s knowledge, each any other party thereto, as applicable, and is in full force and effect, and the Company and except in each Company Subsidiary has performed all obligations required case for such failures to be performed by it under each such Company Agreement and, to the Company’s knowledge, each other party to each such Company Agreement has performed all obligations required valid and binding or to be performed by it under such Company Agreement, except as would not, or would not be reasonably expected to, in full force and effect that individually or in the aggregateaggregate do not have, (1) prohibit or materially delay the consummation of the Offerand would not reasonably be expected to have, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. None of Except individually or in the aggregate as does not have, and would not reasonably be expected to have, a Material Adverse Effect, (x) there is no default under any Contract by the Company or any Company Subsidiary knows ofof its Subsidiaries party thereto or, or has received notice ofto the knowledge of the Company, any violation or default under other party thereto, and (or any condition which y) no event has occurred that with the passage lapse of time or the giving of notice or both would cause such constitute a violation of or default under) any thereunder by the Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities except for violations or defaults that would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactionsits Subsidiaries party thereto or, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. The Company has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all knowledge of the Company Material Contracts or Company, any other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities 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 or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contractsparty thereto.
Appears in 2 contracts
Sources: Merger Agreement (I Flow Corp /De/), Merger Agreement (Kimberly Clark Corp)
Contracts. (a) Except for this Agreement, or as filed as exhibits to with the Company SEC Documents filed prior to the date hereofof this Agreement, or as disclosed in Section 3.13 of the Company Disclosure Schedule, there is no Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities (a) neither Parent nor any of the benefits its Subsidiaries is a party to any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or (b) whichbound by, as of the date hereofof this Agreement, any Contract (whether written or oral) (i) which is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC), ) to Parent; or (ii) involves aggregate expenditures which constitutes a Contract or commitment relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset) in excess of $50,000 per annum, 25,000,000 (iii) involves aggregate expenditures in excess of $50,000 and was not entered into in the ordinary course of business, (iv) contains “take or pay” provisions applicable to the Company or any Company Subsidiary, (v) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to the Company, any Company Subsidiary or any of the Company’s current or future affiliates, or which restricts the conduct of any line of business by the Company, any of the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct business, in each case in any respect, (vi) would reasonably be expected to prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions or (vii) is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded Asset. Each contract all contracts of the type described in this Section 3.13, whether or not set forth 4.13(a) and in Section 3.13 of the Company Disclosure Schedule, is 4.13(b) being referred to herein as “Parent Material Contracts”).
(b) Section 4.13(b) of the Parent Disclosure Schedule contains a “Company true and complete listing of the following Contracts to which Parent or any of its Subsidiaries is a party in effect on the date of this Agreement: (i) each Contract containing a non-compete provision that, following the Effective Time, would by its terms materially restrict the ability of the Partnership or any of its Subsidiaries to compete in any line of business or with any Person or in any geographic area during any period of time after the Closing, (ii) each Contract involving the pending acquisition or sale of (or option to purchase or sell) any assets or properties outside the ordinary course of business that involves the payment or receipt of an aggregate amount in excess of $25,000,000 and (iii) each collective bargaining agreement to which Parent or any of its Subsidiaries is a party or is subject.
(c) Except as would not have, either individually or in the aggregate, a Parent Material Contract”. Each Company Agreement relating to the ADS BusinessAdverse Effect, the Acquired Assets or the Retained Liabilities (i) each Parent Material Contract is valid and binding on the Company Parent and each Company Subsidiary party thereto and, to the Company’s knowledge, each other party theretoany of its Subsidiaries, as applicable, and is in full force and effect, and the Company ; (ii) Parent and each Company Subsidiary of its Subsidiaries has in all material respects performed all obligations required to be performed by it to date under each such Company Agreement andParent Material Contract; and (iii) neither Parent nor any of its Subsidiaries has received written notice of, or to the Company’s knowledgeKnowledge of Parent, each other party to each such Company Agreement has performed all obligations required to be performed by it under such Company Agreement, except as would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay the consummation of the Offerknows of, the Merger existence of any event or condition which constitutes, or, after notice or lapse of time or both, will constitute, a material default on the part of Parent or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of its Subsidiaries under any of its material obligations under this Agreement or (3) result in a Company such Parent Material Adverse Effect. 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 Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities except for violations or defaults that would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. The Company has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all of the Company Material Contracts or other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities 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 or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contractsContract.
Appears in 2 contracts
Sources: Merger Agreement (Markwest Energy Partners L P), Merger Agreement
Contracts. (i) Except as filed as exhibits to disclosed in the Filed Company SEC Documents filed prior and except with respect to the date hereof, or as disclosed in Section 3.13 of the Company Disclosure Schedule, there is no Company Agreement licenses and other agreements relating to intellectual property, which are the ADS Business, the Acquired Assets or the Retained Liabilities (a) any subject of the benefits to any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or (b) which4.01(p), as of the date hereof, (i) neither the Company nor any of its Subsidiaries is a “material contract” (as such term party to, and none of their respective properties or other assets is defined in Item 601(b)(10) of Regulation S-K of the SEC), (ii) involves aggregate expenditures in excess of $50,000 per annum, (iii) involves aggregate expenditures in excess of $50,000 and was not entered into in the ordinary course of business, (iv) contains “take or pay” provisions applicable to the Company or any Company Subsidiary, (v) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to the Companysubject to, any Company Subsidiary Contract that is of a nature required to be filed as an exhibit to a report or any filing under the Securities Act or the Exchange Act and the rules and regulations promulgated thereunder. None of the Company’s current or future affiliates, or which restricts the conduct of any line of business by the Company, any of its Subsidiaries or, to the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which Knowledge of the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct business, in each case in any respect, (vi) would reasonably be expected to prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions or (vii) is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded Asset. Each contract of the type described in this Section 3.13, whether or not set forth in Section 3.13 of the Company Disclosure Schedule, is referred to herein as a “Company Material Contract”. Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities is valid and binding on the Company and each Company Subsidiary party thereto and, to the Company’s knowledge, each other party thereto, as applicable, and is in full force and effect, and the Company and each Company Subsidiary has performed all obligations required to be performed by it under each such Company Agreement and, to the Company’s knowledge, each other party to each such Company Agreement has performed all obligations required to be performed by it under such Company Agreement, except as would not, or would not be reasonably expected to, individually violation of or in the aggregate, (1) prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. None of the Company or any Company Subsidiary knows of, or has received notice of, any violation or default under (or nor does there exist any condition which with upon the passage of time or the giving of notice or both would cause such a violation of or default under) any Company Agreement relating Contract, to the ADS Businesswhich it is a party or by which it or any of its properties or other assets is bound, the Acquired Assets or the Retained Liabilities except for violations or defaults that would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in aggregate have not had and would not reasonably be expected to have a Company Material Adverse Effect. The Neither the Company nor any of its Subsidiaries has entered into any Contract with any Affiliate of the Company that is in effect as of the date hereof other than Contracts that are disclosed in the Filed Company SEC Documents. Neither the Company nor any of its Subsidiaries is a party to or otherwise bound by any agreement or covenant (A) restricting in any material respect the Company’s or its Subsidiaries’ ability to compete, (B) restricting in any respect the Company’s Affiliates’ ability to compete (other than the Company’s Subsidiaries), (C) restricting in any material respect the research, development, distribution, sale, supply, license, marketing or manufacturing of products or services of the Company or any of its Subsidiaries, (D) restricting in any respect the research, development, distribution, sale, supply, license, marketing or manufacturing of products or services of any of the Company’s Affiliates (other than the Company’s Subsidiaries) or (E) containing a right of first refusal, right of first negotiation or right of first offer in favor of a party other than the Company or its Subsidiaries.
(ii) Each Participant who has proprietary knowledge of or information relating to the material elements of the design, the manufacturing processes or the formulation of the products of the Company or any of its Subsidiaries has executed and delivered to the Purchaser Company or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all applicable Subsidiary of the Company Material Contracts an agreement or other Company Agreements relating to agreements, substantially in the ADS Business, the Acquired Assets or the Retained Liabilities required to be disclosed form(s) set forth in Section 3.13 4.01(i)(ii) of the Company Disclosure Schedule, which are not filed as exhibits Letter restricting such person’s right to the Company SEC Documents use and the Company Material Contracts or other Company Agreements required to be disclosed in Section 3.13 disclose confidential information of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies or any of such contractsits Subsidiaries.
Appears in 2 contracts
Sources: Merger Agreement (Mentor Corp /Mn/), Merger Agreement (Johnson & Johnson)
Contracts. (i) Schedule 2.1(v)(i) and Schedule 2.1(g) of the CPA14 Disclosure Letter list all CPA14 Material Contracts to which CPA14 or any CPA14 Subsidiary is a party that are in effect as of the date of this Agreement. Except as set forth in Schedule 2.1(v)(i) of the CPA14 Disclosure Letter or in the CPA14 SEC Documents, each CPA14 Material Contract is valid, binding and enforceable in accordance with its terms and in full force and effect with respect to CPA14 and the CPA14 Subsidiaries, as applicable, and, to the Knowledge of CPA14, each of the other parties thereto, except, in each case, where such failure to be so valid, binding and enforceable and in full force and effect would not, individually or in the aggregate, reasonably be expected to have a CPA14 Material Adverse Effect, and there are no defaults (nor does there exist any condition which upon the passage of time or the giving of notice or both would cause a default) under any CPA14 Material Contract by CPA14 or any CPA14 Subsidiary, or, to the Knowledge of CPA14, any of the other parties thereto, except for those defaults that would not, individually or in the aggregate, reasonably be expected to have a CPA14 Material Adverse Effect. For purposes of this Agreement, “CPA14 Material Contracts” shall mean (A) any partnership, limited liability company or joint venture agreement between CPA14 or any CPA14 Subsidiary, on the one hand, and a third party, on the other hand, (B) the mortgage loans set forth on Schedule 2.1(g) of the CPA14 Disclosure Letter, (C) each material commitment, contractual obligation, borrowing, capital expenditure or transaction entered into by CPA14 or any CPA14 Subsidiary which may result in total payments by or liability of CPA14 or any CPA14 Subsidiary in excess of $1,000,000, (D) any other agreements filed or required to be filed as exhibits to the Company CPA14 SEC Documents filed prior to the date hereof, or as disclosed in Section 3.13 of the Company Disclosure Schedule, there is no Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities (a) any of the benefits to any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or (b) which, as of the date hereof, (i) is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of Title 17, Part 229 of the SEC)Code of Federal Regulations, (iiE) involves aggregate expenditures in excess of $50,000 per annumany interest rate cap, interest rate collar, interest rate swap, currency hedging transaction and any other agreement relating to a similar transaction to which CPA14 or any CPA14 Subsidiary is a party or an obligor with respect thereto, (iiiF) involves aggregate expenditures in excess of $50,000 and was not entered into in the ordinary course of business, (iv) contains “take or pay” provisions applicable to the Company or any Company Subsidiary, (v) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area CPA14 Leases with respect to the Companyfive largest CPA14 Tenants measured by lease revenue, and (G) any Company Subsidiary agreement, commitment, instrument or any obligation of the Company’s current or future affiliates, or which restricts the conduct of any line of business by the Company, any of the Company’s current or future affiliates, any Company Subsidiary or any geographic area a type described in which the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct business, Sections 2.1(v)(ii) through 2.1(v)(iv); in each case in any respectincluding all amendments, (vi) would reasonably be expected modifications and supplements to prohibit or materially delay the consummation of the Offer, the Merger such CPA14 Material Contracts and all side letters to which CPA14 or any of CPA14 Subsidiary is a party affecting the other Transactions or (vii) is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded Asset. Each contract of the type described in this Section 3.13, whether or not set forth in Section 3.13 of the Company Disclosure Schedule, is referred to herein as a “Company Material Contract”. Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities is valid and binding on the Company and each Company Subsidiary party thereto and, to the Company’s knowledge, each other party thereto, as applicable, and in full force and effect, and the Company and each Company Subsidiary has performed all obligations required to be performed by it under each such Company Agreement and, to the Company’s knowledge, each other party to each such Company Agreement has performed all obligations required to be performed by it under such Company Agreement, except as would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. 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 Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities except for violations or defaults that would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. The Company has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all of the Company Material Contracts or other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities 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 or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contractsparty thereunder.
Appears in 2 contracts
Sources: Merger Agreement (Corporate Property Associates 14 Inc), Agreement and Plan of Merger (Carey W P & Co LLC)
Contracts. Except as filed as exhibits to the Company SEC Documents filed prior to the date hereof, or as disclosed in Section 3.13 of the Company Disclosure Schedule, there is no Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities (a) any of the benefits to any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or (b) which, as As of the date hereof, neither the Company nor any of the Company Subsidiaries is a party to or bound by any Contract (i) that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K S−K of the SEC)) to be performed after the date of this Agreement that has not been filed or incorporated by reference in the Company SEC Documents filed prior to the date hereof, (ii) involves aggregate expenditures that contains a non−compete or client or customer non−solicit requirement or other provision that materially restricts the conduct of, or the manner of conducting, any line of business material to the Company and the Company Subsidiaries, taken as a whole, or, to the Knowledge of Company, upon consummation of the Merger could materially restrict the ability of Parent, the Surviving Company or any of their respective Subsidiaries to engage in excess any material line of $50,000 per annumbusiness and, in each case, that is material, (iii) involves aggregate expenditures that obligates Company or any of the Company 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 Company or any of their respective Subsidiaries to conduct business with any third party on an exclusive or preferential basis, and in excess of $50,000 and was not entered into in the ordinary course of businesseach case, that is material, (iv) contains “take or pay” provisions applicable the absence of which would reasonably be likely to the result in a Company or any Company SubsidiaryMaterial Adverse Effect, (v) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to the Company, any Company Subsidiary or any of the Company’s current or future affiliates, or which restricts the conduct of any line of business by the Company, any of the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct business, in each case in any respect, (vi) would reasonably be expected to prohibit or materially delay the consummation of the Offer, the Merger or any otherwise impair the ability of the other Transactions Company to perform its obligations hereunder, (vi) requires or is reasonably likely to require either (x) annual payments from Third Parties to the Company and the Company Subsidiaries of at least $500,000 in the aggregate or (y) annual payments from the Company and Company Subsidiaries to Third Parties of at least $500,000 in the aggregate except, in the case of each of the foregoing clauses (x) and (y), for Contracts that provide for payments to attorney providers or the payment of commissions, (vii) involves any directors, executive officers (as such term is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded Asset. Each contract of the type described in this Section 3.13, whether or not set forth in Section 3.13 of the Company Disclosure Schedule, is referred to herein as a “Company Material Contract”. Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities is valid and binding on the Company and each Company Subsidiary party thereto and, to the Company’s knowledge, each other party thereto, as applicable, and in full force and effect, and the Company and each Company Subsidiary has performed all obligations required to be performed by it under each such Company Agreement and, to the Company’s knowledge, each other party to each such Company Agreement has performed all obligations required to be performed by it under such Company Agreement, except as would not, or would not be reasonably expected to, individually or defined in the aggregate, (1Exchange Act) prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. None 5% shareholders of the Company or any of their Affiliates (other than the Company Subsidiary knows of, or has received notice of, any violation or default under (or any condition which with Company Subsidiary) or immediate family members; or (viii) contains any covenant granting “most favored nation” status that, following the passage of time Merger, would apply to or the giving of notice would cause such a violation of or default under) any Company Agreement relating to the ADS Businessbe affected by actions taken by Parent, the Acquired Assets Surviving Corporation and/or their respective Subsidiaries or the Retained Liabilities except for violations or defaults that would not, or would not be reasonably expected to, individually or Affiliates. Each Contract described in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in immediately preceding sentence being a Company “Material Adverse Effect. The Company has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all of the Company Material Contracts or other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities 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 or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contractsContract”.
Appears in 2 contracts
Sources: Merger Agreement (Pre Paid Legal Services Inc), Merger Agreement (Pre Paid Legal Services Inc)
Contracts. Except as filed as exhibits to the Company SEC Documents Filings filed prior to the date hereofof this Agreement, or as disclosed in Section 3.13 3.9 of the Company Disclosure Schedule, there is no Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities (a) any of the benefits to any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or (b) whichLetter, as of the date hereof, of this Agreement neither the Company nor any Company Subsidiary is a party to or bound by any Contract (each a “Company Material Contract”) that (i) is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC), (ii) involves aggregate expenditures in excess is with any Affiliate of $50,000 per annumthe Company, other than any Contract (A) which is or has been fully performed and under which the Company has no continuing right, liability or obligation, or (B) that is otherwise disclosed on the Company Disclosure Letter and marked with a footnote indicating that it is a Contract with an Affiliate of the Company, or (iii) involves aggregate expenditures in excess of $50,000 and was not entered into in the ordinary course of business, (iv) contains “take limits or pay” provisions applicable to the Company or any Company Subsidiary, (v) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to the Company, any Company Subsidiary or any of the Company’s current or future affiliates, or which otherwise restricts the conduct of any line of business by the Company, any of the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct business, in each case in any respect, (vi) would reasonably be expected to prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions or (vii) is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded Asset. Each contract of the type described in this Section 3.13, whether or not set forth in Section 3.13 of the Company Disclosure Schedule, is referred to herein as a “Company Material Contract”. Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities is valid and binding on the Company and each Company Subsidiary party thereto and, to the Company’s knowledge, each other party thereto, as applicable, and in full force and effect, and the Company and each Company Subsidiary has performed all obligations required to be performed by it under each such Company Agreement and, to the Company’s knowledge, each other party to each such Company Agreement has performed all obligations required to be performed by it under such Company Agreement, except as would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. None of the Company or any Company Subsidiary knows or that would, after the Effective Time, limit or restrict Parent or any of its Subsidiaries (including the Surviving Corporation and its Subsidiaries) or any successor thereto, from engaging or competing in any line of business or in any geographic area. To the Company’s Knowledge, none of the contracts or agreements referred to in the foregoing clause (iii) would preclude the Company, the Surviving Corporation or Parent after Closing from engaging in any of its current activities, or presently planned material activities of which the Company is aware. All Company Material Contracts are valid and in full force and effect except to the extent they have previously expired in accordance with their terms, and neither the Company nor any Company Subsidiary has violated any provision of, or committed or failed to perform any act which, with or without notice, lapse or time, or both, could reasonably be expected to constitute a material default under the provisions of any such Company Material Contract. To the Knowledge of the Company, no counterparty to any such Company Material Contract has received notice violated any provision of, or committed or failed to perform any violation or default under (or any condition which act which, with the passage our without notice, lapse of time or the giving of notice would cause such a violation of or default under) any Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities except for violations or defaults that would nottime, or would not both, could reasonably be reasonably expected to, individually to constitute a material default or in other breach under the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company provisions of any of its material obligations under this Agreement or (3) result in a such Company Material Adverse EffectContract. The Company has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies Copies of all of the Company Material Contracts or other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities required to be disclosed set forth in Section 3.13 of the Company Disclosure Schedule, which Letter have heretofore been made available to Parent and such copies are not filed as exhibits to the Company SEC Documents accurate and the Company Material Contracts or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contractscomplete.
Appears in 2 contracts
Sources: Merger Agreement (Integrated Circuit Systems Inc), Merger Agreement (Integrated Device Technology Inc)
Contracts. Except as filed as exhibits Schedule 3.16 sets forth all of the following Contracts to which the Company SEC Documents filed prior to or any of its Subsidiaries is a party or by which it is bound (the date hereof, "Material Contracts"): (i) Contracts with any labor union or as disclosed in Section 3.13 association representing any employee of the Company Disclosure Schedule, there is no Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities (a) any of its Subsidiaries; (ii) Contracts for the benefits to any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence sale of any of the Transactions assets of the Company or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or (b) which, as of the date hereof, (i) is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC), (ii) involves aggregate expenditures in excess of $50,000 per annum, (iii) involves aggregate expenditures in excess of $50,000 and was not entered into its Subsidiaries other than in the ordinary course of business, business or for the grant to any Person of any preferential rights to purchase any of their assets; (iviii) contains “take or pay” provisions applicable to Contracts containing covenants of the Company or any Company Subsidiary, (v) contains any non-of its Subsidiaries not to compete or exclusivity provisions with respect to in any line of business or geographic area with respect to the Company, any Company Subsidiary or any of the Company’s current or future affiliates, or which restricts the conduct of any line of business by the Company, any of the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct business, in each case Person in any respect, geographical area; (viiv) would reasonably be expected to prohibit Contracts granting any registration or materially delay the consummation similar right in respect of the Offer, the Merger or any of the other Transactions or (vii) is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded Asset. Each contract of the type described in this Section 3.13, whether or not set forth in Section 3.13 of the Company Disclosure Schedule, is referred to herein as a “Company Material Contract”. Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities is valid and binding on the Company and each Company Subsidiary party thereto and, to the Company’s knowledge, each other party thereto, as applicable, and in full force and effect, and the Company and each Company Subsidiary has performed all obligations required to be performed by it under each such Company Agreement and, to the Company’s knowledge, each other party to each such Company Agreement has performed all obligations required to be performed by it under such Company Agreement, except as would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. None securities of the Company or any of its Subsidiaries, and (v) Contracts pursuant to which the Company Subsidiary knows of, or has received notice of, any violation or default under (or any condition of its Subsidiaries acquired the capital stock or assets of another entity and which with the passage of time or the giving of notice would cause such a violation of or default under) any Company Agreement contain earn-out provisions relating to such acquisition requiring the ADS Business, Company or any of its Subsidiaries to make payments in the Acquired Assets or the Retained Liabilities except for violations or defaults that would not, or would not be reasonably expected to, future in excess of $250,000 individually or $750,000 in the aggregate, (1) prohibit or materially delay consummation . All of the Offer, Contracts to which the Merger Company or any of its Subsidiaries is a party or by which it is bound are in full force and effect and are the other Transactionslegal, (2) otherwise prevent or materially delay performance by valid, and binding obligations of the Company and/or its Subsidiaries, enforceable against them in accordance with their terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, and equivalent Laws affecting creditors' rights and remedies generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity). Neither the Company nor any of its material obligations under this Agreement or (3) result Subsidiaries is in default, except as would not reasonably be expected to have a Company Material Adverse Effect. The Company has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all in any respect under any Contract of the Company Material Contracts or and its Subsidiaries, nor, to Parent's Knowledge, is any other Company Agreements relating party to the ADS Business, the Acquired Assets or the Retained Liabilities required to be disclosed any such Contract 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 or other Company Agreements required to be disclosed default thereunder in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contractsany respect.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Fidelity National Financial Inc /De/), Stock Purchase Agreement (Fidelity National Financial Inc /De/)
Contracts. (a) Except for this Agreement, or as filed as exhibits to with the Company SEC Documents filed prior to the date hereofof this Agreement, or as disclosed in Section 3.13 of the Company Disclosure Schedule, there is no Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities (a) neither Parent nor any of the benefits its Subsidiaries is a party to any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or (b) whichbound by, as of the date hereofof this Agreement, any Contract (whether written or oral) (i) which is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC), ) to Parent; or (ii) involves aggregate expenditures which constitutes a Contract or commitment relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset) in excess of $50,000 per annum, 25,000,000 (iii) involves aggregate expenditures in excess of $50,000 and was not entered into in the ordinary course of business, (iv) contains “take or pay” provisions applicable to the Company or any Company Subsidiary, (v) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to the Company, any Company Subsidiary or any of the Company’s current or future affiliates, or which restricts the conduct of any line of business by the Company, any of the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct business, in each case in any respect, (vi) would reasonably be expected to prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions or (vii) is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded Asset. Each contract all contracts of the type described in this Section 3.13, whether or not set forth 4.13(a) and in Section 3.13 of the Company Disclosure Schedule, is 4.13(b) being referred to herein as “ Parent Material Contracts ”).
(b) Section 4.13(b) of the Parent Disclosure Schedule contains a “Company true and complete listing of the following Contracts to which Parent or any of its Subsidiaries is a party in effect on the date of this Agreement: (i) each Contract containing a non-compete provision that, following the Effective Time, would by its terms materially restrict the ability of the Partnership or any of its Subsidiaries to compete in any line of business or with any Person or in any geographic area during any period of time after the Closing, (ii) each Contract involving the pending acquisition or sale of (or option to purchase or sell) any assets or properties outside the ordinary course of business that involves the payment or receipt of an aggregate amount in excess of $25,000,000 and (iii) each collective bargaining agreement to which Parent or any of its Subsidiaries is a party or is subject.
(c) Except as would not have, either individually or in the aggregate, a Parent Material Contract”. Each Company Agreement relating to the ADS BusinessAdverse Effect, the Acquired Assets or the Retained Liabilities (i) each Parent Material Contract is valid and binding on the Company Parent and each Company Subsidiary party thereto and, to the Company’s knowledge, each other party theretoany of its Subsidiaries, as applicable, and is in full force and effect, and the Company ; (ii) Parent and each Company Subsidiary of its Subsidiaries has in all material respects performed all obligations required to be performed by it to date under each such Company Agreement andParent Material Contract; and (iii) neither Parent nor any of its Subsidiaries has received written notice of, or to the Company’s knowledgeKnowledge of Parent, each other party to each such Company Agreement has performed all obligations required to be performed by it under such Company Agreement, except as would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay the consummation of the Offerknows of, the Merger existence of any event or condition which constitutes, or, after notice or lapse of time or both, will constitute, a material default on the part of Parent or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of its Subsidiaries under any of its material obligations under this Agreement or (3) result in a Company such Parent Material Adverse Effect. 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 Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities except for violations or defaults that would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. The Company has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all of the Company Material Contracts or other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities 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 or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contractsContract.
Appears in 2 contracts
Sources: Merger Agreement (MPLX Lp), Merger Agreement (Marathon Petroleum Corp)
Contracts. Except as (a) All Contracts, including amendments thereto, required to be filed as exhibits to (whether or not filed by the Company SEC Documents filed prior with the SEC) as an exhibit to the date hereof, or as disclosed in Section 3.13 any report of the Company Disclosure Schedule, there is no Company Agreement relating filed pursuant to the ADS Business, the Acquired Assets or the Retained Liabilities (a) any Exchange Act of the benefits to any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or (b) which, as of the date hereof, (i) is a “material contract” (as such term is defined type described in Item 601(b)(10) of Regulation S-K promulgated by the SEC have been filed, and no such Contract has been amended or modified, except for such amendments or modifications which have been filed as an exhibit to a subsequently dated and filed Company SEC Document. All such filed Contracts (excluding any Contracts or amendments thereto that have been redacted or that are missing schedules or exhibits) shall be deemed to have been made available to Parent.
(b) Except as set forth on Section 3.13(b) of the SEC)Company Disclosure Letter, as of the date of this Agreement,
(i) Neither the Company nor any Company Subsidiary is a party to or bound by any Contract pursuant to which the Company or any Company Subsidiary has agreed not to compete with any Person in any area or to engage in any activity or business, or pursuant to which any benefit or right is required to be given or lost, or any penalty or detriment is incurred, as a result of so competing or engaging;
(ii) involves aggregate expenditures Neither the Company nor any Company Subsidiary is a party to or bound by any Contract that provides for exclusivity or any similar requirement or pursuant to which the Company or any Company Subsidiary is restricted in excess any way, or which after the Effective Time could restrict Parent or any Company Subsidiary in any way, with respect to the development, manufacture, marketing or distribution of $50,000 per annumtheir respective products or services or otherwise with respect to the operation of their businesses, or pursuant to which any benefit or right is required to be given or lost, or any penalty or detriment is incurred, as a result of non-compliance with any such exclusive or restrictive requirements or which requires the Company or any Company Subsidiary to refrain from granting license or franchise rights to any other Person;
(iii) involves aggregate expenditures in excess Neither the Company nor any Company Subsidiary is a party to or bound by any Contract pursuant to which the Company or any Company Subsidiary has any obligation with (1) any Affiliate of $50,000 and was not entered into in the ordinary course of business, (iv) contains “take or pay” provisions applicable to the Company or any Company Subsidiary, (v2) contains any non-compete Company Employees, (3) any union or exclusivity provisions with respect to other labor organization or (4) any line Affiliate of business any such Person (other than, in each case, (I) offer letters or geographic area with respect to employment agreements that are terminable at will by the Company, Company or any Company Subsidiary or both without any of the Company’s current or future affiliates, or which restricts the conduct of penalty and without any line of business by the Company, any of the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct business, in each case in any respect, (vi) would reasonably be expected to prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions or (vii) is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded Asset. Each contract of the type described in this Section 3.13, whether or not set forth in Section 3.13 of the Company Disclosure Schedule, is referred to herein as a “Company Material Contract”. Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities is valid and binding on the Company and each Company Subsidiary party thereto and, to the Company’s knowledge, each other party thereto, as applicable, and in full force and effect, and the Company and each Company Subsidiary has performed all obligations required to be performed by it under each such Company Agreement and, to the Company’s knowledge, each other party to each such Company Agreement has performed all obligations required to be performed by it under such Company Agreement, except as would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. None obligation of the Company or any Company Subsidiary knows ofto pay severance or other compensation or benefits (other than accrued base salary, accrued commissions, accrued bonuses, accrued vacation pay, accrued floating holidays and legally mandated benefits), and (II) Company Benefit Plans other than offer letters or employment agreements);
(iv) Neither the Company nor any Company Subsidiary is a party to or bound by any Contract under which the Company or any Company Subsidiary has incurred any indebtedness or has received notice of, an obligation to incur indebtedness having an aggregate principal amount in excess of $200,000 or granting any violation or default under (Lien on any asset of the Company or any condition which with Company Subsidiary;
(v) Neither the passage of time or the giving of notice would cause such a violation of or default under) Company nor any Company Agreement relating Subsidiary is a party to or bound by any Inbound IP Contract as defined in Section 3.17(h);
(vi) Neither the ADS Business, Company nor any Company Subsidiary is a party to or bound by any Outbound IP Contract as defined in Section 3.17(h);
(vii) Neither the Acquired Assets Company nor any Company Subsidiary is a party to or bound by any Contract that (A) grants the Retained Liabilities except for violations other party to such Contract or defaults a third party (other than the Surviving Corporation or its Subsidiaries) “most favored nation” pricing or terms that would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation of apply to the Offer, the Merger Company or any of the other Transactions, Company Subsidiary or (2) otherwise prevent following the Effective Time, would apply to Parent, the Surviving Corporation or materially delay performance by any Company Subsidiary, or (B) except for any Contracts in the form of purchase orders, provide for fixed pricing for a term of 12 or more months;
(viii) Neither the Company of nor any of its material obligations under Company Subsidiary is a party to or bound by any Contract for any joint venture (whether in partnership, limited liability company or other organizational form) or alliance or similar arrangement;
(ix) Neither the Company nor any Company Subsidiary is a party to or bound by any Contract for any development, distribution or similar arrangement relating to any Company Product;
(x) Neither the Company nor any Company Subsidiary is a party to or bound by any Contract with any Governmental Entity;
(xi) Other than confidentiality agreements, neither the Company nor any Company Subsidiary is a party to or bound by or has adopted any agreement, retention program or incentive plan in connection with the transactions contemplated by this Agreement or (3) result in a Company Material Adverse Effect. The Company has delivered the sale process leading to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all of ; and
(xii) Neither the Company Material Contracts nor any Company Subsidiary is a party to or other Company Agreements relating to bound by any Contract involving the ADS Businesslease, the Acquired Assets license, use or the Retained Liabilities required to be disclosed in occupancy of real property.
(c) Section 3.13 3.13(c) of the Company Disclosure ScheduleLetter sets forth (i) (A) the 10 largest customers of the Company and (B) the 10 largest customers of each Company Subsidiary (determined on the basis of revenues received by the Company or the applicable Company Subsidiary, which are not filed as exhibits respectively, in the fiscal year ended March 31, 2012) (each such customer, a “Major Customer”); (ii) (A) the 10 largest suppliers to the Company SEC Documents and (B) the 10 largest suppliers to each Company Subsidiary (determined on the basis of amounts paid by the Company Material Contracts or other the applicable Company Agreements required to be disclosed Subsidiary, respectively, in Section 3.13 of the fiscal year ended March 31, 2012) (the “Major Suppliers”); and (iii) (A) the top five contract manufacturers for the Company Disclosure Schedule filed as exhibits to and (B) the top five contract manufacturers for each Company Subsidiary (determined on the basis of amounts paid by the Company SEC Documents are trueor the applicable Company Subsidiary, complete and correct copies of such contractsrespectively, in the fiscal year ended March 31, 2012) (the “Major Manufacturers”).
Appears in 2 contracts
Sources: Merger Agreement (Micronetics Inc), Merger Agreement (Mercury Computer Systems Inc)
Contracts. Except as filed as exhibits to the Company SEC Documents filed prior to the date hereof, or as disclosed in Section 3.13 of the Company Disclosure Schedule, there is no Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities (a) Neither Company nor any of its Subsidiaries is a party to or bound by any contract, arrangement, commitment or understanding (whether written or oral) (i) with respect to the benefits to employment of any party directors, officers or employees other than in the ordinary course of which will be increasedbusiness consistent with past practices, (ii) which, upon the consummation or the vesting stockholder approval of the benefits to any party of which transactions contemplated by this Agreement, will be accelerated, by (either alone or upon the occurrence of any additional acts or events) result in any payment (whether of severance pay or otherwise) becoming due from Parent, Company, the Transactions Surviving Entity or the value of any of the benefits their respective Subsidiaries to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) director officer or (b) which, as of the date hereofemployee thereof, (iiii) which is a “"material contract” " (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC), (ii) involves aggregate expenditures in excess to be performed after the date of $50,000 per annum, (iii) involves aggregate expenditures in excess of $50,000 and was this Agreement that has not entered into been filed or incorporated by reference in the ordinary course of business, Company SEC Documents filed prior to the date hereof or (iv) contains “take or pay” provisions applicable to the Company or any Company Subsidiary, (v) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to the Company, any Company Subsidiary or any of the Company’s current or future affiliates, or which materially restricts the conduct of any line of business by Company or otherwise restricts the Company, any operation of the Company’s current business of Company or future affiliates, any Company Subsidiary its Subsidiaries or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct business, in each case in any respect, (vi) would reasonably be expected to prohibit or materially delay the upon consummation of the Offer, Merger will materially restrict the Merger ability of Parent or the Surviving Entity to engage in any line of the other Transactions or (vii) is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded Assetbusiness. Each contract contract, arrangement, commitment or understanding of the type described in this Section 3.134.10, whether or not set forth in Section 3.13 of the Company Disclosure ScheduleSchedule or in such Company SEC Documents, is referred to herein as a “"Company Material Contract”. ."
(b) (i) Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities Contract is valid and binding on the Company and each Company Subsidiary party thereto and, to the Company’s knowledge, each other any of its Subsidiaries that is a party thereto, as applicable, and in full force and effect, and the (ii) Company and each Company Subsidiary of its Subsidiaries has in all material respects performed all obligations required to be performed by it to date under each such Company Agreement and, to the Company’s knowledge, each other party to each such Company Agreement has performed all obligations required to be performed by it under such Company AgreementContract, except as would notwhere such noncompliance, or would not be reasonably expected to, either individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on Company, and (1iii) prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the neither Company of nor any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. None of the Company or any Company Subsidiary Subsidiaries knows of, or has received notice of, the existence of any violation event or default under (or any condition which with the passage constitutes, or, after notice or lapse of time or both, will constitute, a material default on the giving part of notice would cause Company or any of its Subsidiaries under any such a violation of or default under) any Company Agreement relating to the ADS BusinessContract, the Acquired Assets or the Retained Liabilities except for violations or defaults that would notwhere such default, or would not be reasonably expected to, either individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in would not reasonably be expected to have a Company Material Adverse Effect. The Company has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all of the Company Material Contracts or other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities 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 or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contractsEffect on Company.
Appears in 2 contracts
Sources: Merger Agreement (Bruker Daltonics Inc), Merger Agreement (Bruker Axs Inc)
Contracts. (a) Except as filed as exhibits to the Company SEC Documents filed or furnished (and publicly available) prior to the date hereof, or as disclosed in Section 3.13 of the Company Disclosure Schedule, there is no Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities (a) any of the benefits to any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or (b) which, as of the date hereof, (i) is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC), (ii) that involves aggregate expenditures in excess of $50,000 per annum, 100 million or (iii) involves aggregate expenditures in excess of $50,000 and was not entered into in the ordinary course of business, (iv) contains “take or pay” provisions applicable to the Company or any Company Subsidiary, (v) that contains any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to the Company, Company or any Company Subsidiary or any of the Company’s current or future affiliatesSubsidiary, or which materially restricts the conduct of any line of business by the Company, any of the Company’s current Company or future affiliates, any Company Subsidiary or any geographic area in which the Company, Company or any Company Subsidiary or any of the Company’s current or future affiliates may conduct conducts business, in each case in any material respect, (vi) would reasonably be expected to prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions or (vii) is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded Asset. Each contract of the type described in this Section 3.13, whether or not set forth in Section 3.13 of the Company Disclosure Schedule, is referred to herein as a “Company Material Contract”. .” Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities Material Contract is valid and binding on the Company and each Company Subsidiary party thereto and, to the Company’s knowledge, each other party thereto, as applicable, and in full force and effect, and the Company and each Company Subsidiary has performed in all material respects all obligations required to be performed by it under each such Company Agreement and, to the Company’s knowledge, each other party to each such Company Agreement Material Contract has performed in all material respects all obligations required to be performed by it under such Company AgreementMaterial Contract, except except, in each case, as would not, or do not have and would not be reasonably expected toto have, individually or in the aggregate, (1) prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. 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 Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities except for violations or defaults that would not, or do not have and would not be reasonably expected toto have, individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. .
(b) The Company has delivered to the Purchaser Parent or provided made available to the Purchaser Parent for review, prior to the execution of this Agreement, true, true and complete and correct copies of all of the Company Material Contracts or other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities 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 or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, as true and complete and correct copies of such contracts.
Appears in 2 contracts
Sources: Merger Agreement (Koch Industries Inc), Merger Agreement (Georgia Pacific Corp)
Contracts. Except as for (i) agreements relating to mortgage --------- financing to be repaid on the Closing Date, (ii) the leases referred to in Section 2.14 below, or (iii) the ground and air space leases referred to in Section 2.15 below, Schedule 2.13 attached hereto lists all contracts or other ------------- understandings, written or oral, to which any Grantor is a party or by which any Grantor is bound that relate to the Properties or that will otherwise become binding on the Operating Partnership, the REIT or the Services Company following consummation of the Transactions (collectively, the "Contracts" and each, a "Contract"). For purposes of this Section 2.13, "Contracts" means (a) contracts which are required to be filed as exhibits to the Company SEC Documents filed prior to the date hereof, a registration statement or as disclosed in Section 3.13 of the Company Disclosure Schedule, there is no Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities (a) any of the benefits to any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or (b) which, as of the date hereof, (i) is a “material contract” (as such term is defined in report under Item 601(b)(10) 601 of Regulation S-K promulgated under the Securities Act and (b) contracts or other understandings which are known to the Indemnitors and involve performance of the SEC), (ii) involves aggregate expenditures services or delivery of goods or materials of an amount or value in excess of $50,000 per annum, (iii) involves aggregate expenditures in excess of $50,000 and was not or were entered into by a Grantor other than in the ordinary course of business. A true, complete and correct copy of each Contract (ivincluding all amendments, modifications and supplements thereto) contains “take or pay” provisions applicable has been delivered to the Company REIT or any Company Subsidiary, (v) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to the Company, any Company Subsidiary or any Operating Partnership. To the knowledge of the Company’s current or future affiliatesIndemnitors, or which restricts the conduct of any line of business by the Company, any each of the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct business, in each case in any respect, (vi) would reasonably be expected to prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions or (vii) is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded Asset. Each contract of the type described in this Section 3.13, whether or not set forth in Section 3.13 of the Company Disclosure Schedule, is referred to herein as a “Company Material Contract”. Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities Contracts is valid and binding on the Company and each Company Subsidiary party thereto and, to the Company’s knowledge, each other party thereto, as applicable, and is in full force and effect. To the knowledge of the Indemnitors, no Grantor and the Company and each Company Subsidiary has performed all obligations required to be performed by it under each such Company Agreement and, to the Company’s knowledge, each no other party to each any Contract has breached or defaulted under the terms of such Company Agreement has performed all obligations required to be performed by it under Contract or given or received any notice of default of any provision of such Company AgreementContract, except as would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. 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 for such a violation of or default under) any Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities except for violations breaches or defaults that would not, or would not be reasonably expected to, individually singly or in the aggregate, have a material adverse effect on the condition (1) prohibit financial or materially delay otherwise), earnings, assets, business affairs or business prospects of any Real Property, the ▇▇▇▇▇▇ Group's Business or, following the consummation of the OfferTransactions, the Merger REIT or any the Operating Partnership or on the Transactions. To the knowledge of the other TransactionsIndemnitors, (2) otherwise prevent or materially delay performance by each of the Company Contracts will continue to be binding in accordance with its terms following the consummation of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. The Company has delivered the Transactions and is freely assignable to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all of the Company Material Contracts or other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities 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 or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contractsOperating Partnership.
Appears in 2 contracts
Sources: Supplemental Representations, Warranties and Indemnity Agreement (Kilroy Realty Corp), Supplemental Representations, Warranties and Indemnity Agreement (Kilroy Realty Corp)
Contracts. Except (a) As of the date hereof, except as filed set forth as exhibits an exhibit to the Company SEC Documents filed prior to the date hereof, or as disclosed in and on Section 3.13 3.10(a) of the Company Disclosure ScheduleLetter, there is no neither the Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities (a) nor any of the benefits its Subsidiaries is a party to any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, bound by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or (b) which, as of the date hereof, any:
(i) is Contract relating to third-party indebtedness for borrowed money or any third-party financial guaranty in excess of $50,000.00;
(ii) non-competition agreements or any other agreements or arrangements that materially restrict the Company or any of its Subsidiaries or any of their respective Affiliates from engaging or competing in any line of business or in any geographic area, or which would so restrict the Company or any of its Subsidiaries following a “material contract” change in control of the Company; or
(iii) Contract required to be filed as such term is defined in 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.
(b) All Contracts of the SECtype described in clauses (a)(i), (ii) involves aggregate expenditures in excess of $50,000 per annum, and (iii) involves aggregate expenditures in excess of $50,000 and was not entered into in the ordinary course of business, (iv) contains “take or pay” provisions applicable above to which the Company or any Company Subsidiary, (v) contains any non-compete of its Subsidiaries is a party to or exclusivity provisions with respect to any line of business or geographic area with respect to the Company, any Company Subsidiary or any bound by as of the Company’s current or future affiliatesdate of this Agreement, or which restricts together with the conduct of any line of business by the Company, any Contracts set forth on Section 3.10(b) of the Company’s current or future affiliatesCompany Disclosure Letter, any are referred to herein as the “Company Subsidiary or any geographic area in which the CompanyMaterial Contracts” (provided that for purposes of Section 5.1, any Company Subsidiary or any Contracts of the Company’s current or future affiliates may conduct businesstype referred to in clause (i) above shall not be deemed to be Company Material Contracts). Except, in each case in any respectcase, (vi) as has not, and would not reasonably be expected to prohibit have, individually or materially delay in the consummation of the Offeraggregate, the Merger or any of the other Transactions or (vii) is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded Asset. Each contract of the type described in this Section 3.13, whether or not set forth in Section 3.13 of the Company Disclosure Schedule, is referred to herein as a “Company Material Contract”. Each Adverse Effect: (i) all Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities is Material Contracts are valid and binding on the Company and each and/or the relevant Subsidiary of the Company Subsidiary that is a party thereto and, to the Knowledge of the Company’s knowledge, each other party thereto, as applicablesubject to the Bankruptcy and Equity Exception, and (ii) all Company Material Contracts are in full force and effect, and (iii) the Company and each Company Subsidiary of its Subsidiaries has performed all material obligations required to be performed by it them under each such the Company Agreement andMaterial Contracts to which they are parties, (iv) to the Knowledge of the Company’s knowledge, each other party to each such a Company Agreement Material Contract has performed all material obligations required to be performed by it under such Company Agreement, except as would not, or would not be reasonably expected to, individually or in the aggregate, Material Contract and (1v) prohibit or materially delay the consummation of the Offer, the Merger or no party to any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. None of 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 Subsidiary knows Material Contract and neither the Company nor any of its Subsidiaries, nor, to the Knowledge of the Company, any other party to any Company Material Contract, has repudiated in writing any material provision thereof. Neither the Company nor any of its Subsidiaries has Knowledge of, or has received written 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 or permit termination, modification or acceleration under) any Company Agreement relating Material Contract or any other Contract to the ADS Businesswhich it is a party or by which it or any of its material properties or assets is bound, the Acquired Assets or the Retained Liabilities except for violations or defaults that would are not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) reasonably likely to result in a Company Material Adverse Effect. The Company has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all of the Company Material Contracts or other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities 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 or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contracts.
Appears in 2 contracts
Sources: Merger Agreement (Sykes Enterprises Inc), Merger Agreement (Ict Group Inc)
Contracts. Except (a) Section 3.15(a) of the Company Disclosure Letter sets forth, as of the date of this Agreement, a true, correct and complete list of each of the following Contracts to which any Acquired Company is a party or to or by which any Acquired Company or any of its assets or businesses is subject or bound (and any amendments, supplements and modifications thereto):
(i) any Contract that is a non-competition Contract or other Contract that (A) purports to limit in any material respect either the type of business in which any Acquired Company (or, after the Effective Time, any Parent Company) or any of its Affiliates may engage or the manner or geographic area in which any of them may so engage in any business, (B) would reasonably be expected to require the disposition of any material assets or type of business of any of the Acquired Companies (or, after the Effective Time, any Parent Company) or any of their respective Affiliates in connection with the consummation of the Transactions, (C) is a Contract that grants “most favored nation” or similar status that has had, or would reasonably be expected to have, a material impact on the Acquired Companies, taken as a whole, following the Effective Time, would apply to Parent or any of its Subsidiaries, including any of the Acquired Companies, (D) contains any exclusivity, preferred status or similar provision that prohibits or limits in any material respect the right of any of the Acquired Companies (or, after the Effective Time, would prohibit or limit in any material respect the right of any of the Acquired Companies or the Parent Companies) to make, sell, market, advertise or distribute any products or services, use, transfer, license, distribute or enforce any of their respective Intellectual Property rights or otherwise conduct its business, (E) obligates any of the Acquired Companies to purchase or obtain a minimum or specified amount of any product or service from any Person for more than $500,000 in the aggregate on an annual basis or (F) involves the obligation or potential obligation of any of the Acquired Companies to make any earn-out or similar payments to any Person;
(ii) (A) any indenture, loan or credit agreement, security agreement, guarantee, note, mortgage, letter of credit, reimbursement agreement or other Contract, in any such case relating to indebtedness of any Acquired Company having an outstanding principal amount in excess of $1,000,000 (except for such indebtedness between the Acquired Companies or guaranties by any Acquired Company of indebtedness of any other Acquired Company (not including guaranties by any Company Insurance Subsidiary or of indebtedness of any Company Insurance Subsidiary)) or (B) any guarantee by any Company Insurance Subsidiary of indebtedness or any other obligation of any other Acquired Company or other Affiliate of such Company Insurance Subsidiary;
(iii) any Contract relating to any joint venture, strategic alliance or partnership material to the Acquired Companies, taken as a whole;
(iv) any Contract under which any of the Acquired Companies made payments of more than $750,000 during the fiscal year ended December 31, 2017 or reasonably expects to make payments of more than $750,000 during the fiscal year ending December 31, 2018 and, in either case, is not terminable by any Acquired Company upon notice of sixty (60) days or less without penalty;
(v) any Contract under which any of the Acquired Companies received payments of more than $500,000 during the fiscal year ended December 31, 2017 or reasonably expects to receive payments of more than $500,000 during the fiscal year ending December 31, 2018;
(vi) (A) any reinsurance treaty or agreement, including any retrocessional agreement, that is material to any Acquired Company pursuant to which any Acquired Company cedes or assumes business, (B) any such treaty or agreement or instrument that has been funded (in whole or in part) by third party capital or (C) any trust agreement, security agreement or other form of collateral agreement entered into in connection with any Contract covered by the immediately foregoing clauses (A) or (B) (collectively, the “Company Reinsurance Agreements”);
(vii) (A) any Contract with any Company Agent that, during the fiscal year ended December 31, 2017, produced insurance policies or contracts issued by an Company Insurance Subsidiary which resulted in greater than five percent (5%) of the Company Insurance Subsidiaries’ gross written premiums for the year ended December 31, 2017 or (B) any Contract with any Company Agent that is a managing general agency contract or a managing general underwriting contract under applicable Law;
(viii) any Contract that provides for any standstill or similar restriction pursuant to which any Acquired Company has agreed to restrictions on the acquisition of assets or securities of another Person or to which another Person has agreed to restrictions on the acquisition of assets or securities of any Acquired Company;
(ix) any employment Contract that requires aggregate payments with respect to annual salary and target bonus in excess of $350,000 on an annual basis or is not terminable without cause by any of the Acquired Companies by notice of not more than sixty (60) days or without any termination payment or penalty, or any severance, retention, change in control or similar Contract;
(x) any Contract that grants any rights of first refusal, rights of first offer, rights of first negotiation or other similar rights to any Person with respect to any material asset, property or business of the Acquired Companies, taken as a whole;
(xi) any Contract that relates to the acquisition or disposition of any business, capital stock or assets (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration in excess of $3,000,000 under which any of the Acquired Companies has any outstanding earn out, deferred payment, indemnification or contingent obligations, other than this Agreement and any Contract to purchase or sell goods or services in the ordinary course of business consistent with past practice;
(xii) any Contract that requires the Acquired Companies to make any capital commitments or capital expenditures in excess of $1,000,000 during any twelve (12) month period following the date of this Agreement;
(xiii) any Contract that is a settlement or similar Contract with any Governmental Entity or any other Person to which any of the Acquired Companies or any of its assets or properties is subject with material ongoing obligations of any of the Acquired Companies, taken as a whole;
(xiv) any Contract purporting to indemnify or hold harmless any director, officer or employee of any of the Acquired Companies (other than the Company Charter, the Company Regulations and the organizational documents of the Company’s Subsidiaries);
(xv) any Contract that is required to be disclosed by the Company pursuant to Item 404 of Regulation S-K under the Securities Act;
(xvi) any lease, license, occupancy agreement, sublease, waiver, side letter or guaranty relating to any real property which any Acquired Company leases, uses or occupies or has the right to lease, use or occupy (collectively, the “Company Real Property Leases”);
(xvii) any Contract pursuant to which any Intellectual Property right that is material to the Acquired Companies, taken as a whole, is licensed or sold to or by any Acquired Company, other than (A) license agreements for any non-customized commercially available Software, (B) Contracts between an Acquired Company, on the one hand, and an employee or consultant of an Acquired Company, on the other hand, entered into in the ordinary course of business consistent with past practice and (C) Contracts which contain non-exclusive licenses or sublicenses or sales of such Intellectual Property between an Acquired Company, on the one hand, and a supplier, vendor, agent or broker of an Acquired Company, on the other hand, entered into in the ordinary course of business consistent with past practice;
(xviii) any disaster recovery or data center Contract;
(xix) any Contract entered into prior to the date hereof that is required to be filed by the Company in a future report to be filed or furnished to the SEC as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act, excluding those compensatory plans described in Item 601(b)(10)(iii) of Regulation S-K under the Securities Act, that has not been filed as exhibits an exhibit to or incorporated by reference in the Company SEC Documents filed prior to the date hereofof this Agreement; and
(xx) any Contract that would or would reasonably be expected to prevent, materially delay or as disclosed in Section 3.13 impair the consummation of the Company Disclosure Schedule, there is no Company Agreement relating Transactions. All Contracts required to be filed as exhibits to the ADS Business, Company SEC Documents have been so filed in a timely manner. Each Contract entered into prior to the Acquired Assets or the Retained Liabilities (a) any of the benefits date hereof that is required to any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, filed by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except Company as disclosed pursuant to Section 3.11) or (b) which, as of the date hereof, (i) is a “material contract” (as such term is defined in pursuant to Item 601(b)(10) of Regulation S-K of under the SEC)Securities Act, (ii) involves aggregate expenditures in excess of $50,000 per annum, (iii) involves aggregate expenditures in excess of $50,000 and was not entered into in the ordinary course of business, (iv) contains “take or pay” provisions applicable to the Company or any Company Subsidiary, (v) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to the Company, any Company Subsidiary or any of the Company’s current or future affiliates, or which restricts the conduct of any line of business by the Company, any of the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct business, in each case in any respect, (vi) would reasonably be expected to prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions or (vii) is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded Asset. Each contract of the type excluding those compensatory plans described in this Section 3.13Item 601(b)(10)(iii) of Regulation S-K under the Securities Act, whether or not set forth and each Contract required to be listed in Section 3.13 3.15(a) or Section 3.18(c) of the Company Disclosure Schedule, Letter is referred to herein as a “Material Company Contract.”
(b) True, correct and complete copies (subject to apparent redactions) of all Material Contract”Company Contracts have been made available to Parent in accordance with all applicable Laws. Each Material Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities Contract is valid and binding on the each Acquired Company and each Company Subsidiary party thereto and, to the knowledge of the Company’s knowledge, each other party thereto, as applicable, thereto and is in full force and effect, and the Company and except in each Company Subsidiary has performed all obligations required case for such failures to be performed by it under each such Company Agreement and, to the Company’s knowledge, each other party to each such Company Agreement has performed all obligations required valid and binding or to be performed by it under such Company Agreement, except as would not, or would not be reasonably expected toin full force and effect that, individually or in the aggregate, (1) prohibit or materially delay the consummation of the Offerhave not had, the Merger or any of the other Transactionsand would not reasonably be expected to have, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect, subject to the Enforceability Limitations. None The Company has not terminated, waived, amended, released or modified in any respect any provision of any standstill or similar agreement with respect to the Company to which it is currently or any has, within the twelve (12) months immediately preceding the date hereof, been a party. Except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Company Subsidiary knows ofMaterial Adverse Effect, or has received notice of, any violation there is no breach or default under (or any condition which Material Company Contract by any of the Acquired Companies party thereto or, to the knowledge of the Company, any other party thereto and no event has occurred that with the passage lapse of time or the giving of notice or both would cause such constitute a violation of breach or default under) any Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities except for violations or defaults that would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or thereunder by any of the other TransactionsAcquired Companies party thereto or, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. The Company has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all knowledge of the Company Material Contracts or Company, any other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities 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 or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contractsparty thereto.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Infinity Property & Casualty Corp), Agreement and Plan of Merger (KEMPER Corp)
Contracts. Except as filed as exhibits to the Company SEC Documents filed prior to the date hereof, or as disclosed in Section 3.13 of the Company Disclosure Schedule, there is no Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities (a) For purposes of this Agreement, a “Parent Material Contract” shall include each Contract of the following types to which Parent or any of the benefits to any its Subsidiaries is a party of or by which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions their respective properties or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or (b) which, assets is bound as of the date hereof, :
(i) is any Contract identified on the lists of exhibits to the Parent SEC Documents;
(ii) any Contract that would be required to be filed by Parent as a “material contract” (as such term is defined in pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Act;
(iii) any Contract that (A) materially limits the ability of Parent or any of its Subsidiaries (or, following the consummation of the SECTransactions, would reasonably be expected to materially limit the Surviving Company or the Opco Surviving Company) to compete in any line of business or with any Person or in any geographic area (including any Contract containing any area of mutual interest (but excluding areas of mutual interest under joint operating agreements), joint bidding area, joint acquisition area or non-compete or similar type of restriction), (iiB) involves aggregate expenditures materially restricts the right of Parent or any of its Subsidiaries (or, following the consummation of the Transactions, would reasonably be expected to materially limit the ability of the Surviving Company or the Opco Surviving Company) to sell to or purchase from any Person any products or services, or use, transfer or distribute, or enforce any of their rights with respect to, any of their material assets, or (C) grants the other party or any third Person “most favored nation” status with respect to any material obligation (other than pursuant to customary royalty pricing provisions in Oil and Gas Leases or customary preferential rights in joint operating agreements, unit agreements or participation agreements affecting the Oil and Gas Properties of Parent or any of its Subsidiaries);
(iv) any material joint venture, partnership or limited liability agreement, other than any customary joint operating agreements, unit agreements or participation agreements affecting the Oil and Gas Properties of Parent or any of its Subsidiaries;
(v) any Contract that constitutes a commitment of Parent or any of its Subsidiaries relating to Indebtedness and having an outstanding principal amount in excess of $50,000 per annum100,000,000, other than agreements solely between or among Parent and its Subsidiaries;
(iiivi) involves any Contract involving any pending acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests for aggregate expenditures consideration (in excess one or a series of transactions) under such Contract of $50,000 and was not entered into 100,000,000 or more (other than acquisitions or dispositions of inventory or the purchase or sale of Hydrocarbons, in each case, in the ordinary course of businessbusiness consistent with past practice);
(vii) each joint development agreement, (iv) contains “take exploration agreement, participation, farmout, farmin or pay” provisions applicable to the Company program agreement or any Company Subsidiary, (v) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to the Company, any Company Subsidiary similar contract requiring Parent or any of the Company’s current or future affiliates, or which restricts the conduct of any line of business by the Company, any of the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct business, in each case in any respect, (vi) its Subsidiaries to make expenditures that would reasonably be expected to prohibit or materially delay exceed $100,000,000 in the consummation aggregate during the 12-month period following the date of the Offerthis Agreement, the Merger other than customary joint operating agreements and continuous development obligations under Oil and Gas Leases;
(viii) each Contract for any Derivative Transaction with a notional value in excess of $35,000,000;
(ix) each Contract to which Parent or any of the other Transactions or (vii) its Subsidiaries is necessary a party for the conduct purchase, sale, swap or exchange of minerals or mineral rights having a value in excess of $100,000,000, in each case, for which such purchase, sale, swap or exchange of minerals or mineral rights remain pending (and excluding, for the avoidance of doubt, the purchase and sale of Hydrocarbons in the ordinary course of business consistent with past practices); and
(x) each Contract for lease of personal property or real property (other than Oil and Gas Properties) involving payments in excess of $100,000,000 in any calendar year or aggregate payments in excess of $200,000,000 that is not terminable without penalty or other liability to Parent (other than any ongoing obligation pursuant to such contract that is not caused by any such termination) within 90 days, other than Contracts related to drilling rigs.
(b) Except for matters which, individually or in the aggregate, have not had and would not reasonably be expected to have a Parent Material Adverse Effect (provided, that clause (D) of the ADS Business as currently conducted but constitutes an Excluded Asset. Each contract definition of the type described in “Material Adverse Effect” shall be disregarded for purposes of this Section 3.134.16(b)), whether or not set forth in Section 3.13 of the Company Disclosure Schedule, is referred to herein as a “Company (i) each Parent Material Contract”. Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities Contract is valid and binding on the Company Parent and each Company Subsidiary party thereto and, any of its Subsidiaries to the Company’s knowledge, each other extent such Subsidiary is a party thereto, as applicable, and to the knowledge of Parent, each other party thereto, and is in full force and effecteffect and enforceable in accordance with its terms, subject, as to enforceability, to Creditors’ Rights, and the Company and each Company Subsidiary has performed all obligations required to be performed (ii) there is no pending or unresolved default under any Parent Material Contract by it under each such Company Agreement andParent or any of its Subsidiaries or, to the Company’s knowledgeknowledge of Parent, each any other party thereto, and no event or condition has occurred that remains pending or unresolved that constitutes, or, after notice or lapse of time or both, would reasonably be expected to each such Company Agreement has performed all obligations required to be performed by it under such Company Agreementconstitute, except as would not, or would not be reasonably expected to, individually or in a default on the aggregate, (1) prohibit or materially delay the consummation part of the Offer, the Merger Parent or any of its Subsidiaries or, to the knowledge of Parent, any other Transactionsparty thereto under any such Parent Material Contract, (2) otherwise prevent nor has Parent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. None of the Company or Subsidiaries received 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 Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities except for violations or defaults that would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement such default, event or (3) result in a Company Material Adverse Effect. The Company has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all of the Company Material Contracts or other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities 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 or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contractscondition.
Appears in 2 contracts
Sources: Merger Agreement (Pioneer Natural Resources Co), Merger Agreement (Parsley Energy, Inc.)
Contracts. Except as filed as exhibits to the Company SEC Documents filed prior to the date hereof, or as disclosed in (i) Section 3.13 3.01(i) of the Company Disclosure Schedule, there is no Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities (a) any of the benefits to any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or (b) whichLetter sets forth, as of the date hereofof this Agreement, (iwith specific reference to the subsection of this Section 3.01(i) to which such Contract relates) a complete and correct list of:
(A) each Contract pursuant to which the Company or any of its Subsidiaries has agreed not to compete with any person in any area or to engage in any activity or business, or pursuant to which any benefit or right is required to be given or lost, or any penalty or detriment is incurred, as a result of so competing or engaging;
(B) each Contract to or by which the Company or any of its Subsidiaries is a “material contract” party or bound providing for exclusivity or any similar requirement or pursuant to which the Company or any of its Subsidiaries is restricted in any way, or which after the Effective Time could restrict Parent or any of its Subsidiaries in any way, with respect to the development, manufacture, marketing or distribution of their respective products or services or otherwise with respect to the operation of their businesses, or pursuant to which any benefit or right is required to be given or lost, or any penalty or detriment is incurred, as a result of non-compliance with any such exclusive or restrictive requirements or which requires the Company or any of its Subsidiaries to refrain from granting license or franchise rights to any other person;
(as such term C) each Contract to or by which the Company or any of its Subsidiaries is defined in Item 601(b)(10a party or bound or with respect to which the Company or any of its Subsidiaries has any obligation with (1) of Regulation S-K any affiliate of the SECCompany or any of its Subsidiaries (excluding Contracts entered into between the Company and any of its Subsidiaries), (ii2) involves any Company Personnel, (3) any union or other labor organization or (4) any affiliate of any such person (other than, in each case, (I) offer letters or employment agreements that are terminable at will by the Company or any of its Subsidiaries both without any penalty and without any obligation of the Company or any of its Subsidiaries to pay severance or other compensation or benefits (other than accrued base salary, accrued commissions, accrued bonuses, accrued vacation pay, accrued floating holidays and legally mandated benefits), (II) invention assignment and confidentiality agreements relating to the assignment of inventions to the Company or any of its Subsidiaries not involving the payment of money (other than compensation for the service of employees and non-employee directors) and (III) Benefit Plans and Benefit Agreements other than offer letters or employment agreements);
(D) each Contract under which the Company or any of its Subsidiaries has incurred any indebtedness having an aggregate expenditures principal amount in excess of $50,000 per annum500,000;
(E) each Contract to or by which the Company or any of its Subsidiaries is a party or bound creating or granting a Lien (including Liens upon properties or assets acquired under conditional sales, capital leases or other title retention or security devices), other than (1) Liens for taxes not yet due and payable, that are payable without penalty or that are being contested in good faith and for which adequate reserves have been established, (iii2) involves aggregate expenditures in excess of $50,000 Liens for assessments and was not entered into other governmental charges or landlords’, carriers’, warehousemen’s, mechanics’, repairmen’s, workers’ or similar Liens incurred in the ordinary course of business, consistent with past practice, in each case for sums not yet due and payable or due but not delinquent or being contested in good faith by appropriate proceedings, (iv3) contains Liens incurred in the ordinary course of business, consistent with past practice, in connection with workers’ compensation, unemployment insurance and other types of social security or to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, government contracts, performance and return of money bonds and similar obligations and (4) Liens incurred in the ordinary course of business consistent with past practice that are not reasonably likely to adversely interfere in a material way with the use of the properties or assets encumbered thereby (collectively, “take Permitted Liens”);
(F) each Contract to or payby which the Company or any of its Subsidiaries is a party or bound (other than Benefit Plans and Benefit Agreements) containing any provisions (1) contemplating or relating in any way to a “change in control” provisions applicable or similar event with respect to the Company or any Company Subsidiaryone or more of its Subsidiaries, (v) contains any non-compete including provisions requiring consent or exclusivity provisions with respect to any line of business approval of, or geographic area with respect to the Companynotice to, any Company Subsidiary Governmental Entity or any other person in the event of a change in control of the Company’s current Company or future affiliatesone or more of its Subsidiaries, or which restricts otherwise having the conduct effect of any line of business by the Company, any of the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct business, in each case in any respect, (vi) would reasonably be expected to prohibit or materially delay providing that the consummation of the Offer, the Merger or any of the other Transactions transactions contemplated by this Agreement or the execution, delivery or effectiveness of this Agreement will materially conflict with, result in a material violation or material breach of, or constitute a default (with or without notice or lapse of time or both) under, such Contract, or give rise under such Contract to any right of, or result in, a termination, right of first refusal, material amendment, revocation, cancelation or material acceleration of any obligation, or a loss of a material benefit or the creation of any material Lien upon any of the properties or assets of the Company, Parent or any of their respective Subsidiaries, or to any increased, guaranteed, accelerated or additional material rights or material entitlements of any person or (vii2) is necessary for having the conduct effect of the ADS Business as currently conducted but constitutes an Excluded Asset. Each contract of the type described in this Section 3.13, whether or not set forth in Section 3.13 of the Company Disclosure Schedule, is referred to herein as a “Company Material Contract”. Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities is valid and binding on the Company and each Company Subsidiary party thereto and, to the Company’s knowledge, each other party thereto, as applicable, and in full force and effect, and the Company and each Company Subsidiary has performed all obligations required to be performed by it under each such Company Agreement and, to the Company’s knowledge, each other party to each such Company Agreement has performed all obligations required to be performed by it under such Company Agreement, except as would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay providing that the consummation of the Offer, the Merger or any of the other Transactionstransactions contemplated by this Agreement or the execution, delivery or effectiveness of this Agreement will require that a third party be provided with access to source code or that any source code be released from escrow and provided to any third party;
(G) each Contract to or by which the Company or any of its Subsidiaries is a party or bound providing for payments of royalties or other license fees to third parties in excess of $50,000 annually that is not terminable without penalty on 90 days’ or less notice;
(H) each Contract to or by which the Company or any of its Subsidiaries is a party or bound granting a third party any license to Intellectual Property that is not limited to the internal use of such third party;
(I) each Contract pursuant to which the Company or any of its Subsidiaries has been granted any license to Intellectual Property, other than software licenses for generally commercially available off-the-shelf software (such as Symphony, Microsoft Word or Excel, WordPerfect or other word processing, spreadsheet, desktop operating system or e-mail software) readily substitutable in the operation of the business of the Company and its Subsidiaries;
(J) each Contract to or by which the Company or any of its Subsidiaries is a party or bound granting the other party to such Contract or a third party “most favored nation” pricing or terms that (1) applies to the Company or any of its Subsidiaries or (2) otherwise prevent following the Effective Time, would apply to Parent or materially delay any of its Subsidiaries other than the Surviving Corporation or its Subsidiaries;
(K) each Contract pursuant to which the Company or any of its Subsidiaries has agreed or is required to provide any third party with access to source code, to provide for source code to be put in escrow or to grant a contingent license to source code;
(L) each Contract containing any “non-solicitation”, “no-hire” or similar provision that restricts the Company or any of its Subsidiaries in any material respect;
(M) each Contract to or by which the Company or any of its Subsidiaries is a party or bound for any joint venture (whether in partnership, limited liability company or other organizational form) or alliance or similar arrangement;
(N) each Contract to or by which the Company or any of its Subsidiaries is a party or bound for any development, marketing, resale, distribution or similar arrangement relating to any product or service;
(O) each Contract to or by which the Company or any of its Subsidiaries is a party or bound with any Governmental Entity;
(P) each material Contract to or by which the Company or any of its Subsidiaries is a party or bound entered into in the last five years in connection with the settlement or other resolution of any suit, claim, action, investigation or proceeding that has any material continuing obligations, liabilities or restrictions;
(Q) each Contract to or by which the Company or any of its Subsidiaries is a party or bound providing for future performance by the Company of or any of its material obligations under this Agreement Subsidiaries in consideration of amounts previously paid;
(R) [RESERVED];
(S) each Contract (other than the Company’s standard form service level agreements) to or (3) result in a Company Material Adverse Effect. None of by which the Company or any of its Subsidiaries is a party or bound providing for liquidated damages (other than in an immaterial amount);
(T) each material Contract to or by which the 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 Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities except for violations or defaults that would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of its Subsidiaries is a party or bound for professional services engagements for a fixed fee that guarantees a specific result; (U) each Contract between the other Transactions, Company or any of its Subsidiaries and any of the 100 largest customers of the Company and its Subsidiaries (2) otherwise prevent or materially delay performance determined on the basis of revenues received by the Company of or any of its material obligations under this Agreement or Subsidiaries in the four consecutive fiscal quarter period ended March 31, 2015 (3) result in each such customer, a Company Material Adverse Effect. The Company has delivered to the Purchaser or provided to the Purchaser for review“Major Customer”, prior to the execution of this Agreementand each such Contract, true, complete and correct copies of all of the Company Material Contracts or other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities 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 or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contracts.a “Major Customer Contract”));
Appears in 2 contracts
Sources: Merger Agreement (Merge Healthcare Inc), Merger Agreement (Merge Healthcare Inc)
Contracts. Except as filed as exhibits to the Company SEC Documents filed prior to the date hereof, or as disclosed in Section 3.13 of the Company Disclosure Schedule, there is no Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities (a) any of the benefits to any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or (b) whichSchedule 4.24 lists, as of the date hereofof this Agreement, (i) all Contracts to which the Company or any of its Subsidiaries is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K party and that fall within any of the SEC), following categories:
(iia) involves aggregate expenditures in excess of $50,000 per annum, (iii) involves aggregate expenditures in excess of $50,000 and was Contracts not entered into in the ordinary course of the Company's and its Subsidiaries' business other than those that are not material to the Company's or its Subsidiaries' business;
(b) joint venture, partnership and similar agreements;
(ivc) contains “take or pay” provisions applicable Contracts containing covenants purporting by their express terms to limit the freedom of the Company or any Company Subsidiary, (v) contains any non-its Subsidiaries to compete or exclusivity provisions with respect to in any line of business or in any geographic area with respect or to hire any individual or group of individuals;
(d) Contracts that, after the CompanyEffective Time, any would have the effect of limiting the freedom of Parent or its Subsidiaries (other than the Company Subsidiary or any of the Company’s current or future affiliates, or which restricts the conduct of and its Subsidiaries) to compete in any line of business by the Company, in any geographic area or to hire any individual or group of individuals;
(e) Contracts with any labor organization or union;
(f) Contracts providing for "earn-outs," "savings guarantees," "performance guarantees" (other than performance guarantees for wholly owned Subsidiaries of the Company’s current ) or future affiliates, any other contingent payments by the Company Subsidiary or any geographic area in which its Subsidiaries involving more than $50,000 over the Company, any Company Subsidiary or any term of the Company’s current Contract; and
(g) Contracts involving payments to or future affiliates may conduct businessby the Company and its Subsidiaries taken as a whole, or which are reasonably likely to result in each case in any respectthe incurrence by the Company and its Subsidiaries, (vi) would reasonably be expected to prohibit or materially delay the consummation taken as a whole, of the Offerliabilities, the Merger or any of the other Transactions or (vii) is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded Assetat least $5,000,000 per year. Each contract of the type described in this Section 3.13, whether or not set forth in Section 3.13 All such Contracts are valid and binding obligations of the Company Disclosure Scheduleor its Subsidiaries, is referred to herein as a “Company Material Contract”. Each Company Agreement relating to the ADS Businesscase may be, the Acquired Assets or the Retained Liabilities is valid and binding on the Company and each Company Subsidiary party thereto and, to the knowledge of the Company’s knowledge, the valid and binding obligation of each other party thereto, as applicableexcept such Contracts that, if not so valid and in full force and effect, and the Company and each Company Subsidiary has performed all obligations required to be performed by it under each such Company Agreement and, to the Company’s knowledge, each other party to each such Company Agreement has performed all obligations required to be performed by it under such Company Agreement, except as would not, or would not be reasonably expected tobinding, individually or in the aggregate, (1) prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in have not had and could not reasonably be expected to have a Company Material Adverse Effect. None of Neither the Company or its Subsidiaries, nor, to the knowledge of the Company, any Company Subsidiary knows other party thereto, is in violation of or in default in respect of, nor has there occurred an event or has received notice ofcondition, any violation or default under (or any condition which that with the passage of time or the giving of notice (or both), would cause constitute a default under or permit the termination of, any such a violation of or default under) any Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities Contract except for such violations or defaults that would not, under or would not be reasonably expected toterminations that, individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in have not had and could not reasonably be expected to have a Company Material Adverse Effect. The Company has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all of the Company Material Contracts or other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities 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 or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contracts.
Appears in 2 contracts
Sources: Merger Agreement (Andrew Corp), Agreement and Plan of Merger (Allen Telecom Inc)
Contracts. Except as (a) Other than any Contract filed as exhibits an exhibit to the Company SEC Documents Documents, neither the Company nor any of its Subsidiaries is a party to or bound by any Contract that is of a nature required to be filed prior as an exhibit to a report or filing under the date hereof, Securities Act or as disclosed in Exchange Act. Section 3.13 3.15(a) of the Company Disclosure Schedule, there is no Letter sets forth a true and complete list of each of the following Contracts to which the Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities (a) any of its Subsidiaries is a party or by which the benefits to any party of which will be increased, Company or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions its Subsidiaries or the value of any of the benefits to their assets or businesses are bound (and any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or (b) whichamendments, as of the date hereof, supplements and modifications thereto):
(i) is any Contract that would be required to be filed by the Company as a “material contract” (as such term is defined in pursuant to Item 601(b)(10) of Regulation S-K of under the SEC), Securities Act;
(ii) any Contract that is a non-competition Contract or other Contract that (A) purports to limit in any material respect either the Company’s or its Subsidiaries’ ability to compete in any type of business in which the Company or any of the Subsidiaries of the Company (or, after the Effective Time, Parent or any of its Subsidiaries) or any of their respective Affiliates, may engage or the manner or geographic area in which any of them may so engage in any business, (B) would require the disposition of any material assets or line of business of the Company or any of its Subsidiaries (or, after the Effective Time, Parent or any of its Subsidiaries) or any of their respective Affiliates as a result of the consummation of the transactions contemplated by this Agreement, (C) is a Contract that grants “most favored nation” or similar status that, following the Effective Time, would apply to Parent or any of its Subsidiaries, including the Company or any of its Subsidiaries; (D) contains any “exclusivity” or similar provision or otherwise prohibits or limits, in any material respect, the right of the Company or any of its Subsidiaries (or, after the Effective Time, would prohibit or limit, in any material respect, the right of Parent or any of its Subsidiaries) to make, sell, market, advertise or distribute any products or services or use, transfer, license, distribute or enforce any of their respective Intellectual Property rights; (E) obligates the Company or any of its Subsidiaries to purchase or obtain a minimum or specified amount of any product or service from any Person; or (F) that involves aggregate expenditures the obligation or potential obligation of the Company or any of its Subsidiaries to make any “earn-out” or similar payments to any Person;
(iii) any Contract under which any Acquired Company has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness for borrowed money in excess of $50,000 per annum2,500,000 (except for such indebtedness between the Acquired Companies or guaranties by any Acquired Company of indebtedness of any Acquired Company);
(iv) any Contract relating to any material joint venture or partnership;
(v) any Contract under which the Company or any of its Subsidiaries made or received payments of more than $5,000,000 during the fiscal year ended August 31, 2014 or reasonably expects to make or receive payments of more than $5,000,000 for the fiscal year ending August 31, 2015 and, in either case, is not terminable upon notice of 30 days or less without penalty;
(iiivi) involves any Contract that restricts or prohibits the Company or any Subsidiary of the Company (or after the Effective Time would restrict or prohibit Parent or any of its Subsidiaries) from hiring or soliciting any individual to perform employment or consulting services;
(vii) any Contract relating to any material dealer, reseller, remarketer, distribution, joint marketing, affiliate or development, delivery, manufacturing or similar agreement under which the Company or any of its Subsidiaries made payments of more than $5,000,000 during the fiscal year ended August 31, 2014;
(viii) any Contract that contains a standstill or similar restriction enforceable against the Company or any of its Subsidiaries;
(ix) any Contract for the lease of real property by the Company or any of its Subsidiaries that by its terms calls for aggregate expenditures annual rent payments of more than $1,000,000 by the Company and its Subsidiaries;
(x) any employment Contract that requires aggregate payments with respect to annual salary and target bonus in excess of $50,000 1,000,000 on an annual basis and was is not entered into terminable without cause by the Company or any of its Subsidiaries by notice of not more than 30 days and without any termination payment or penalty, or any severance Contract;
(xi) any collective bargaining agreement or other Contract with any labor organization, union or association;
(xii) any Contract that grants any rights of first refusal, rights of first negotiation or other similar rights to any person with respect to any material asset of the Company and its Subsidiaries;
(xiii) any Contract that relates to any material interest rate, derivatives or hedging transaction (including with respect to commodities);
(xiv) any Contract that relates to the acquisition or disposition of any business, capital stock or assets (whether by merger, sale of stock, sale of assets or otherwise), other than a Contract to purchase goods or services in the ordinary course of business, (iv) contains “take or pay” provisions applicable to under which the Company or any Company Subsidiary, (v) contains of its Subsidiaries has any non-compete outstanding contingent or exclusivity provisions with respect to any line of business or geographic area with respect other obligations that are material to the CompanyCompany and its Subsidiaries, taken as a whole;
(xv) any Contract in which the Company Subsidiary purports to indemnify or hold harmless any director, officer or employee of the Company or any of its Subsidiaries (other than the Company Constituent Documents or organizational documents of the Company’s current Subsidiaries); and
(xvi) any Contract to which any holder of capital stock or future affiliates, other securities of the Company is a party or which restricts the conduct of any line of business that is required to be disclosed by the Company, any Company pursuant to Item 404 of Regulation S-K under the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct business, in each case in any respect, (vi) would reasonably be expected to prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions or (vii) is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded AssetSecurities Act. Each contract of the type such Contract as described in this Section 3.13, whether 3.15(a) or not set forth Section 3.18(c) or listed in Section 3.13 3.15(a) or Section 3.18(c) of the Company Disclosure ScheduleLetter, is referred to herein as a “Company Material Contract”.
(b) True and complete copies of all Material Contracts of the Company and its Subsidiaries have been made available to Parent in accordance with all applicable Laws. For purposes of this Agreement, “Contract” means any note, bond, mortgage, indenture, contract, arrangement, undertaking, purchase order, bid, agreement, lease or other instrument or obligation (whether written or oral), together with all amendments thereto. Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities Material Contract is valid and binding on the Company and each Company Subsidiary of its Subsidiaries party thereto and, to the knowledge of the Company’s knowledge, each any other party thereto, as applicable, and is in full force and effect, and the Company and except in each Company Subsidiary has performed all obligations required case for such failures to be performed by it under each such Company Agreement and, to the Company’s knowledge, each other party to each such Company Agreement has performed all obligations required valid and binding or to be performed by it under such Company Agreement, except as would not, or would not be reasonably expected toin full force and effect that, individually or in the aggregate, (1) prohibit or materially delay the consummation of the Offerhave not had, the Merger or any of the other Transactionsand could not reasonably be expected to have, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. None Except, individually or in the aggregate, as has not had, and could not reasonably be expected to have, a Material Adverse Effect, and except as set forth in Section 3.15(b) of the Company Disclosure Letter, there is no default under any Contract by the Company or any Company Subsidiary knows ofof its Subsidiaries party thereto or, or has received notice ofto the knowledge of the Company, any violation or default under (or any condition which other party thereto, and no event has occurred that with the passage lapse of time or the giving of notice or both would cause such constitute a violation of or default under) any thereunder by the Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities except for violations or defaults that would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactionsits Subsidiaries party thereto or, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. The Company has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all knowledge of the Company Material Contracts or Company, any other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities 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 or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contractsparty thereto.
Appears in 2 contracts
Sources: Merger Agreement (Ingredion Inc), Merger Agreement (Penford Corp)
Contracts. Except as filed as exhibits to the Company SEC Documents filed prior to (a) As of the date hereof, or the exhibit index to the Company's most recently filed Annual Report on Form 10-K, as disclosed in Section 3.13 supplemented by Schedule 3.12(a) of the Company Disclosure Schedule, there includes each contract (including all amendments thereto) to which the Company or any Company Subsidiaries is no Company Agreement relating a party or by which any of them is bound and (i) which would be required, pursuant to the ADS BusinessExchange Act and the rules and regulations thereunder, the Acquired Assets or the Retained Liabilities (a) any to be filed as an exhibit to an Annual Report of the benefits to any party of which will be increasedCompany on Form 10-K, or the vesting a Quarterly Report of the benefits to any party of which will be accelerated, by the occurrence of any Company on Form 10-Q or a Current Report of the Transactions or the value of any of the benefits Company on Form 8-K (without regard to any party of which will whether such report is now due to be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11filed) or (ii) involves payments by or to the Company or any Company Subsidiary in excess of $1 million in calendar year 2001 or any subsequent calendar year (collectively, the "Company Contracts"). Schedule 3.12(a) of the Company Disclosure Schedule indicates which of the Company Contracts have terminated, and which of the Company Contracts are scheduled to terminate in accordance with their respective terms, in 2001.
(b) whichEach Company Contract is in full force and effect, constitutes a valid and binding obligation of and is legally enforceable in accordance with its terms against the Company or Company Subsidiary, as applicable and, to the knowledge of the date hereofCompany, (i) is a “material contract” (the Company Contracts are valid, binding and enforceable obligations of the other parties thereto, except as such term is defined enforceability may be subject to the effects of any applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or similar Laws affecting creditors' rights generally or subject to the effects of general equitable principles (whether considered in Item 601(b)(10) of Regulation S-K of the SECa proceeding in equity or at law), ; (ii) involves aggregate expenditures the Company and/or each Company Subsidiary, as the case may be, has complied with all of the provisions of such Company Contracts and is not in excess default thereunder, and there has not occurred any event which (whether with or without notice, lapse of $50,000 per annumtime, or the happening or occurrence of any other event) would constitute such a default, and the execution of this Merger Agreement by the Company and its performance hereunder will not cause, or result in, a breach or default under any Company Contract; (iii) involves aggregate expenditures in excess there has not been (A) any failure by the Company or any Company Subsidiary or, to the knowledge of $50,000 and was not entered into in the ordinary course of business, (iv) contains “take or pay” provisions applicable to the Company or any Company Subsidiary, (v) contains any non-compete or exclusivity provisions with respect other party to any line of business such Company Contract to comply with all material provisions thereof, (B) any default by the Company or geographic area with respect to the Company, any Company Subsidiary or any of the Company’s current or future affiliates, or which restricts the conduct of any line of business by the Company, any of the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct business, in each case in any respect, (vi) would reasonably be expected to prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions or (vii) is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded Asset. Each contract of the type described in this Section 3.13, whether or not set forth in Section 3.13 of the Company Disclosure Schedule, is referred to herein as a “Company Material Contract”. Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities is valid and binding on the Company and each Company Subsidiary party thereto andor, to the Company’s knowledge, each other party thereto, as applicable, and in full force and effect, and the Company and each Company Subsidiary has performed all obligations required to be performed by it under each such Company Agreement and, to the Company’s knowledge, each other party to each such Company Agreement has performed all obligations required to be performed by it under such Company Agreement, except as would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. None knowledge of the Company or any Company Subsidiary knows of, or has received notice ofSubsidiary, any violation other party thereunder 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 underC) any Company Agreement relating to the ADS Business, knowledge of the Acquired Assets or the Retained Liabilities except for violations or defaults that would not, or would not be reasonably expected to, individually or in the aggregate, Company (1) prohibit any cancellation thereof in writing which has not been cured or materially delay consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by any outstanding dispute thereunder which has not been cured.
(c) Neither the Company nor any Company Subsidiary is a guarantor or otherwise liable for any liability or obligation (including Indebtedness) of any Portfolio Company or other Person other than a wholly owned subsidiary of its material obligations under this Agreement the Company.
(d) No officer, director or (3) result in a Company Material Adverse Effect. The Company has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all significant stockholder of the Company Material Contracts or other any Company Agreements relating Subsidiary, or affiliate of such officer, director or significant stockholder, is currently a party to any transaction, understanding or commitment with the ADS BusinessCompany or any Company Subsidiary, including, without limitation, any Agreement providing for the Acquired employment of, furnishing of services by, rental of Assets from or the Retained Liabilities required to be disclosed in Section 3.13 to, requiring payments on a change of control of the Company Disclosure Scheduleor otherwise requiring payments to, which are not filed as exhibits any such officer, director, significant stockholder or affiliate, except for the payment of benefits to officers or directors in the Ordinary Course of Business.
(e) Neither the Company SEC Documents and nor any Company Subsidiary is a party to any contract with the Company Material Contracts United States government or to any other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contractsmaterial Government Contract.
Appears in 2 contracts
Sources: Merger Agreement (Motient Corp), Merger Agreement (Rare Medium Group Inc)
Contracts. Except as filed as exhibits to the Company SEC Documents filed prior to the date hereof, or as disclosed in Section 3.13 4.15 of the Company Disclosure Schedule, there is no Letter sets forth a true and complete list of each Contract between the Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities (a) any of its Subsidiaries, on the benefits to any party of which will be increasedone hand, or and the vesting ten largest customers of the benefits to any party of which will be accelerated, by the occurrence of any health management services business of the Transactions or Company and its Subsidiaries and the value of any five largest customers of the benefits to any party fitness management services business of which will be calculated the Company and its Subsidiaries, in each case on the basis of any total revenue for the year ended December 31, 2009, on the other hand. Except as set forth in Section 4.15 of the Transactions (Company Disclosure Letter, and except for this Agreement and except as disclosed pursuant to Section 3.11) or (b) whichfiled with the SEC, as of the date hereof, neither the Company nor any of its Subsidiaries is a party to or is bound by any Contract that (ia) is would be required to be filed by the Company as a “material contract” (as such term is defined in pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act, (b) is a non-competition Contract or other Contract that (i) purports to limit in any material respect either the type of business in which the Company or any of the SEC)Subsidiaries of the Company (or, after the payment by Merger Sub for Shares pursuant to the Offer, Parent or any of its Subsidiaries) or any of their respective Affiliates may engage or the manner or geographic area in which any of them may so engage in any business, (ii) involves aggregate expenditures would require the disposition of any material assets or line of business of the Company or any of its Subsidiaries (or, after the Acceptance Time, Parent or any of its Subsidiaries) or any of their respective Affiliates as a result of the consummation of the transactions contemplated by this Agreement, (iii) is a Contract that grants “most favored nation” status to any Person that, following the Acceptance Time, would apply to Parent or any of its Subsidiaries, including the Company or any of its Subsidiaries, and affects in any material respect the pricing of any products or services by the Company of any of its Subsidiaries or, following the Acceptance Time, Parent or any of its Subsidiaries (including the Company and its Subsidiaries) or (iv) prohibits or limits, in any material respect, the right of the Company or any of its Subsidiaries (or, after the Acceptance Time, would prohibit or limit, in any material respect, the right of Parent or any of its Subsidiaries) to make, sell or distribute any products or services or use, transfer, license, distribute or enforce any of their respective Intellectual Property rights, or (c) under which any Acquired Company has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness for borrowed money in excess of $50,000 per annum, 200,000 (iii) involves aggregate expenditures in excess except for such indebtedness between the Acquired Companies or guaranties by any Acquired Company of $50,000 and was not entered into in the ordinary course of business, (iv) contains “take or pay” provisions applicable to the Company or any Company Subsidiary, (v) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to the Company, any Company Subsidiary or any of the Company’s current or future affiliates, or which restricts the conduct indebtedness of any line of business by the Acquired Company, any of the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct business, in ) (each case in any respect, (vi) would reasonably be expected to prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions or (vii) is necessary for the conduct of the ADS Business such Contract as currently conducted but constitutes an Excluded Asset. Each contract of the type described in this Section 3.13, whether 4.15 or not set forth listed in Section 3.13 4.15 of the Company Disclosure ScheduleLetter, is referred to herein as a “Company Material Contract”). True and complete copies of all Material Contracts of the Company and its Subsidiaries have been made available to Parent. For purposes of this Agreement, “Contract” means any note, bond, mortgage, indenture, contract, agreement, lease or other instrument or obligation (whether written or oral), together with all amendments thereto. Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities Material Contract is valid and binding on the Company and each Company Subsidiary of its Subsidiaries party thereto and, to the knowledge of the Company’s knowledge, each any other party thereto, as applicable, and is in full force and effect, and the Company and except in each Company Subsidiary has performed all obligations required case for such failures to be performed by it under each such Company Agreement and, to the Company’s knowledge, each other party to each such Company Agreement has performed all obligations required valid and binding or to be performed by it under such Company Agreement, except as would not, or would not be reasonably expected toin full force and effect that, individually or in the aggregate, (1) prohibit or materially delay the consummation of the Offerhave not had, the Merger or any of the other Transactionsand would not reasonably be expected to have, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. None Except, individually or in the aggregate, as has not had, and would not reasonably be expected to have, a Material Adverse Effect, and except as set forth in Section 4.15 of the Company Disclosure Letter, there is no default under any Contract by the Company or any Company Subsidiary knows ofof its Subsidiaries party thereto or, or has received notice ofto the knowledge of the Company, any violation or default under (or any condition which other party thereto, and no event has occurred that with the passage lapse of time or the giving of notice or both would cause such constitute a violation of or default under) any thereunder by the Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities except for violations or defaults that would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactionsits Subsidiaries party thereto or, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. The Company has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all knowledge of the Company Material Contracts or Company, any other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities 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 or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contractsparty thereto.
Appears in 2 contracts
Sources: Merger Agreement (Trustco Holdings, Inc.), Merger Agreement (Health Fitness Corp /MN/)
Contracts. (i) Except as filed as exhibits to the Company SEC Documents filed prior to the date hereof, or as disclosed in Section 3.13 3.02(m)(i) of the Company Parent Disclosure Schedule, there is no Company Agreement relating Contract to which Parent or any of its subsidiaries is a party or by which it or any of its properties or assets is bound that is required under the ADS Business, Exchange Act and the Acquired Assets or the Retained Liabilities (a) rules and regulations promulgated thereunder to be filed as an exhibit to any of the benefits to any party of which will be increased, or Parent SEC Documents (the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or (b) which, as of the date hereof, (i) is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC"Parent Material Contracts"), (ii) involves aggregate expenditures in excess of $50,000 per annum, (iii) involves aggregate expenditures in excess of $50,000 and was not entered into in the ordinary course of business, (iv) contains “take or pay” provisions applicable to the Company or any Company Subsidiary, (v) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to the Company, any Company Subsidiary or any of the Company’s current or future affiliates, or which restricts the conduct of any line of business by the Company, any of the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct business, in each case in any respect, (vi) would reasonably be expected to prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions or (vii) is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded Asset. Each contract of the type described in this Section 3.13, whether or not set forth in Section 3.13 of the Company Disclosure Schedule, is referred to herein as a “Company Material Contract”. Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities is valid and binding on the Company and each Company Subsidiary party thereto and, to the Company’s knowledge, each other party thereto, as applicable, and in full force and effect, and the Company and each Company Subsidiary has performed all obligations required to be performed by it under each such Company Agreement and, to the Company’s knowledge, each other party to each such Company Agreement has performed all obligations required to be performed by it under such Company Agreement, except as would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of Neither Parent nor any of its material obligations under this Agreement or (3) result subsidiaries is in a Company Material Adverse Effect. None violation of the Company or any Company Subsidiary knows of, or has received notice of, any violation or default under (nor has Parent or any of its subsidiaries received written notice from any third party alleging that Parent or any of its subsidiaries is in violation of or in default under, nor, to the knowledge of Parent, does there exist any condition which with upon the passage of time or the giving of notice would cause such a violation of or default under) any Company Agreement relating to the ADS BusinessParent Material Contract, the Acquired Assets or the Retained Liabilities except for violations or defaults that would not, or would not be reasonably expected to, individually or in the aggregate, reasonably be expected to result in a material adverse effect on Parent.
(1ii) prohibit or materially delay consummation Except as disclosed in Section 3.02(m)(ii) of the OfferParent Disclosure Schedule, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of neither Parent nor any of its material obligations under this Agreement subsidiaries is a party to or is bound by any Parent Material Contract which (3A) result in a Company Material Adverse Effect. The Company has delivered to provides that the Purchaser terms thereof or provided to any or all of the Purchaser for reviewbenefits or burdens thereunder will be affected or altered (including, prior to by means of acceleration) by, or are contingent upon the execution of this AgreementAgreement or the consummation of the transactions contemplated hereby, true, complete and correct copies or (B) will be subject to termination or cancellation as a result of the execution of this Agreement or the consummation of the transactions contemplated hereby.
(iii) Section 3.02(m)(iii) of Parent Disclosure Schedule sets forth (A) a list of all material agreements, instruments and other obligations pursuant to which any indebtedness for borrowed money or capitalized lease obligations of Parent or any of its subsidiaries and (B) the respective principal amounts outstanding thereunder as of the Company Material Contracts date of this Agreement.
(iv) Neither Parent nor any of its subsidiaries is a party to or bound by any non-competition agreement or any other Company Agreements relating agreement or obligation that purports to limit in any material respect the ADS Businessmanner in which, the Acquired Assets or the Retained Liabilities required to be disclosed localities in Section 3.13 which, all or any substantial portion of the Company Disclosure Schedulebusiness of Parent and its subsidiaries, which are not filed taken as exhibits to the Company SEC Documents and the Company Material Contracts a whole, is or other Company Agreements required to would be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contractsconducted.
Appears in 2 contracts
Sources: Merger Agreement (Urs Corp /New/), Merger Agreement (Tc Group LLC)
Contracts. Except as filed as exhibits to the Company SEC Documents filed prior to the date hereof, or as disclosed in Section 3.13 of the Company Disclosure Schedule, there is no Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities (a) any Seller has provided Buyer with access to copies of all material executory contracts, agreements and understandings, whether written or oral, to which Seller or Seller Parent is a party and which relate primarily to the benefits to any party of which will be increasedBusiness, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or (b) which, as of the date hereof, including contracts:
(i) for employment of any person who is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation Sfull-K of the SEC), time employee;
(ii) involves aggregate for the performance of services or delivery of goods by or to Seller of an amount or value in excess of $50,000;
(iii) for capital expenditures in excess of $50,000 per annum, 50,000;
(iiiiv) involves aggregate expenditures purporting to restrict Seller’s business activity or limit its ability to engage in excess a line of $50,000 and was not entered into business or compete with another Person;
(v) involving any guarantee by Seller of the performance of another Person other than in the ordinary course of business, (iv) contains “take or pay” provisions applicable to the Company or any Company Subsidiary, (v) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to the Company, any Company Subsidiary or any of the Company’s current or future affiliates, or which restricts the conduct of any line of business by the Company, any of the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct business, in each case in any respect, Business;
(vi) would reasonably be expected pursuant to prohibit which Seller is a licensor or materially delay the consummation licensee of the Offer, the Merger or any of the other Transactions or Seller Intellectual Property; and
(vii) is necessary not in the ordinary course of business and providing for the conduct payments to a Person based on sales, purchases or profits, other than direct payment for goods. Seller has provided Buyer with access to copies of each of the ADS Business listed agreements (or, in the case of oral agreements, written summaries) and of all amendments and modifications thereto, with appropriate redactions for information relating to any Affiliate of Seller.
(b) Except as currently conducted but constitutes an Excluded Asset. Each contract of the type described in this Section 3.13, whether or not set forth in Section 3.13 of the Company Disclosure Schedule, is referred to herein as a “Company Material Contract”. Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities is valid and binding on the Company and each Company Subsidiary party thereto andSchedule 5.16, to the Company’s knowledgeKnowledge of Seller, each other party thereto, as applicable, and Contract is in full force and effect, effect and is binding and enforceable against the Company and each Company Subsidiary has performed all obligations required to be performed by it under each such Company Agreement and, parties thereto in accordance with its terms except to the Company’s knowledgeextent such enforceability may be limited by bankruptcy or other similar Laws relating to the enforcement of creditors’ rights generally and by general principles of equity. To the Knowledge of Seller, each other party to each such Company Agreement has performed all obligations required to be performed by it under such Company Agreement, except as would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. None of the Company or any Company Subsidiary knows there exists no breach of, or has received notice of, any violation event of default or default under (or any condition which (with or without compliance with any applicable notice requirements, the passage of time or the giving both) would become an event of notice would cause such a violation of or default under) , any Company Agreement contract, and no waiver, indulgence or postponement of any other party’s obligations under any Contract has been granted. Seller has delivered to Buyer or made available to Buyer for review complete and accurate copies of all Contracts, and there are no material oral agreements or understandings relating to the ADS BusinessContracts. Except as set forth on Schedule 5.16, the Acquired Assets or the Retained Liabilities except for violations or defaults that would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation none of the Offer, the Merger rights of Seller under any Contract are subject to termination or any modification as a result of the other Transactionstransactions contemplated hereby. To the Knowledge of Seller, (2) otherwise prevent no party to any Contract intends to cancel or materially delay performance by terminate any Contract before the Company of any expiration of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. The Company has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all of the Company Material Contracts or other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities 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 or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contractscurrent term.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Speedway TBA, Inc.), Asset Purchase Agreement (Speedway Motorsports Inc)
Contracts. Except as filed as exhibits to the Company SEC Documents filed prior to the date hereof, or as disclosed in (i) Section 3.13 3.01(i) of the Company Disclosure Schedule, there is no Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities (a) any of the benefits to any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or (b) whichLetter sets forth, as of the date hereofof this Agreement, (iwith specific reference to the subsection of this Section 3.01(i) to which such Contract relates) a complete and correct list of:
(A) each Contract pursuant to which the Company or any of its Subsidiaries has agreed not to compete with any person in any area or to engage in any activity or business, or pursuant to which any benefit or right is required to be given or lost, or any penalty or detriment is incurred, as a result of so competing or engaging;
(B) each Contract to or by which the Company or any of its Subsidiaries is a “material contract” party or bound providing for exclusivity or any similar requirement or pursuant to which the Company or any of its Subsidiaries is restricted in any way, or which after the Effective Time could restrict Parent or any of its Subsidiaries in any way, with respect to the development, manufacture, marketing or distribution of their respective products or services or otherwise with respect to the operation of their businesses, or pursuant to which any benefit or right is required to be given or lost, or any penalty or detriment is incurred, as a result of non-compliance with any such exclusive or restrictive requirements or which requires the Company or any of its Subsidiaries to refrain from granting license or franchise rights to any other person;
(as such term C) each Contract to or by which the Company or any of its Subsidiaries is defined in Item 601(b)(10a party or bound or with respect to which the Company or any of its Subsidiaries has any obligation with (1) of Regulation S-K any Affiliate of the SECCompany or any of its Subsidiaries, (2) any Company Personnel, (3) any union or other labor organization or (4) any Affiliate of any such person (other than, in each case, (I) offer letters or employment agreements that are terminable at will by the Company or any of its Subsidiaries both without any penalty and without any obligation of the Company or any of its Subsidiaries to pay severance or other compensation or benefits (other than accrued base salary, accrued commissions, accrued bonuses, accrued vacation pay, accrued floating holidays and legally mandated benefits), (iiII) involves invention assignment and confidentiality agreements relating to the assignment of inventions to the Company or any of its Subsidiaries not involving the payment of money and (III) Benefit Plans and Benefit Agreements other than offer letters or employment agreements);
(D) each Contract under which the Company or any of its Subsidiaries has incurred any indebtedness having an aggregate expenditures principal amount in excess of $50,000 per annum100,000;
(E) each Contract to or by which the Company or any of its Subsidiaries is a party or bound creating or granting a Lien (including Liens upon properties or assets acquired under conditional sales, capital leases or other title retention or security devices), other than (1) Liens for taxes not yet due and payable, that are payable without penalty or that are being contested in good faith and for which adequate reserves have been established, (iii2) involves aggregate expenditures in excess of $50,000 Liens for assessments and was not entered into other governmental charges or landlords’, carriers’, warehousemen’s, mechanics’, repairmen’s, workers’ or similar Liens incurred in the ordinary course of business, consistent with past practice, in each case for sums not yet due and payable or due but not delinquent or being contested in good faith by appropriate proceedings, (iv3) contains Liens incurred in the ordinary course of business, consistent with past practice, in connection with workers’ compensation, unemployment insurance and other types of social security or to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, government contracts, performance and return of money bonds and similar obligations and (4) Liens incurred in the ordinary course of business consistent with past practice that are not reasonably likely to adversely interfere in a material way with the use of the properties or assets encumbered thereby (collectively, “take Permitted Liens”);
(F) each Contract to or payby which the Company or any of its Subsidiaries is a party or bound (other than Benefit Plans and Benefit Agreements) containing any provisions (1) contemplating or relating in any way to a “change in control” provisions applicable or similar event with respect to the Company or any Company Subsidiaryone or more of its Subsidiaries, (v) contains any non-compete including provisions requiring consent or exclusivity provisions with respect to any line of business approval of, or geographic area with respect to the Companynotice to, any Company Subsidiary Governmental Entity or any other person in the event of a change in control of the Company’s current Company or future affiliatesone or more of its Subsidiaries, or which restricts otherwise having the conduct effect of any line of business by the Company, any of the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct business, in each case in any respect, (vi) would reasonably be expected to prohibit or materially delay providing that the consummation of the Offer, the Merger or any of the other Transactions transactions contemplated by this Agreement or the execution, delivery or effectiveness of this Agreement will materially conflict with, result in a material violation or material breach of, or constitute a default (with or without notice or lapse of time or both) under, such Contract, or give rise under such Contract to any right of, or result in, a termination, right of first refusal, material amendment, revocation, cancellation or material acceleration of any obligation, or a loss of a material benefit or the creation of any material Lien upon any of the properties or assets of the Company, Parent or any of their respective Subsidiaries, or to any increased, guaranteed, accelerated or additional material rights or material entitlements of any person, (2) prohibiting or imposing any restrictions on the assignment of all or any portion of such Contract by the Company or its Subsidiaries (without regard to any exception permitting assignments to subsidiaries or Affiliates), including provisions requiring consent or approval of, or notice to, any Governmental Entity or other person in the event of a change in control of the Company or one or more of its Subsidiaries, or (vii3) having the effect of providing that the consummation of the Merger or any of the other transactions contemplated by this Agreement or the execution, delivery or effectiveness of this Agreement will require that a third party be provided with access to source code or that any source code be released from escrow and provided to any third party;
(G) each Contract to or by which the Company or any of its Subsidiaries is necessary a party or bound providing for payments of royalties or other license fees to third parties in excess of $20,000 annually, that is not terminable without penalty on 90 days or less notice;
(H) each Contract to or by which the Company or any of its Subsidiaries is a party or bound granting a third party any license to Intellectual Property that is not limited to the internal use of such third party;
(I) each Contract pursuant to which the Company or any of its Subsidiaries has been granted any license to Intellectual Property, other than nonexclusive licenses granted in the ordinary course of business of the Company and its Subsidiaries consistent with past practice;
(J) each Contract to or by which the Company or any of its Subsidiaries is a party or bound granting the other party to such Contract or a third party “most favored nation” pricing or terms that (1) applies to the Company or any of its Subsidiaries or (2) following the Effective Time, would apply to Parent or any of its Subsidiaries other than the Surviving Corporation or its Subsidiaries;
(K) each Contract pursuant to which the Company or any of its Subsidiaries has agreed or is required to provide any third party with access to source code, to provide for source code to be put in escrow or to grant a contingent license to source code;
(L) each Contract to or by which the Company or any of its Subsidiaries is a party or bound for any joint venture (whether in partnership, limited liability company or other organizational form) or alliance or similar arrangement;
(M) each Contract to or by which the Company or any of its Subsidiaries is a party or bound for any development, marketing, resale, distribution or similar arrangement relating to any product or service;
(N) each Contract to or by which the Company or any of its Subsidiaries is a party or bound with any Governmental Entity;
(O) each material Contract to or by which the Company or any of its Subsidiaries is a party or bound entered into in the last five years in connection with the settlement or other resolution of any suit, claim, action, investigation or proceeding that has any material continuing obligations, liabilities or restrictions;
(P) each Contract to or by which the Company or any of its Subsidiaries is a party or bound providing for future performance by the Company or any of its Subsidiaries in consideration of amounts previously paid;
(Q) each material Contract to or by which the Company or any of its Subsidiaries is a party or bound for professional services engagements for a fixed fee that guarantees a specific result;
(R) each Contract between the Company or any of its Subsidiaries and any of the 50 largest customers of the Company and its Subsidiaries (determined on the basis of revenues received by the Company or any of its Subsidiaries in the four consecutive fiscal quarter period ended March 31, 2010 or, for Contracts signed during the four consecutive fiscal quarter period ended March 31, 2010, on the basis of the first year annual contract value (each such customer, a “Major Customer”, and each such Contract, a “Major Customer Contract”));
(S) each Contract between the Company or any of its Subsidiaries and any of the 10 largest licensors or other suppliers to the Company and its Subsidiaries (determined on the basis of amounts paid by the Company or any of its Subsidiaries in the four consecutive fiscal quarter period ended March 31, 2010 (each such licensor or other supplier, a “Major Supplier”, and each such Contract, a “Major Supplier Contract”));
(T) except for the conduct Contracts disclosed above, each Contract (other than Benefit Plans and Benefit Agreements) which has aggregate future sums due to or from the Company or any of its Subsidiaries, taken as a whole, (i) during the period commencing on the date of this Agreement and ending on the 12-month anniversary of this Agreement, in excess of $150,000 or (ii) in aggregate more than $500,000 during the life of the ADS Business as currently conducted but constitutes an Excluded AssetContract; and
(U) except for the Contracts disclosed above, each material Contract to or by which the Company or any of its Subsidiaries is a party or bound not made in the ordinary course of business consistent with past practice. Each contract The Contracts of the Company or any of its Subsidiaries of the type described referred to in clauses (A) through (U) of this subsection (i) are collectively referred to in this Section 3.13Agreement as “Specified Contracts”. The Company has made available to Parent a complete and correct copy of each of the Specified Contracts, whether or not set forth in Section 3.13 including all amendments thereto. Each Contract of the Company Disclosure Schedule, or any of its Subsidiaries that is referred material to herein as the Company and its Subsidiaries (a “Company Material Contract”. Each Company Agreement relating to the ADS Business), the Acquired Assets or the Retained Liabilities as well as each Specified Contract, is in full force and effect (except for those Contracts that have expired in accordance with their terms) and is a legal, valid and binding on agreement of the Company and each Company Subsidiary party thereto or such Subsidiary, as the case may be, and, to the knowledge of the Company’s knowledge, of each other party thereto, enforceable against the Company or such Subsidiary, as applicablethe case may be, and, to the knowledge of the Company, against the other party or parties thereto, in each case, in accordance with its terms, subject to the Bankruptcy and in full force and effect, and Equity Exception. Each of the Company and each Company Subsidiary its Subsidiaries has performed or is performing in all material respects, all obligations required to be performed by it under each such Company Agreement the Material Contracts and Specified Contracts and is not (with or without notice or lapse of time or both) in breach in any material respect or default thereunder, and has not knowingly waived or failed to enforce any material rights or benefits thereunder (other than in the ordinary course of business consistent with past practice), and, to the knowledge of the Company’s knowledge, each no other party to each such Company Agreement has performed all obligations required to be performed by it under such Company Agreement, except as would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay the consummation of the Offer, the Merger or any of the other TransactionsMaterial Contracts or Specified Contracts is (with or without notice or lapse of time or both) in breach in any material respect or default thereunder. To the knowledge of the Company, as of the date of this Agreement, there has occurred no event giving (2with or without notice or lapse of time or both) otherwise prevent to others any right of termination, material amendment or materially delay performance by the Company cancellation of any Material Contract or Specified Contract. To the knowledge of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. None the Company, there are no circumstances that are reasonably likely to occur that could reasonably be expected to adversely affect the ability 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 Agreement relating its Subsidiaries to the ADS Business, the Acquired Assets or the Retained Liabilities except for violations or defaults that would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of perform its material obligations under this Agreement any Material Contract or (3) result in a Company Material Adverse Effect. The Company has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all of the Company Material Contracts or other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities 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 or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contractsSpecified Contract.
Appears in 2 contracts
Sources: Merger Agreement (International Business Machines Corp), Merger Agreement (Unica Corp)
Contracts. Except as filed as exhibits to the Company SEC Documents filed prior to the date hereof, or as disclosed in Section 3.13 of the Company Disclosure Schedule, there is no Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities (a) any of the benefits to any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or (b) which, as As of the date hereofof this Agreement, (i) is a “there are no Contracts that are material contract” contracts (as such term is defined in Item 601(b)(10) of Regulation S-K K) with respect to Otic Pharma (assuming Otic Pharma was subject to the requirements of the SECExchange Act), other than those Contracts identified in Section 3.11(a) of the Otic Pharma Disclosure Schedule.
(b) Neither Otic Pharma nor any of its Subsidiaries has entered into any transaction that would be subject to proxy statement disclosure pursuant to Item 404 of Regulation S-K (assuming Otic Pharma was subject to the requirements of the Exchange Act), other than as disclosed in Section 3.11(b) of the Otic Pharma Disclosure Schedule.
(c) Neither Otic Pharma nor any of its Subsidiaries is a party to any agreement under which a third party would be entitled to receive a license or any other right to Otic Pharma Intellectual Property as a result of the transactions contemplated by this Agreement.
(d) Section 3.11(d) of the Otic Pharma Disclosure Schedule lists the following Contracts of Otic Pharma in effect as of the date of this Agreement:
(i) any Contract (or group of related Contracts) for the purchase or sale of products or for the furnishing or receipt of services (A) which calls for performance over a period of more than 180 days from the date of this Agreement, (B) which involves an aggregate of more than $150,000 or (C) in which Otic Pharma or any of its Subsidiaries has granted manufacturing rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any products or territory or has agreed to purchase a minimum quantity of goods or services or has agreed to purchase goods or services exclusively from a particular party;
(ii) involves aggregate expenditures in excess any Contract under which the consequences of $50,000 per annum, a default or termination would reasonably be likely to have a Otic Pharma Material Adverse Effect;
(iii) involves aggregate expenditures in excess any Contract that could reasonably be expected to have the effect of $50,000 prohibiting or impairing the conduct of the business of Otic Pharma or any of its Subsidiaries or Public Company or any of its Subsidiaries as currently conducted and was not entered into in the ordinary course of business, as currently proposed to be conducted;
(iv) contains “take or pay” provisions applicable to the Company any Contract under which Otic Pharma or any Company Subsidiaryof its Subsidiaries is restricted from selling, licensing or otherwise distributing any of its technology or products, or providing services to, customers or potential customers or any class of customers, in any geographic area, during any period of time or any segment of the market or line of business;
(v) contains any non-compete dealer, distribution, joint marketing, joint venture, joint development, partnership, strategic alliance, collaboration, development agreement or exclusivity provisions with respect to outsourcing arrangement;
(vi) any line of business or geographic area with respect to the Company, any Company Subsidiary or any of the Company’s current or future affiliates, or which restricts Contract for the conduct of research studies, pre-clinical or clinical studies, manufacturing, distribution, supply, marketing or co-promotion of any line of business products in development by the Companyor which has been or which is being marketed, any of the Company’s current distributed, supported, sold or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct businesslicensed out, in each case in any respect, (vi) would reasonably be expected to prohibit by or materially delay the consummation on behalf of the Offer, the Merger Otic Pharma or any of the other Transactions or its Subsidiaries; and
(vii) is necessary for any Contract that would entitle any third party to receive a license or any other right to intellectual property of Public Company or any of Public Company’s Affiliates following the conduct Closing.
(e) Otic Pharma has made available to Public Company a complete and accurate copy of each Contract listed in Sections 3.10(b)(i), 3.10(b)(ii), 3.11(a), 3.11(b) and 3.11(d) of the ADS Business as currently conducted but constitutes an Excluded Asset. Each contract of the type described in this Section 3.13, whether or not set forth in Section 3.13 of the Company Otic Pharma Disclosure Schedule. With respect to each Contract so listed: (i) the Contract is legal, is referred to herein valid, binding and enforceable and in full force and effect against Otic Pharma and/or its Subsidiaries party thereto, as a “Company Material Contract”. Each Company Agreement relating to the ADS Businessapplicable, the Acquired Assets or the Retained Liabilities is valid and binding on the Company and each Company Subsidiary party thereto and, to the Company’s knowledgeknowledge of Otic Pharma, against each other party thereto, as applicable, subject to the Bankruptcy and Equity Exception; (ii) the Contract will continue to be legal, valid, binding and enforceable and in full force and effecteffect against Otic Pharma and/or its Subsidiaries party thereto, and the Company and each Company Subsidiary has performed all obligations required to be performed by it under each such Company Agreement as applicable, and, to the Company’s knowledgeknowledge of Otic Pharma, against each other party thereto, immediately following the Closing in accordance with the terms thereof as in effect immediately prior to the Closing (other than any such Contracts that expire or terminate before such time in accordance with their terms and not as a result of a breach or default by Otic Pharma or its Subsidiaries), in each such Company Agreement case subject to the Bankruptcy and Equity Exception; and (iii) none of Otic Pharma, its Subsidiaries nor, to the knowledge of Otic Pharma, any other party, is in breach or violation of, or default under, any such Contract, and no event has performed all obligations required occurred, is pending or, to be performed the knowledge of Otic Pharma, is threatened, which, with or without notice or lapse of time, or both, would constitute a breach or default by it Otic Pharma, its Subsidiaries or, to the knowledge of Otic Pharma, any other party under such Company AgreementContract, except as would notfor such breaches, violations or would not be reasonably expected todefaults that, individually or in the aggregate, (1) prohibit or materially delay the consummation of the Offerhave not had, the Merger or any of the other Transactionsand are not reasonably likely to have, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Otic Pharma Material Adverse Effect. 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 underf) any Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities except for violations or defaults that would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. The Company has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution For purposes of this Agreement, truethe term “Contract” shall mean, complete and correct copies of all of the Company Material Contracts with respect to any person, any written, oral or other Company Agreements relating agreement, contract, subcontract, lease (whether for real or personal property), mortgage, understanding, arrangement, instrument, note, option, warranty, license, sublicense, insurance policy, benefit plan or commitment or undertaking of any nature to the ADS Business, the Acquired Assets which such person is a party or the Retained Liabilities required to be disclosed in Section 3.13 by which such person or any of the Company Disclosure Schedule, which its assets are not filed as exhibits to the Company SEC Documents and the Company Material Contracts or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contractsbound under applicable law.
Appears in 2 contracts
Sources: Share Purchase Agreement (Tokai Pharmaceuticals Inc), Share Purchase Agreement (Tokai Pharmaceuticals Inc)
Contracts. (a) Except as for this Agreement and except for any Contract filed as exhibits an exhibit to the Company SEC Documents filed prior to the date hereofReports, or as disclosed in Section 3.13 4.18 of the Company Disclosure ScheduleSchedule lists, there is no and the Company Agreement relating has made available to the ADS BusinessParent true, the Acquired Assets or the Retained Liabilities (a) any of the benefits to any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions correct and complete copies (except as disclosed pursuant to Section 3.11for redactions of competitive information) or of, each and every Contract (b) whichin each case, determined as of the date hereof, ) to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or any of their respective properties or assets is bound and which is currently in effect or under which the Company or any of its Subsidiaries has any continuing rights or obligations:
(i) is that would be required to be filed by the Company as a “material contract” (as such term is defined in pursuant to Item 601(b)(10) of Regulation S-K of under the SEC), Securities Act or disclosed by the Company on a Current Report on Form 8-K;
(ii) involves aggregate expenditures that is a license, sublicense or other Contract pursuant to which the Company or any of its Subsidiaries is authorized to use any third party Intellectual Property that is material to the business of the Company, excluding generally commercially available, off-the-shelf software programs (the “Licensed-In Intellectual Property” and such license, sublicense or other Contract, a “Licensed-In Agreement”);
(iii) that is a license, sublicense or other Contract pursuant to which any third party (A) is authorized to use Owned Intellectual Property that is material to the business of the Company or (B) has obtained and continues to have exclusive rights in Owned Intellectual Property that is material to the business of the Company and its Subsidiaries, other than licenses, sublicenses and other Contracts relating to Owned Intellectual Property granted in the ordinary course of business consistent with past practice;
(iv) that contains covenants that materially restrict the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, would materially restrict the ability of the Surviving Corporation or any of its Affiliates) to compete with any Person or in any business, geographic area or distribution or sales channel, or to sell, supply or distribute any service or product, except for any such Contract that may be canceled without material penalty by the Company or its Subsidiaries upon notice of sixty (60) days or less;
(v) any material partnership or joint venture or pursuant to which the Company or any of its Subsidiaries has an obligation (contingent or otherwise) to make a material investment in or extension of credit to any Person;
(vi) agreements for or related to (A) indebtedness for borrowed money (other than intercompany indebtedness) having an outstanding principal amount in excess of $50,000 per annum10 million or (B) any exchange traded, (iii) involves aggregate expenditures in excess of $50,000 and was over the counter or other swap, cap, floor, collar, futures contract, forward contract, option or any other derivative financial instrument or contract not entered into in the ordinary course of business, ; or
(ivvii) contains “take with respect to any acquisition or pay” provisions applicable disposition of any Person or business or material portion thereof pursuant to which the Company or any Company Subsidiaryof its Subsidiaries has continuing indemnification, (v) contains any non“earn-compete out” or exclusivity provisions with respect to any line of business or geographic area with respect to the Company, any Company Subsidiary or any of the Company’s current or future affiliates, or which restricts the conduct of any line of business by the Company, any of the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct businessother contingent payment obligations, in each case in any respect, (vi) that would reasonably be expected to prohibit or materially delay the consummation result in payments in excess of the Offer, the Merger or any of the other Transactions or $10 million. Each such Contract described in clauses (i) through (vii) is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded Asset. Each contract of the type described in this Section 3.13, whether or not set forth in Section 3.13 of the Company Disclosure Schedule, is referred to herein as a “Company Material Contract.”. Each Company Agreement relating
(b) Except as would not have or reasonably be expected to have, individually or in the ADS Businessaggregate, the Acquired Assets or the Retained Liabilities a Material Adverse Effect, each Material Contract is valid and binding on the Company and each Company Subsidiary party thereto or one of its Subsidiaries and, to the knowledge of the Company’s knowledge, each other party thereto, as applicable, thereto and is in full force and effect, and the Company and each Company Subsidiary has its Subsidiaries have performed and complied with all material obligations required to be performed or complied with by it under each such Company Agreement and, to the Company’s knowledge, each other party to each such Company Agreement has performed all obligations required to be performed by it under such Company Agreement, except Material Contract. Except in any case of default as would not, not have or would not reasonably be reasonably expected toto have, individually or in the aggregate, (1) prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. None of , (x) there is no default under any Material Contract by the Company or any Company Subsidiary knows ofof its Subsidiaries or, or to the knowledge of the Company, by any other party, and (y) no event has received notice of, any violation or default under (or any condition which occurred that with the passage lapse of time or the giving of notice or both would cause such constitute a violation of or default under) any thereunder by the Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities except for violations or defaults that would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactionsits Subsidiaries, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. The Company has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all knowledge of the Company Material Contracts or Company, by any other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities 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 or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contractsparty.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (LS Cable Ltd.), Merger Agreement (Superior Essex Inc)
Contracts. Except as filed as exhibits to the Company SEC Documents filed prior to the date hereof, or as disclosed in Section 3.13 3.01(i) of the Company Disclosure Schedule, there is no Company Agreement relating Letter sets forth (with specific reference to the ADS Business, the Acquired Assets or the Retained Liabilities (asubsection of this Section 3.01(i) any of the benefits to any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11such Contract relates) or (b) whicha complete and correct list, as of the date hereofof this Agreement, of:
(iA) is each Contract that would be required to be filed by the Company as a “material contract” (as such term is defined in pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act that is not so filed;
(B) each Contract pursuant to which the Company or any of its Subsidiaries has agreed not to compete with any person in any area or to engage in any activity or business, or pursuant to which any benefit or right is required to be given or lost, or any penalty or detriment (other than any immaterial penalty or detriment) is incurred, as a result of so competing or engaging;
(C) each Contract to or by which the Company or any of its Subsidiaries is a party or bound providing for exclusivity or any similar requirement or pursuant to which the Company or any of its Subsidiaries is restricted in any way, or which after the Effective Time could restrict Parent or any of its Subsidiaries in any way, with respect to the development, manufacture, marketing or distribution of their respective products or services or otherwise with respect to the operation of their businesses, or pursuant to which any benefit or right is required to be given or lost, or any penalty or detriment (other than any immaterial penalty or detriment) is incurred, as a result of non-compliance with any such exclusive or restrictive requirements;
(D) each Contract to or by which the Company or any of its Subsidiaries is a party or bound or with respect to which the Company or any of its Subsidiaries has any obligation with any affiliate of the SEC), Company or any of its Subsidiaries;
(iiE) involves each Contract under which the Company or any of its Subsidiaries has incurred any Indebtedness having an aggregate expenditures principal amount in excess of $50,000 per annum1,000,000 that is not scheduled as an exhibit to the Filed SEC Documents;
(F) each Contract to or by which the Company or any of its Subsidiaries is a party or bound creating or granting a Lien (including Liens upon properties or assets acquired under conditional sales, capital leases or other title retention or security devices), other than (1) Liens for taxes not yet due and payable, that are payable without penalty or that are being contested in good faith and for which adequate reserves have been established, (iii2) involves aggregate expenditures Liens for assessments and other governmental charges or landlords’, carriers’, warehousemen’s, mechanics’, repairmen’s, workers’ or similar Liens incurred in the ordinary course of business, consistent with past practice, in each case for sums not yet due and payable or due but not delinquent or being contested in good faith by appropriate proceedings, (3) Liens incurred in the ordinary course of business, consistent with past practice, in connection with workers’ compensation, unemployment insurance and other types of social security or to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, government contracts, performance and return of money bonds and similar obligations and (4) Liens incurred in the ordinary course of business consistent with past practice that, individually or in the aggregate, are not reasonably likely to adversely interfere in a material way with the use of the properties or assets encumbered thereby (collectively, “Permitted Liens”);
(G) each material Contract to or by which the Company or any of its Subsidiaries is a party or bound (other than Benefit Plans and Benefit Agreements) containing provisions requiring consent with respect to any “change in control” or similar provision with respect to the Company or one or more of its Subsidiaries, or otherwise having the effect of providing that the consummation of the Merger or any of the other transactions contemplated by this Agreement or the execution, delivery or effectiveness of this Agreement will materially conflict with, result in a material violation or material breach of, or constitute a default (with or without notice or lapse of time or both) under, such Contract, or give rise under such Contract to any right of, or result in, a termination, right of first refusal, material amendment, revocation, cancelation or material acceleration of any obligation, or a loss of a material benefit or the creation of any material Lien upon any of the properties or assets of the Company, Parent or any of their respective Subsidiaries, or to any increased, guaranteed, accelerated or additional material rights or material entitlements of any person;
(H) each Contract to or by which the Company or any of its Subsidiaries is a party or bound providing for payments of royalties or other license fees to third parties in excess of $50,000 5,000,000 annually, that is not terminable by the Company without penalty on ninety days or less notice;
(I) each Contract to or by which the Company or any of its Subsidiaries is a party or bound granting the other party to such Contract or a third party “most favored nation” pricing or terms that (1) applies to the Company or any of its Subsidiaries or (2) following the Effective Time, would apply to Parent or any of its Subsidiaries other than the Surviving Corporation or its Subsidiaries;
(J) each Contract pursuant to which the Company or any of its Subsidiaries has agreed or is required to provide any third party with access to (x) source code in respect of hardware (other than board-level hardware, such as reference designs) or (y) any other source code (other than, in the case of this subclause (y), access to customers in the ordinary course of business consistent with past practice of source code that is generally made available to customers of the Company or its Subsidiaries, it being understood that, for the avoidance of doubt, the exception in this parenthetical shall not apply to access to source code to business partners or other persons in connection with the development by the Company or any of its Subsidiaries of hardware products or related design services), and was each Contract that provides for source code of the Company or any of its Subsidiaries to be put in escrow or pursuant to which the Company or any of its Subsidiaries has agreed or is required to grant a contingent license to source code;
(K) each Contract containing any “non-solicitation”, “no-hire” or similar provision that restricts the Company or any of its Subsidiaries;
(L) each Contract to or by which the Company or any of its Subsidiaries is a party or bound for any joint venture (whether in partnership, limited liability company or other organizational form) or other revenue or profit sharing or similar arrangement;
(M) each Contract to or by which the Company or any of its Subsidiaries is a party or bound with any Governmental Entity (other than ordinary course customer Contracts providing for payments below $5,000,000 and pursuant to which the counterparty does not have any rights to the Company’s Products or Intellectual Property other than its rights to use the Product sold under such Contract as a customer);
(N) each Contract to or by which the Company or any of its Subsidiaries is a party or bound entered into in the last five years in connection with the settlement or other resolution of any suit, claim action, investigation or proceeding that has any material continuing obligation, liability or restriction on the part of the Company or any of its Subsidiaries;
(O) each Contract between the Company or any of its Subsidiaries and any of the ten largest customers of the Company and its Subsidiaries (determined on the basis of revenues received by the Company or any of its Subsidiaries in the four consecutive fiscal quarter period ended September 30, 2010 (each such customer, a “Major Customer”, and each such Contract, a “Major Customer Contract”));
(P) each Contract between the Company or any of its Subsidiaries and any of the ten largest licensors or other suppliers to the Company and its Subsidiaries (determined on the basis of amounts paid by the Company or any of its Subsidiaries in the four consecutive fiscal quarter period ended September 30, 2010 (each such licensor or other supplier, a “Major Supplier”, and each such Contract, a “Major Supplier Contract”)); and
(Q) except for Contracts with customers and purchase orders with vendors or suppliers, in each case, entered into in the ordinary course of businessbusiness consistent with past practice, and the Contracts disclosed above, each Contract (ivother than Benefit Plans or Benefit Agreements) contains “take which has aggregate future sums due to or pay” provisions applicable to from the Company or any Company Subsidiaryof its Subsidiaries, taken as a whole, (vi) contains any nonduring the period commencing on the date of this Agreement and ending on the 12-compete month anniversary of this Agreement, in excess of $3,000,000 or exclusivity provisions with respect to any line (ii) in aggregate more than $10,000,000 during the life of business or geographic area with respect to the Company, any Contract. The Contracts of the Company Subsidiary or any of the Company’s current or future affiliates, or which restricts the conduct of any line of business by the Company, any its Subsidiaries of the Company’s current or future affiliatestype referred to in clauses (A) through (Q) of this Section 3.01 are collectively referred to in this Agreement as “Specified Contracts”. The Company has made available to Parent a complete and correct copy of each of the Specified Contracts, any including all amendments thereto. Each Specified Contract and each other Contract of the Company Subsidiary or any geographic area in which the Company, any Company Subsidiary or any of its Subsidiaries that is material to the Company’s current or future affiliates may conduct business, in each case in any respect, Company and its Subsidiaries taken as a whole (vi) would reasonably be expected to prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions or (viia “Material Contract”) is necessary in full force and effect (except for the conduct of the ADS Business as currently conducted but constitutes an Excluded Asset. Each contract of the type described those Contracts that have expired in this Section 3.13accordance with their terms) and is a legal, whether or not set forth in Section 3.13 valid and binding agreement of the Company Disclosure Scheduleor such Subsidiary, is referred to herein as a “Company Material Contract”. Each Company Agreement relating to the ADS Businesscase may be, the Acquired Assets or the Retained Liabilities is valid and binding on the Company and each Company Subsidiary party thereto and, to the knowledge of the Company’s knowledge, of each other party thereto, enforceable against the Company or such Subsidiary, as applicablethe case may be, and, to the knowledge of the Company, against the other party or parties thereto, in each case, in accordance with its terms, subject to bankruptcy, insolvency, moratorium, reorganization or similar laws affecting the rights of creditors generally and in full force and effect, and the availability of equitable remedies. Each of the Company and each Company Subsidiary its Subsidiaries has performed or is performing all material obligations required to be performed by it under each such Company Agreement the Material Contracts and is not (with or without notice or lapse of time or both) in breach in any material respect or default thereunder, and, other than in the ordinary course of business consistent with past practice, has not knowingly waived or failed to enforce any material rights or benefits thereunder, and, to the knowledge of the Company’s knowledge, each no other party to each such Company Agreement has performed all obligations required to be performed by it under such Company Agreement, except as would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay the consummation of the Offer, the Merger or any of the other TransactionsMaterial Contracts is (with or without notice or lapse of time or both) in breach in any material respect or default thereunder. To the knowledge of the Company, there has occurred no event giving (2with or without notice or lapse of time or both) otherwise prevent to others any right of termination, material amendment or materially delay performance by the Company cancelation of any Material Contract. To the knowledge of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. None the Company, there are no circumstances that are reasonably likely to occur that would reasonably be expected to adversely affect the ability 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 Agreement relating its Subsidiaries to the ADS Business, the Acquired Assets or the Retained Liabilities except for violations or defaults that would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of perform its material obligations under this Agreement or (3) result in a Company any Material Adverse Effect. The Company has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all of the Company Material Contracts or other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities 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 or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contractsContract.
Appears in 2 contracts
Sources: Merger Agreement (Qualcomm Inc/De), Merger Agreement (Atheros Communications Inc)
Contracts. Except as filed as exhibits to the Company SEC Documents filed prior to the date hereof, or as disclosed in Section 3.13 of the Company Disclosure Schedule, there is no Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities (a) any of the benefits to any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or (b) which, as As of the date hereofof this Agreement, neither Parent nor any of its Subsidiaries is a party to or bound by any contract, arrangement, commitment or understanding (whether written or oral) (i) which is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC)) to be performed after the date of this Agreement that has not been filed or incorporated by reference in the Parent SEC Documents, or (ii) involves aggregate expenditures which materially restricts the ability of Parent or the surviving corporation to engage in excess of $50,000 per annum, (iii) involves aggregate expenditures in excess of $50,000 and was not entered into in the ordinary course of business, (iv) contains “take or pay” provisions applicable to the Company or any Company Subsidiary, (v) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to the Company, any Company Subsidiary or any of the Company’s current or future affiliates, or which restricts the conduct of any line of business by the Company, any of the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct business, in each case in any respect, (vi) would reasonably be expected to prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions or (vii) is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded Asset. Each contract contract, arrangement, commitment or understanding of the type described in clause (i) of this Section 3.13, whether or not set forth in Section 3.13 of the Company Disclosure Schedule, 4.15(a) is referred to herein as a “Company Material Parent Contract”. ” (for purposes of clarification, each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) to be performed after the date of this Agreement, whether or not filed with the SEC, is a Parent Contract).
(b) (i) Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities Parent Contract is valid and binding on the Company Parent and each Company Subsidiary party thereto and, to the Company’s knowledge, each other any of its Subsidiaries that is a party thereto, as applicable, and in full force and effecteffect (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, and the Company general equitable principles (whether considered in a proceeding in equity or at law)), (ii) Parent and each Company Subsidiary of its Subsidiaries has in all material respects performed all obligations required to be performed by it to date under each such Company Agreement and, to the Company’s knowledge, each other party to each such Company Agreement has performed all obligations required to be performed by it under such Company AgreementParent Contract, except as would notwhere such noncompliance, or would not be reasonably expected to, either individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on Parent, and (1iii) prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of neither Parent nor any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. None of the Company or any Company Subsidiary knows Subsidiaries has Knowledge of, or has received notice of, the existence of any violation event or default under (or any condition which with the passage constitutes, or, after notice or lapse of time or both, will constitute, a material default on the giving part of notice would cause Parent or any of its Subsidiaries under any such a violation of or default under) any Company Agreement relating to the ADS BusinessParent Contract, the Acquired Assets or the Retained Liabilities except for violations or defaults that would notwhere such default, or would not be reasonably expected to, either individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in would not reasonably be expected to have a Company Material Adverse Effect. The Company has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all of the Company Material Contracts or other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities 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 or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contractsEffect on Parent.
Appears in 2 contracts
Sources: Merger Agreement (Landamerica Financial Group Inc), Merger Agreement (Capital Title Group Inc)
Contracts. Except as filed as exhibits to the Company SEC Documents filed prior to the date hereof, or as disclosed in Section 3.13 of the Company Disclosure Schedule, there is no Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities (a) any of the benefits to any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or (b) which, as As of the date hereof, except as set forth as an exhibit to the SEC Reports or on Section 4.7 of the Company Disclosure Letter, neither the Company nor any of its Subsidiaries is a party to or any of their respective assets are bound by any:
(i) is a “material contract” Contract relating to third-party indebtedness for borrowed money or any third-party financial guaranty in excess of $100 million;
(ii) Contract required to be filed as such term is defined in 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 of 1933, as amended (the SEC“Securities Act”), (ii) involves aggregate expenditures in excess of $50,000 per annum, ;
(iii) involves aggregate expenditures in excess of $50,000 and was not entered into in the ordinary course of business, (iv) contains “take or pay” provisions applicable to the Company or any Company Subsidiary, (v) Contract that contains any non-compete provision that limits or exclusivity provisions with respect purports to limit, curtail or restrict the ability of the Company or any of its Subsidiaries to compete in any line of business business, other than those that, in each case, would not be material to the Company or geographic area its Subsidiaries, taken as a whole; or
(iv) Contract with respect to a third party containing a “standstill” that restricts the ability of the Company, any Company Subsidiary its Subsidiaries or any of the Company’s current or future affiliates, or which restricts the conduct of any line of business by the Company, their respective Affiliates to acquire any of the Company’s current securities or future affiliates, any Company Subsidiary assets of such third party or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct business, in each case in any respect, its Affiliates.
(vib) would reasonably be expected to prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions or (vii) is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded Asset. Each contract All Contracts of the type described in Section 4.7(a) above to which the Company or its Subsidiaries is a party to or by which their respective assets are bound by as of the date of this Section 3.13Agreement, whether or not together with the Contracts set forth in on Section 3.13 4.7 of the Company Disclosure ScheduleLetter and the Contracts filed as exhibits to the SEC Reports, is are referred to herein as a the “Company Material Contract”. Each Company Agreement relating Contracts.” Prior to the ADS Businessdate of this Agreement, the Acquired Assets Company, subject to the Confidentiality Agreement, has made available to Parent, to the extent a correct, complete and unredacted copy of a Material Contract is not available to the public on the website maintained by the SEC, a correct, complete and unredacted copy of each Material Contract in existence as of the date hereof, together with any and all amendments and supplements thereto and material “side letters” and similar documentation relating thereto. Except, in each case, as has not, and would not reasonably be expected to have, individually or in the Retained Liabilities aggregate, a material adverse impact on the Company and its Subsidiaries, taken as a whole: (i) each Material Contract is valid and binding on the Company and each Company Subsidiary party thereto or its Subsidiaries and, to the knowledge of the Company’s knowledge, each other party thereto, as applicable, thereto and is in full force and effect, and (ii) the Company and each Company Subsidiary has its Subsidiaries have performed and complied with all obligations required to be performed or complied with by it under each such Company Agreement and, to the Company’s knowledge, each other party to each such Company Agreement has performed all obligations required to be performed by it under such Company Agreement, except Material Contract. Except in any case of default as would not, or would not reasonably be reasonably expected toto have, individually or in the aggregate, (1) prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactionsa Material Adverse Effect, (2x) otherwise prevent or materially delay performance there is no default under any Material Contract by the Company of any of or its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. None Subsidiaries or, to the knowledge of the Company or Company, by any Company Subsidiary knows ofother party, or and (y) no event has received notice of, any violation or default under (or any condition which occurred that with the passage lapse of time or the giving of notice or both would cause such constitute a violation of or default under) any Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities except for violations or defaults that would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance thereunder by the Company or its Subsidiaries, or, to the knowledge of the Company, by any other party. To the knowledge of the Company, neither the Company nor any of its Subsidiaries has received any written notice of termination or cancellation under any Material Contract, or received any notice of breach or default in any material obligations respect under this Agreement any Material Contract which breach or (3) result in a Company Material Adverse Effect. The Company default has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all of the Company Material Contracts or other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities 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 or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contractsbeen cured.
Appears in 2 contracts
Sources: Merger Agreement (Genzyme Corp), Agreement and Plan of Merger (Sanofi-Aventis)
Contracts. Except as filed as exhibits to the Company SEC Documents filed Filings prior to the date hereofof this Agreement, or as disclosed in Section 3.13 of the Company Disclosure ScheduleMemorandum, there none of the Company or any of its Subsidiaries is no Company Agreement relating a party to the ADS Business, the Acquired Assets or the Retained Liabilities bound by any Contract that (a) any of the benefits to any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or (b) which, as of the date hereof, (i) is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC), (iib) involves aggregate expenditures after the date hereof in excess of $500,000, (c) involves annual expenditures in excess of $50,000 per annum500,000 and is not cancelable within one year, (iii) involves aggregate expenditures in excess of $50,000 and was not entered into in the ordinary course of business, (iv) contains “take or pay” provisions applicable to the Company or any Company Subsidiary, (vd) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to the Company, any Company Subsidiary or any of the Company’s current or future affiliatesits Subsidiaries, or which restricts the conduct of any line of business by the Company, Company or any of the Company’s current or future affiliates, any Company Subsidiary its Subsidiaries or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current or future affiliates its Subsidiaries may conduct business, in each case in any respect, material respect or (vie) which would reasonably be expected to prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions or (vii) is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded Assettransactions contemplated by this Agreement. Each contract Contract of the type described in this Section 3.13, whether or not set forth in Section 3.13 of the Company Disclosure ScheduleMemorandum, is referred to herein as a “Company Material Contract”. Each .” Except as set forth in Section 3.13 of the Company Agreement relating to Disclosure Memorandum and except as would not, individually or in the ADS Businessaggregate, the Acquired Assets or the Retained Liabilities have a Material Adverse Effect, each Company Material Contract is valid and binding on the Company and each Company Subsidiary of its Subsidiaries party thereto and, to the Company’s knowledge, each other party thereto, as applicable, and in full force and effect, and the Company and each Company Subsidiary of its Subsidiaries has in all respects performed all obligations required to be performed by it to the date hereof under each such Company Agreement Material Contract and, to the Company’s knowledge, each other party to each such Company Agreement Material Contract has in all respects performed all obligations required to be performed by it under such Company Agreement, except as would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse EffectContract. None of the Company or any Company Subsidiary knows of, or of its Subsidiaries has received any written notice of, 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 Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities except for violations or defaults that would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. The Company has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all of the Company Material Contracts or other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities 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 or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contractsContract.
Appears in 2 contracts
Sources: Merger Agreement (Zhone Technologies Inc), Merger Agreement (Paradyne Networks Inc)
Contracts. Except as filed as exhibits to the Company SEC Documents filed prior to the date hereof, or as disclosed in Section 3.13 of the Company Disclosure Schedule, there is no Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities (a) any of the benefits to any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or (b) which, as As of the date hereofof this Agreement, neither the Company nor any of its Subsidiaries is a party to or bound by any Contract (whether written or oral): (i) which is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC), ) to be performed in full or in part after the date of this Agreement that has not been filed or incorporated by reference in the Company SEC Documents; (ii) involves aggregate expenditures which constitutes a contract or commitment relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset) in excess of $50,000 per annum, 100,000; or (iii) involves aggregate expenditures in excess which contains any provision that would be reasonably expected to materially restrict or alter the conduct of $50,000 and was not entered into in the ordinary course business of business, (iv) contains “take or pay” provisions applicable to any Affiliate of the Company (or any Company Subsidiary, (v) contains Affiliate of any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to the Company, any Company Subsidiary or any such Affiliate of the Company’s current or future affiliates), or which restricts the conduct of any line of business by other than the Company, any of the Company’s current or future affiliates, any Company Subsidiary its Subsidiaries or any geographic area in which director, officer or employee of any of the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct business, in each case in any respect, (vi) would reasonably be expected to prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions or (vii) is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded Assetits Subsidiaries. Each contract contract, arrangement, commitment or understanding of the type described in clauses (i) and (ii) of this Section 3.133.12, whether or not set forth in Section 3.13 of the Company Disclosure ScheduleLetter or in the Company SEC Documents, is referred to herein as a “Disclosed Contract” (for purposes of clarification, each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) to be performed after the date of this Agreement, whether or not filed with the SEC, is a Company Material Contract”. ).
(i) Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities Contract that is not a Disclosed Contract is valid and binding on the Company and each Company Subsidiary party thereto and, to the Company’s knowledge, each other any of its Subsidiaries that is a party thereto, as applicable, and in full force and effect, except where the failure to be valid, binding and in full force and effect would not reasonably be expected to have a Company Material Adverse Effect, (ii) the Company and each Company Subsidiary of its Subsidiaries has performed all obligations required to be performed by it to date under each such Company Agreement and, to the Company’s knowledge, each other party to each such Company Agreement has performed all obligations required to be performed by it under such Company AgreementContract, except as would not, or where such noncompliance would not reasonably be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in to have a Company Material Adverse Effect. None of , and (iii) neither the Company or nor any Company Subsidiary of its Subsidiaries knows of, or has received notice of, the existence of any violation event or default under (or any condition which with the passage constitutes, or, after notice or lapse of time or both, will constitute, a default on the giving of notice would cause such a violation of or default under) any Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities except for violations or defaults that would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation part of the Offer, the Merger Company or any of the other Transactionsits Subsidiaries under any such Company Contract, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in except where such default would not reasonably be expected to have a Company Material Adverse Effect. The Each Disclosed Contract is valid and binding on the Company has delivered to and any of its Subsidiaries that is a party thereto, as applicable, and in full force and effect, other than any such Disclosed Contracts that expire or are terminated after the Purchaser date hereof in accordance with their terms or amended by agreement with the counterparty thereto; provided to that if any such Disclosed Contract is so amended in accordance with its terms after the Purchaser for review, prior to date hereof (provided such amendment is not prohibited by the execution terms of this Agreement), true, complete and correct copies of all of the Company Material Contracts or other Company Agreements relating then to the ADS Businessextent the representation and warranty contained in this sentence is made or deemed made as of any date that is after the date of such amendment, the Acquired Assets or reference to “Disclosed Contract” in the Retained Liabilities required first clause of this sentence shall be deemed to be disclosed in Section 3.13 of the Company Disclosure Schedule, which are not filed a reference to such contract as exhibits to the Company SEC Documents and the Company Material Contracts or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contractsso amended.
Appears in 2 contracts
Sources: Merger Agreement (Theragenics Corp), Merger Agreement (Michas Alexis P)
Contracts. Section 3.12.1 Except as for contracts filed in unredacted form as exhibits to the Company SEC Documents filed prior to the date hereofFilings, or as disclosed in Section 3.13 3.12 of the Company Disclosure Schedule, there is no Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities (a) any of the benefits to any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or (b) which, Schedule sets forth a correct and complete list as of the date hereofof this Agreement, and the Company has made available to Parent correct and complete copies (iincluding all material amendments, modifications, extensions or renewals, with respect thereto, but excluding all names, terms and conditions that have been redacted in compliance with applicable Laws governing the sharing of information) is a of (collectively, the “material contract” (Company Contracts”):
Section 3.12.1.1 any agreement and any amendment thereto required to be filed as such term is defined an Exhibit to any report of the Company filed pursuant to the Exchange Act of the type described in Item 601(b)(10) of Regulation S-K of the SECSecurities Act;
Section 3.12.1.2 all contracts to which the Company or any Company Subsidiary is a party that contain a covenant restricting the ability of the Company or any of the Company Subsidiaries to compete in any business or with any person or in any geographic area;
Section 3.12.1.3 all contracts of the Company or any of the Company Subsidiaries with any affiliate of the Company (other than any of the Company Subsidiaries);
Section 3.12.1.4 any contract to which the Company or any of the Company Subsidiaries is a party which primarily relates to (A) the granting to the Company or any Company Subsidiary of license rights in or to any material Company Intellectual Property owned by a third party, or (iiB) involves the granting by the Company or any Company Subsidiary of license rights to a third party in or to any material Company Intellectual Property, in each of case (A) and (B) above, excluding “click-wrap” or “shrink-wrap” agreements, agreements contained in or pertaining to “off-the-shelf” Software, or the terms of use or service for any Web site;
Section 3.12.1.5 all joint venture, partnership or other similar agreements involving co-investment with a third party to which the Company or any of the Company Subsidiaries is a party;
Section 3.12.1.6 any contract with a Governmental Entity (other than ordinary course contracts with Governmental Entities as a customer) which imposes any material obligation or restriction on the Company or the Company Subsidiaries;
Section 3.12.1.7 all contracts pursuant to which any indebtedness of the Company or any of the Company Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of the Company Subsidiaries of any indebtedness of any other person (other than the Company or any of the Company Subsidiaries) (except for such indebtedness or guarantees the aggregate expenditures in excess principal amount of which does not exceed $50,000 per annum, (iii) involves aggregate expenditures in excess of $50,000 500,000 on an annual basis and was not entered into excluding trade payables arising in the ordinary course of business);
Section 3.12.1.8 contracts with hospitals and medical groups that, in the aggregate, represent an amount of claims repriced by the Company and the Company Subsidiaries of at least 50% of the total amount of projected 2004 claims repriced by the Company and the Company Subsidiaries to hospitals and medical groups;
Section 3.12.1.9 any customer contract (ivother than contracts with hospitals or other providers) contains “take or pay” provisions applicable that involves annual payments by the customer to the Company and the Company Subsidiaries of greater than $500,000;
Section 3.12.1.10 any contract with a vendor or supplier (other than contracts covered by Sections 3.12.1.4 or 3.12.1.8) that involves annual payments of greater than $500,000 by the Company and the Company Subsidiaries; and
Section 3.12.1.11 any Company Subsidiary, (v) contains any non-compete or exclusivity provisions contract with respect to any line of business risk sharing or geographic area with respect to the Company, any Company Subsidiary risk transfer arrangement or that provides for a retroactive premium or similar adjustment or withholding arrangement or any of the Company’s current contract, agreement or future affiliates, or which restricts the conduct of any line of business by the Company, any of the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct business, in each case in any respect, (vi) would reasonably be expected to prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions or (vii) is necessary policy for the conduct of the ADS Business reinsurance.
Section 3.12.2 Except as currently conducted but constitutes an Excluded Asset. Each contract of the type described in this Section 3.13, whether or not set forth in Section 3.13 of the Company Disclosure Schedule, is referred to herein as a “each Company Material Contract”. Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities Contract is valid and binding on the Company and each Company Subsidiary party thereto and, to the Company’s knowledge, each other party thereto, as applicable, and in full force and effect, and the Company and each Company Subsidiary has in all material respects performed all obligations required to be performed by it to the date hereof under each such Company Agreement Contract and, to the Company’s knowledge, each other party to each such Company Agreement Contract has in all material respects performed all obligations required to be performed by it to the date hereof under such Company AgreementContract, except except, in each case, as would has not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result resulted in a Company Material Adverse Effect. .
(i) None of the Company or any of the Company Subsidiary knows ofSubsidiaries (x) has received written notice that it is, or has received notice ofknowledge that any other party to any Company Contract is, any in violation or breach of or default under (with or any condition which with the passage without notice or lapse of time or both) under or (y) since January 1, 2004 through the date hereof, has expressly waived any rights or benefits under any Company Contract, and (ii) to the knowledge of the Company, there has occurred no event giving to others any right of termination, amendment or cancellation of (with or without notice would cause such a violation or lapse of time or default underboth) any such Company Agreement relating to the ADS BusinessContract, the Acquired Assets except in each case for violations, breaches, defaults or the Retained Liabilities except for violations waivers covered by clauses (i) or defaults that would not, or would not be reasonably expected to(ii) above that, individually or in the aggregate, (1) prohibit have not had or materially delay consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in would not reasonably be expected to have a Company Material Adverse Effect. The Company has delivered to Since January 1, 2004 through the Purchaser or provided to the Purchaser for reviewdate hereof, prior to the execution of this Agreement, true, complete and correct copies of all of the Company Material Contracts or other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities required to be disclosed in Section 3.13 of except as set forth on the Company Disclosure Schedule, which are not filed as exhibits no counterparty to any Company Contract scheduled in response to Section 3.12.1.9 (each, a “Customer”) has given written notice of any intention to cancel or otherwise terminate, prior to the end of the applicable contract term, such Company SEC Documents and Contract, and, to the Company’s knowledge, no Customer intends to terminate such Company Contract or otherwise materially reduce its usage or purchase of the products or services provided by the Company Material Contracts or other any Company Agreements required to be disclosed Subsidiary.
Section 3.12.4 Except as set forth in Section 3.13 of the Company Disclosure Schedule filed or as exhibits would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, the execution and delivery of this Agreement by the Company SEC Documents are truedoes not, complete and correct copies the performance of such contractsthis Agreement by the Company will not, require any consent or approval under, result in any breach of or any loss of any benefit under, or constitute a change of control or default (or an event which with notice or lapse of time or both would become a default) under, or give to others any right of termination, amendment, acceleration or cancellation of, any Company Contract.
Appears in 2 contracts
Sources: Merger Agreement (First Health Group Corp), Merger Agreement (Coventry Health Care Inc)
Contracts. (a) Except as filed as exhibits to set forth in the Company Company's SEC Documents filed prior to the date hereof, Reports or as disclosed in Section 3.13 Schedule 3.17 of the Company Disclosure Schedule, there is no neither the Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities (a) nor any of the benefits its Subsidiaries is a party to or bound by any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or (b) which, as of the date hereof, (i) is a “"material contract” " (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC), (ii) involves aggregate expenditures non-competition agreement or any other agreement or obligation which purports to limit in excess any respect the manner in which, or the localities in which, all or any material portion of $50,000 per annumthe business of the Company and its Subsidiaries, taken as a whole, may be conducted, (iii) involves aggregate expenditures in excess transaction, agreement, arrangement or understanding with any affiliate of $50,000 and was not entered into in the ordinary course Company or such Subsidiary that would be required to be disclosed under Item 404 of businessregulation S-K under the Securities Act, (iv) contains “take voting or pay” provisions applicable to the Company or other agreement governing how any Company SubsidiaryShares shall be voted, (v) contains material agreement with any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to the Company, any Company Subsidiary or any stockholders of the Company’s current or future affiliates, or which restricts the conduct of any line of business by the Company, any of the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct business, in each case in any respect, (vi) acquisition, merger, asset purchase or sale agreement, or (vii) contract or other agreement which would reasonably be expected to prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions or (vii) is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded Asset. Each contract all contracts of the type described in this Section 3.13, whether or not set forth in Section 3.13 of the Company Disclosure Schedule, is clauses (i) through (vii) being referred to herein as a “Company "Material Contract”Contracts"). Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities Material Contract is valid and binding on the Company and each Company Subsidiary party thereto and(or, to the Company’s knowledgeextent a Subsidiary of the Company is a party, each other party thereto, as applicable, such Subsidiary) and is in full force and effect, effect and the Company and each Company Subsidiary has have, in all material respects, performed all obligations required to be performed by it them to date under each such Company Agreement and, to the Company’s knowledge, each other party to each such Company Agreement has performed all obligations required to be performed by it under such Company AgreementMaterial Contract, except as would not, or would not be reasonably expected towhere such noncompliance, individually or in the aggregate, (1) prohibit or materially delay would not have a Material Adverse Effect on the consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by Company. Neither the Company of nor any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. None Subsidiary of the Company is in default or any Company Subsidiary knows of, or has received notice of, any violation or default under (or nor, to the knowledge of the Company, does there exist any condition which with the passage of time or the giving of notice or both would cause result in such a violation of or default under) any Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities except for violations or defaults that would not, or would not be reasonably expected to, individually or Material Contract.
(b) Except as disclosed in the aggregateCompany's SEC Documents or on Schedule 3.17 of the Disclosure Schedule or as provided for in this Agreement, neither the Company nor any of its Subsidiaries is a party to any oral or written (i) employment, severance, retention or termination agreements or consulting agreements not terminable on thirty (30) days' or less notice, (1ii) prohibit union or materially delay consummation collective bargaining agreement, (iii) agreement with any executive officer or other key employee of the Offer, the Merger Company or any of its Subsidiaries the other Transactionsbenefits of which are contingent or vest, or the terms of which are materially altered, upon the occurrence of a transaction involving the Company or any of its Subsidiaries of the nature contemplated by this Agreement, (2iv) otherwise prevent agreement with respect to any executive officer or materially delay performance other key employee of the Company or any of its Subsidiaries providing any term of employment or compensation guarantee or (v) agreement or plan, including any stock option, stock appreciation right, restricted stock or stock purchase plan, any of the benefits of which will be increased, or the vesting of the benefits of which will be accelerated, by the Company occurrence of any of its material obligations under this Agreement the Transactions or (3) result in a Company Material Adverse Effect. The Company has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution value of this Agreement, true, complete and correct copies of all any of the Company Material Contracts or other Company Agreements relating to benefits of which will be calculated on the ADS Business, the Acquired Assets or the Retained Liabilities required to be disclosed in Section 3.13 basis of any of the Company Disclosure Schedule, which are not filed as exhibits to the Company SEC Documents and the Company Material Contracts or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contractsTransactions.
Appears in 2 contracts
Sources: Merger Agreement (HSC Acquisition Corp), Merger Agreement (Hills Stores Co /De/)
Contracts. Except as filed as exhibits to the Company SEC Documents filed prior to the date hereof, or as disclosed in Section 3.13 of the Company Disclosure Schedule, there is no Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities (a) Section 3.16 of the Parent Disclosure Schedule lists the following agreements (written or oral) to which the Parent or any of the benefits to any its subsidiaries is a party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or (b) which, as of the date hereof, of this Agreement:
(i) is a “material contract” any agreement (as such term is defined in Item 601(b)(10or group of related agreements) for the lease of Regulation S-K of the SEC), personal property from or to third parties;
(ii) involves any agreement (or group of related agreements) for the purchase or sale of products or for the furnishing or receipt of services;
(iii) any agreement establishing a partnership or joint venture;
(iv) any loan or credit agreements, notes, bonds, mortgages, indentures and other agreements and instruments pursuant to which any indebtedness of the Parent or any of its subsidiaries in an aggregate expenditures principal amount in excess of $50,000 per annum5,000 is outstanding or may be incurred;
(v) any Contract that creates future payment obligations, (iii) involves aggregate expenditures including settlement agreements, in excess of $50,000 10,000 and was that by its terms does not terminate, or is not terminable upon notice, without penalty within 90 days or less, or any Contract that creates or would create a Lien on any asset of the Parent or its subsidiaries (other than Liens consisting of restrictions on transfer agreed to in respect of investments entered into in the ordinary course Ordinary Course of business, (iv) contains “take Business or pay” provisions applicable to the Company or any Company Subsidiary, (v) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to the Company, any Company Subsidiary or any of the Company’s current or future affiliates, or which restricts the conduct of any line of business by the Company, any of the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct business, in each case in any respect, (vi) would reasonably be expected to prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions or (vii) is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded Asset. Each contract of the type described in this Section 3.13, whether or not set forth in Section 3.13 of the Company Disclosure Schedule, is referred to herein as a “Company Material Contract”. Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities is valid and binding on the Company and each Company Subsidiary party thereto and, to the Company’s knowledge, each other party thereto, as applicable, and in full force and effect, and the Company and each Company Subsidiary has performed all obligations required to be performed by it under each such Company Agreement and, to the Company’s knowledge, each other party to each such Company Agreement has performed all obligations required to be performed by it under such Company Agreement, except as would not, or would not be reasonably expected to, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effect);
(vi) except with respect to investments set forth in the Parent Reports, any partnership, limited liability company, joint venture or other similar Contract that is not entered into in the Ordinary Course of Business and is material to the Parent and its subsidiaries, taken as a whole;
(vii) any non-competition or non-solicitation Contract or any other Contract that limits, purports to limit, or would reasonably be expected to limit in each case in any material respect the manner in which, or the localities in which, any material business of the Company and its subsidiaries (taken as a whole) is, could or proposed to be conducted or the types of business that the Company and its subsidiaries conducts or may conduct;
(viii) any Contract relating to the acquisition or disposition of any business or operations (whether by merger, sale of stock, sale of assets or otherwise) involving value in excess of $5,000 (individually or together with all related Contracts) as to which there are any ongoing obligations or that was entered into on or after January 1, 2014 other than Contracts entered into in the Ordinary Course of Business with respect to investments set forth in the Parent Reports;
(ix) prohibit any Contract that obligates the Parent or materially delay any of its subsidiaries to conduct any business that is material to the Parent and its subsidiaries, taken as a whole, on an exclusive basis with any third party, or upon consummation of the Offertransactions contemplated by this Agreement, will obligate Parent, the Merger Acquisition Subsidiary or any of their subsidiaries to conduct business with any third-party on an exclusive basis;
(x) any Contract with a Governmental Entity;
(xi) any Contract relating to any collateral management, investment advisory or other management or advisory fees in excess of $10,000 per year payable by or to the other Transactions, (2) otherwise prevent Parent or materially delay performance by the Company of any of its material obligations subsidiaries;
(xii) any agreement (or group of related agreements) under this Agreement which it has created, incurred, assumed or guaranteed (3or may create, incur, assume or guarantee) result indebtedness (including capitalized lease obligations) or under which it has imposed (or may impose) a Lien on any of its assets, tangible or intangible;
(xiii) any agreement concerning confidentiality or noncompetition;
(xiv) any employment or consulting agreement;
(xv) any agreement involving any current or former officer, director or stockholder of the Parent or any “associate” or member of the “immediate family” (as such terms are respectively defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or Affiliate thereof;
(xvi) any agreement under which the consequences of a Company default or termination would reasonably be expected to have a Parent Material Adverse Effect. None ;
(xvii) any agreement which contains any provisions requiring the Parent or any of its subsidiaries to indemnify any other party thereto (excluding indemnities contained in agreements for the purchase, sale or license of products entered into in the Ordinary Course of Business);
(xviii) any other agreement (or group of related agreements) either involving more than $5,000 or not entered into in the Ordinary Course of Business;
(xix) any agreement, other than as contemplated by this Agreement, relating to the sales of securities of the Company Parent or any of its subsidiaries to which the Parent or such subsidiary is a party; and
(xx) any other Contract that is a “material contract” within the meaning of Item 601(b)(10) of the SEC’s Regulation S-K or that is material to the Parent or its financial condition or results of operations.
(b) The Parent has delivered or made available to the Company Subsidiary knows a complete and accurate copy of each agreement listed in Section 3.16 of the Parent Disclosure Schedule. With respect to each agreement so listed: (i) the agreement is legal, valid, binding and enforceable and in full force and effect; (ii) the agreement will continue to be legal, valid, binding and enforceable and in full force and effect immediately following the Closing in accordance with the terms thereof as in effect immediately prior to the Closing; and (iii) neither the Parent nor any of its subsidiaries nor, to the knowledge of the Parent, any other party, is in breach or violation of, or has received notice ofdefault under, any violation or default under (or any condition which such agreement, and no event has occurred, is pending or, to the knowledge of the Parent, is threatened, which, after the giving of notice, with the passage lapse of time or the giving of notice otherwise, would cause such constitute a violation of breach or default under) any Company Agreement relating to by the ADS Business, the Acquired Assets or the Retained Liabilities except for violations or defaults that would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger Parent or any of the other Transactionsits subsidiaries or, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. The Company has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all knowledge of the Company Material Contracts or Parent, any other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities 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 or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of party under such contractsContract.
Appears in 1 contract
Contracts. Except as filed as exhibits to the Company SEC Documents filed prior to the date hereof, or as disclosed in Section 3.13 of the Company Disclosure Schedule, there is no Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities (a) any Private Company has made available to Public Company a copy of the benefits each Private Company Material Contract to any which Private Company is a party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or (b) which, as of the date hereofof this Agreement. For purposes of this Agreement, “Private Company Material Contract” means (i) is (A) any agreement or contract pursuant to which Private Company and its Subsidiaries spent or received, in the aggregate, more than $2,000,000 during the fiscal year ended December 31, 2017 and (B) to the extent not included in clause (A), any agreement or contract with the ten (10) largest customers or suppliers of Private Company and its Subsidiaries, (ii) any non-competition or other agreement that prohibits or otherwise restricts, in any material respect, Private Company or any of its Subsidiaries from freely engaging in any business material to Private Company and its Subsidiaries, taken as a whole, anywhere in the world, (iii) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to Private Company and its Subsidiaries (assuming for this purpose that Private Company was subject to the requirements of the Exchange Act), (iiiv) involves aggregate expenditures any material partnership or joint venture agreements, (v) any agreement relating to the sale of any of the assets or properties (other than dispositions of inventory and consumables in the Ordinary Course of Business) of Private Company or any Subsidiary of Private Company in excess of $50,000 per annum250,000 other than those as to which the sale transaction has previously closed and (A) are so reflected on Private Company’s financial statements that were made available to Public Company prior to the date hereof and (B) Private Company or the Subsidiaries of Private Company have no continuing obligation thereunder, (iiivi) involves aggregate expenditures any agreement relating to the acquisition by Private Company or any Subsidiary of Private Company of any assets, operating business, or the capital stock of any other Person in excess of $50,000 250,000 other than those as to which the acquisition has previously closed and was not entered into in (A) are so reflected on Private Company’s financial statements that were made available to Public Company prior to the ordinary course date hereof and (B) Private Company or the Subsidiaries of businessPrivate Company have no continuing obligation thereunder, (ivvii) contains “take or pay” provisions applicable to the any agreement that obligates Private Company or any Subsidiary of Private Company Subsidiaryfor more than one year and has total projected revenue of at least $2,000,000, and (vviii) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to that certain Share Purchase Agreement, dated April 1, 2017, between AGC Holdings Limited and CSP Alpha Holdings Pte Ltd. (the Company“Aegis Share Purchase Agreement”); provided, any Company Subsidiary or any of the Company’s current or future affiliateshowever, or which restricts the conduct of any line of business by the Company, any of the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct business, in each case in any respect, (vi) would reasonably be expected to prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions or (vii) is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded Asset. Each contract of the type described in this Section 3.13, whether or not set forth in Section 3.13 of the Company Disclosure Schedule, is referred to herein as a that “Private Company Material Contract”. Each ” does not mean any Private Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities is valid and binding on the Company and each Company Subsidiary party thereto and, to the Company’s knowledge, each other party thereto, as applicable, and in full force and effect, and the Company and each Company Subsidiary has performed all obligations required to be performed by it under each such Company Agreement and, to the Company’s knowledge, each other party to each such Company Agreement has performed all obligations required to be performed by it under such Company Agreement, except as would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. 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 Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities except for violations or defaults that would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. The Company has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all of the Company Material Contracts or other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities 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 or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contractsLease.
Appears in 1 contract
Contracts. Except as filed as exhibits to the Company SEC Documents filed prior to (a) As of the date hereofof this Agreement, or as disclosed in Section 3.13 none of the Company Disclosure Schedule, there or any Company Subsidiary is no Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities (a) any of the benefits a party to any party of which will Contract required to be increased, or the vesting of the benefits to any party of which will be accelerated, filed by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except Company as disclosed pursuant to Section 3.11) or (b) which, as of the date hereof, (i) is a “material contract” (as such term is defined in pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act (a “Filed Company Contract”) that has not been so filed.
(b) Section 3.15(b) of the SECCompany Disclosure Letter sets forth, as of the date of this Agreement, a true and complete list, and the Company has made available, or caused to be made available, or certain OEMs have made available, to Parent true and complete copies (including all material amendments, modifications, supplements and restatements), of:
(i) (A) each Contract to which the Company or any of the Company Subsidiaries is a party that restricts in any material respect the ability of the Company or any Company Subsidiaries to compete with any Person or engage in any line of business or geographic area or otherwise market or sell its services and/or assets and that is material to the Company and the Company Subsidiaries, taken as a whole, (B) each Contract with a third party containing any “non-solicitation,” “no-hire” or similar provision restricting the Company or any Company Subsidiaries with respect to any customer or employee, (C) each Contract that provides for “exclusivity” or any similar requirement restricting the Company or any Company Subsidiaries and in favor of any third party, and (D) each material Contract that contains a provision that the Company or any Company Subsidiary grants a “most favored nation” or similar best available pricing terms to any third party;
(ii) involves aggregate expenditures each Contract pursuant to which any Indebtedness for borrowed money of the Company or any of the Company Subsidiaries in excess of $50,000 per annum10,000,000 is outstanding or may be incurred by its terms, other than any such agreement solely between or among the Company and the wholly owned Company Subsidiaries or between or among wholly owned Company Subsidiaries;
(iii) involves aggregate expenditures in excess each Contract to which the Company or any of $50,000 and was not entered into in the ordinary course of business, Company Subsidiaries is a party that evidences any swap or hedging transaction or other derivative agreements;
(iv) contains “take each partnership, joint venture or pay” provisions applicable 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;
(v) each Contract between the Company or any Company Subsidiary, on the one hand, and, on the other hand, any (vA) contains present executive officer or director of either the Company or any non-compete of the Company Subsidiaries, (B) based solely on Schedule 13G or exclusivity provisions Schedule 13D filings available as of the date hereof, any record or beneficial owner of more than 5% of the shares of Common Stock outstanding as of the date hereof or (C) to the Knowledge of the Company, any Affiliate of any such executive officer, director or owner (other than the Company or any of the Company Subsidiaries), in each case, other than those Contracts filed as exhibits (including exhibits incorporated by reference) to any Company SEC Documents;
(vi) each Contract relating to the disposition or acquisition by the Company or any of the Company Subsidiaries of any business or assets (other than the OEM Contracts) (A) for aggregate consideration under such Contract in excess of $15,000,000 that was entered into after January 1, 2022 and (B) with material obligations remaining to be performed or material liabilities continuing after the date of this Agreement;
(vii) other than Contracts for ordinary repair and maintenance, each Contract providing for the development or construction of, or additions or expansions to, any real property, under which the Company or any of the Company Subsidiaries has, or expects to incur, an obligation in excess of $5,000,000 in the aggregate;
(viii) each Contract pursuant to which (A) the Company or any Company Subsidiary grants any right, license or covenant not to sue with respect to any line material Intellectual Property Rights (other than non-exclusive licenses granted in the ordinary course of business or geographic area consistent with past practice and Contracts pursuant to which a non-exclusive license with respect to any Intellectual Property Rights is incidental to such Contract) or (B) the Company, Company or any Company Subsidiary obtains any right, license or covenant not to sue with respect to any material Intellectual Property Rights (other than non-exclusive licenses for commercial off-the-shelf software which are generally available or non-exclusive uses of Intellectual Property Rights that are incidental to OEM Contracts and Contracts for buyer furnished equipment);
(ix) each (A) Aircraft Lease for Company Aircraft, (B) Servicing Agreement and (C) OEM Contract;
(x) each Contract with a Governmental Entity, other than Aircraft Leases, Aircraft Documents, OEM Contracts, Contracts relating to the sale of any Company Aircraft in existence as of the Company’s current date hereof, and Permits;
(xi) any Contract (other than a Contract that is a Material Contract pursuant to clauses (i)-(x) above) to which the Company or future affiliates, or which restricts the conduct of any line of business by the Company, any of the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct business, in each case in any respect, (vi) is a party that would reasonably be expected to prohibit involve aggregate payments by the Company or materially delay any Company Subsidiary during calendar year 2025 or any subsequent 12-month period of at least $15,000,000 and which is not terminable by the consummation Company or the applicable Company Subsidiary on less than 60 days’ written notice without penalty; and
(xii) any executed letter of the Offerintent, the Merger memorandum of understanding or similar agreement with respect to any of the other Transactions foregoing clauses (ii), (vi) or (viiix) is necessary for above; provided that the conduct following Contracts shall not be required to be listed on Section 3.15(b) of the ADS Business as currently conducted but constitutes Company Disclosure Letter, shall not be required to made available to Parent pursuant to this Section 3.15(b), and shall not be deemed a “Material Contract” for any purposes hereunder (whether or not a Filed Company Contract): (1) any Company Benefit Plan, (2) any Contract between the Company, on the one hand, and one or more Company Subsidiaries, on the other hand, or between one or more Company Subsidiaries and (3) any Real Estate Lease, which is the subject of Section 3.16 (any such Contract in clauses (1) through (3), an “Excluded AssetContract”). Each contract of the type Contract described in this Section 3.133.15(b) and each Filed Company Contract, whether or not set forth in Section 3.13 of the Company Disclosure Scheduleeach case, other than any Excluded Contract, is referred to herein as a “Company Material Contract.”. Each Company Agreement relating
(c) Except for (x) Contracts that are Material Contracts solely pursuant to the ADS BusinessSection 3.15(b)(xii), the Acquired Assets or the Retained Liabilities is valid and binding on the Company and each Company Subsidiary party thereto and, to the Company’s knowledge, each other party thereto, as applicable(y) Material Contracts that have expired in accordance with their terms, and in full force and effect, and the Company and each Company Subsidiary has performed all obligations required to be performed by it under each such Company Agreement and, to the Company’s knowledge, each other party to each such Company Agreement has performed all obligations required to be performed by it under such Company Agreement, except as would not, or would not be reasonably expected to(z) matters which, individually or in the aggregate, (1) prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in have not had and would not reasonably be expected to have a Company Material Adverse Effect. None , (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, fraudulent transfer, moratorium 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, as of the date hereof, no written notice or, to the Knowledge of the Company, oral notice of termination been given or received by the Company or any Company Subsidiary knows ofin respect of any Material Contract, or has received notice of, any violation or default under and (or any condition which with the passage of time or the giving of notice would cause such a violation of or default underiii) any Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities except for violations or defaults that would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation none of the Offer, the Merger Company or any of the Company Subsidiaries is (with or without notice or lapse of time, or both) in breach or default under any such Material Contract and, to the Knowledge of the Company, no other Transactionsparty to any such Material Contract is (with or without notice or lapse of time, or both) in breach or default thereunder and there does not exist any fact, circumstance, event, condition or omission that would constitute a default or breach (2with or without notice or lapse of time, or both), or that would give rise to a right in favor of any counterparty to terminate, avoid or accept repudiation of such Material Contract (other than Material Contracts that may be terminated for convenience), except, in the case of clauses (i) otherwise prevent or materially delay performance (ii), with respect to any Material Contract which expires by its terms (as in effect as of the date hereof) or which is terminated in accordance with the terms thereof by the Company in the ordinary course of any of its material obligations under this Agreement or business consistent with past practice.
(3d) result in a Company Material Adverse Effect. The Company has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all of the Company Material Contracts or other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities required to be disclosed in Section 3.13 3.15(d) of the Company Disclosure ScheduleLetter contains a true and accurate schedule, which are not filed as exhibits of the date set forth therein, of the total amount of PDPs paid by the Company and its Subsidiaries to the applicable OEMs in respect of each Undelivered Orderbook Aircraft pursuant to the applicable Orderbook Contracts. The Company SEC Documents and the Company Material Contracts or other Company Agreements required to be disclosed in Section 3.13 shall provide an updated schedule of such information as of the Company Disclosure Schedule filed as exhibits date hereof to Parent within twenty (20) Business Days of the Company SEC Documents are true, complete and correct copies of such contractsdate hereof.
Appears in 1 contract
Sources: Merger Agreement (Air Lease Corp)
Contracts. Except as filed as exhibits The JV is not a party to any contracts other than the JV Agreement. All of the Contracts that are material to the Company SEC Documents filed prior to the date hereof, or as disclosed in Section 3.13 business of the Company Disclosure ScheduleEntities or their Subsidiaries, taken as a whole, are listed on Schedule 4.7, with the exception of interests in real property and construction contracts and master services agreements or purchase orders entered into in the Ordinary Course of Business and retained by MIDSTREAM as operator of the Assets. The Entities and their Subsidiaries are not in default and there is no Company Agreement relating event or circumstance that with notice, or lapse of 21 time or both, would constitute an event of default by the applicable Entity or Subsidiary under the terms of the Contracts. All of the Contracts of the Entities and their Subsidiaries are in full force and effect and to HOLDINGS’ and MIDSTREAM’S Knowledge, no counter-party to any of the ADS Business, Contracts is in default under the Acquired Assets terms of such Contracts. Schedule 4.7 lists each Contract to which the Entitles or the Retained Liabilities their Subsidiaries are a party that: (a) any expressly obligates an Entity to pay an amount of $500,000 (to the benefits to any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11100% Subject Interests) or (b) which, more and has not been fully performed as of the date hereof; (b) expressly restricts the ability of an Entity or its Subsidiaries to compete or otherwise to conduct its business in any manner or place; (c) provides for the sale of products or the provision of services (for a term greater than a year) for amounts in excess of $500,000 (to the 100% Subject Interests and including outstanding offers or quotes which by acceptance would create such a Contract) and which have not been fully performed as of the date hereof; (d) provides a right of first refusal or other restrictive right that limits the ability to transfer, sell or assign an interest in the Assets or an equity interest in the Entities or any Subsidiary; (e) is a master agreement, swap, derivative, option, future or similar type Contract or any open agreement or position thereunder; (f) is with any current or former employee, officer, director or consultant of HOLDINGS or an Entity, their Subsidiaries or their respective Affiliates; (g) is an inter-company agreement; (h) is with any labor union or association; (i) is a “material contract” partnership or joint venture agreement with a Third Person in which the Entities or their Subsidiaires is a party or by which any of them are bound; (as such term j) is defined in Item 601(b)(10) of Regulation S-K of the SEC), (ii) involves aggregate expenditures an agreement with a consideration in excess of $50,000 per annum500,000 (to the 100% Subject Interests) by an Entity or its Subsidiaries to purchase or sell any assets (other than inventory in the Ordinary Course of Business), businesses, capital stock or other debt or equity securities of any Person and which have not been fully preformed as of the date hereof; or (iiik) involves aggregate expenditures is an agreement with a consideration in excess of $50,000 and was not entered into in the ordinary course of business, 500,000 (iv) contains “take or pay” provisions applicable to the Company 100% Subject Interests) involving the merger, consolidation, purchase, sale, transfer or other disposition of interests in real property, capital stock or other debt or equity securities of any Company Subsidiary, (v) contains any non-compete or exclusivity provisions with respect Person prior to any line of business or geographic area with respect to the Company, any Company Subsidiary or any Closing and which have not been fully preformed as of the Company’s current or future affiliates, or which restricts the conduct of any line of business by the Company, any of the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct business, in each case in any respect, (vi) would reasonably be expected to prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions or (vii) is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded Asset. Each contract of the type described in this Section 3.13, whether or not set forth in Section 3.13 of the Company Disclosure Schedule, is referred to herein as a “Company Material Contract”. Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities is valid and binding on the Company and each Company Subsidiary party thereto and, to the Company’s knowledge, each other party thereto, as applicable, and in full force and effect, and the Company and each Company Subsidiary has performed all obligations required to be performed by it under each such Company Agreement and, to the Company’s knowledge, each other party to each such Company Agreement has performed all obligations required to be performed by it under such Company Agreement, except as would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. 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 Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities except for violations or defaults that would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. The Company has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all of the Company Material Contracts or other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities 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 or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contractsdate hereof.
Appears in 1 contract
Sources: Contribution Agreement
Contracts. (a) Except as filed as exhibits to for this Agreement, any Company Benefit Plan and except for the Contracts disclosed in the Filed Company SEC Documents filed prior to the date hereofDocuments, or as disclosed in Section 3.13 3.13(a) of the Company Disclosure Schedule, there is no Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities (a) any of the benefits to any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or (b) whichLetter sets forth a true and complete list, as of the date hereofof this Agreement, and the Company has made available to Parent true and complete copies (including all amendments and guarantees related thereto), of:
(i) is each Contract that would be required to be filed by the Company as a “material contract” (as such term is defined in pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(ii) each Contract to which the Company or any Company Subsidiary is a party that is a settlement or similar agreement pursuant to which (A) the Company or any Company Subsidiary will be required after the date of this Agreement to pay any monetary obligations or (B) that contains material obligations or limitations on the conduct of the SECCompany or any Company Subsidiary other than customary confidentiality obligations;
(iii) each Contract to which the Company or any Company Subsidiary is a party that (A) restricts the ability of the Company or any Company Subsidiary to compete in any business or with any Person in any geographical area, (B) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party or (C) provides for “exclusivity” or any similar requirement in favor of any third party, except in the case of each of clauses (A), (iiB) involves aggregate expenditures in excess of $50,000 per annumand (C) for such restrictions, requirements and provisions that are not material to the Company and the Company Subsidiaries, taken as a whole;
(iiiiv) involves aggregate expenditures in excess of $50,000 and was not each Contract under which the Company or any Company Subsidiary licenses, sublicenses or otherwise grants or receives rights to Intellectual Property from or to any third party (other than off-the-shelf, commercially available and/or “shrink-wrap” agreements entered into in the ordinary course of business), except for such licenses, sublicenses and other rights that are not material to the Company and the Company Subsidiaries, taken as a whole;
(ivv) contains “take or pay” provisions applicable to each Contract that by its express terms requires the Company or any Company Subsidiary, or any successor to, or acquirer of, the Company or any Company Subsidiary, to make any payment in excess of $500,000 to another Person as a result of a change of control of the Company or any Company Subsidiary (va “Change‑of‑Control Payment”) contains or gives another Person a right to receive or elect to receive a Change‑of‑Control Payment, or terminate or modify in any non-compete material respect the terms of a material Contract as a result of a change of control of the Company or exclusivity provisions any Company Subsidiary;
(vi) each Contract to which the Company or any Company Subsidiary is a party that provides for annual payments or receipts in excess of $2,000,000 or provides for payments or receipts in the aggregate in excess of $5,000,000, other than payments for legal services;
(vii) each Contract to which the Company or any Company Subsidiary is a party relating to indebtedness for borrowed money or any financial guaranty, in each case with respect to any line a principal amount in excess of business $1,000,000;
(viii) each Contract to which the Company or geographic area with respect to the Company, any Company Subsidiary is a party with any supplier of tangible products or services that provides for annual payments in excess of $2,000,000 or provides for payments or receipts in the aggregate in excess of $5,000,000, other than payments for legal services;
(ix) each Contract for the acquisition or divestiture of a business (including any of Contract containing an option to so acquire or divest) to which the Company’s current Company or future affiliates, or which restricts the conduct of any line of business by the Company, any of the Company’s current or future affiliates, any Company Subsidiary is a party that contains (A) continuing covenants, indemnities or any geographic area other payment obligations that would reasonably be expected to result in which the Company, receipt or making of future payments by the Company or any Company Subsidiary in excess of $1,000,000, or (B) any other material obligations;
(x) each Contract to which the Company or any Company Subsidiary is a party that relates to any swap, forward, futures, or other similar derivative transaction with a notional value as of the Company’s current date of this Agreement in excess of $500,000;
(xi) each material Contract with any Governmental Entity to which the Company or future affiliates may conduct businessany Company Subsidiary is a party;
(xii) each Contract pursuant to which the Company or any Company Subsidiary has continuing obligations or interests involving (A) milestone or similar payments, including upon the achievement of regulatory or commercial milestones, in each case in excess of $1,000,000 of future payments in the aggregate or (B) payment of royalties or other amounts calculated based upon any respect, (vi) would reasonably be expected to prohibit revenues or materially delay the consummation income of the OfferCompany or any Company Subsidiary, in each case in excess of $1,000,000 of future payments in the Merger aggregate;
(xiii) each Contract with or binding upon the Company or any of the other Transactions Company Subsidiaries or (vii) any of their respective properties or assets that is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded Asset. Each contract of the type that would be required to be disclosed under Item 404 of Regulation S‑K under the Securities Act;
(xiv) each Contract to which the Company or any Company Subsidiary is a party that is for the lease of real property with annual payments by the Company and the Company Subsidiaries in excess of $750,000; and
(xv) each partnership, joint venture or similar agreement to which the Company or any Company Subsidiary is a party that relates to the formation, creation, operation, management or control of any material partnership or joint venture. Each such Contract described in this Section 3.13, whether or not set forth in Section 3.13 of the Company Disclosure Schedule, clauses (i) through (xv) above is referred to herein as a “Company Material Specified Contract”. .
(b) Each Company Agreement relating to of the ADS BusinessSpecified Contracts is valid, the Acquired Assets or the Retained Liabilities is valid binding and binding enforceable on the Company and each or a Company Subsidiary party thereto Subsidiary, as the case may be, and, to the knowledge of the Company’s knowledge, each other party thereto, as applicable, and is in full force and effect, and the Company and each Company Subsidiary has performed all obligations required except for such failures to be performed by it under each such Company Agreement andvalid, to the Company’s knowledge, each other party to each such Company Agreement has performed all obligations required binding or enforceable or to be performed by it under such Company Agreement, except in full force and effect as would not, or would not reasonably be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in have a Company Material Adverse Effect. None of There is no default under any Specified Contract by the Company or any Company Subsidiary knows ofor, or has received notice ofto the knowledge of the Company, any violation or default under (or any condition which other party thereto, and no event has occurred that with the passage lapse of time or the giving of notice or both would cause such constitute a violation of default thereunder by the Company or default under) any Company Agreement relating Subsidiary or, to the ADS Businessknowledge of the Company, the Acquired Assets or the Retained Liabilities any other party thereto, in each case except for violations or defaults that would not, or as would not reasonably be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in have a Company Material Adverse Effect. The Company has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all of the Company Material Contracts or other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities 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 or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contracts.
Appears in 1 contract
Sources: Merger Agreement (AveXis, Inc.)
Contracts. (i) Except as filed as exhibits to disclosed in the Filed Company SEC Documents filed prior and except with respect to the date hereof, or as disclosed in Section 3.13 of the Company Disclosure Schedule, there is no Company Agreement licenses and other agreements relating to intellectual property, which are the ADS Business, the Acquired Assets or the Retained Liabilities (a) any subject of the benefits to any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or (b) which3.01(p), as of the date hereof, (i) neither the Company nor any of its Subsidiaries is a “material contract” (as such term party to, and none of their respective properties or other assets is defined in Item 601(b)(10) of Regulation S-K of the SEC), (ii) involves aggregate expenditures in excess of $50,000 per annum, (iii) involves aggregate expenditures in excess of $50,000 and was not entered into in the ordinary course of business, (iv) contains “take or pay” provisions applicable to the Company or any Company Subsidiary, (v) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to the Companysubject to, any Company Subsidiary Contract that is of a nature required to be filed as an exhibit to a report or any filing under the Securities Act or the Exchange Act and the rules and regulations promulgated thereunder. None of the Company’s current or future affiliates, or which restricts the conduct of any line of business by the Company, any of its Subsidiaries or, to the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which Knowledge of the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct business, in each case in any respect, (vi) would reasonably be expected to prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions or (vii) is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded Asset. Each contract of the type described in this Section 3.13, whether or not set forth in Section 3.13 of the Company Disclosure Schedule, is referred to herein as a “Company Material Contract”. Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities is valid and binding on the Company and each Company Subsidiary party thereto and, to the Company’s knowledge, each other party thereto, as applicable, and is in full force and effect, and the Company and each Company Subsidiary has performed all obligations required to be performed by it under each such Company Agreement and, to the Company’s knowledge, each other party to each such Company Agreement has performed all obligations required to be performed by it under such Company Agreement, except as would not, or would not be reasonably expected to, individually violation of or in the aggregate, (1) prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. None of the Company or any Company Subsidiary knows of, or has received notice of, any violation or default under (or nor does there exist any condition which with upon the passage of time or the giving of notice or both would cause such a violation of or default under) any Company Agreement relating Contract, to the ADS Businesswhich it is a party or by which it or any of its properties or other assets is bound, the Acquired Assets or the Retained Liabilities except for violations or defaults that would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in aggregate have not had and would not reasonably be expected to have a Company Material Adverse Effect. The Neither the Company nor any of its Subsidiaries has entered into any Contract with any Affiliate of the Company that is in effect as of the date hereof other than Contracts that are disclosed in the Filed Company SEC Documents. Neither the Company nor any of its Subsidiaries is a party to or otherwise bound by any agreement or covenant (A) restricting in any material respect the Company’s or its Subsidiaries’ ability to compete, (B) restricting in any respect the Company’s Affiliates’ ability to compete (other than the Company’s Subsidiaries), (C) restricting in any material respect the research, development, distribution, sale, supply, license, marketing or manufacturing of products or services of the Company or any of its Subsidiaries, (D) restricting in any respect the research, development, distribution, sale, supply, license, marketing or manufacturing of products or services of any of the Company’s Affiliates (other than the Company’s Subsidiaries) or (E) containing a right of first refusal, right of first negotiation or right of first offer in favor of a party other than the Company or its Subsidiaries.
(ii) Each employee, contractor or consultant of the Company and its Subsidiaries who has proprietary knowledge of or information relating to the material elements of the design, the manufacturing processes or the formulation of the products of the Company or any of its Subsidiaries has executed and delivered to the Purchaser Company or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all applicable Subsidiary of the Company Material Contracts an agreement or other Company Agreements relating to agreements, substantially in the ADS Business, the Acquired Assets or the Retained Liabilities required to be disclosed form(s) set forth in Section 3.13 3.01(i)(ii) of the Company Disclosure Schedule, which are not filed as exhibits (or is otherwise subject to the Company SEC Documents restrictions) restricting such person’s right to use and the Company Material Contracts or other Company Agreements required to be disclosed in Section 3.13 disclose confidential information of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies or any of such contractsits Subsidiaries.
Appears in 1 contract
Contracts. (i) Except as filed as exhibits to the Company SEC Documents filed prior to the date hereof, or as disclosed in Section 3.13 set forth on (15) of the Company DoctorSurf Disclosure Schedule, there is no Company Agreement relating to the ADS Business, the Acquired Assets none of DoctorSurf or the Retained Liabilities (a) any of the benefits to any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or (b) which, as of the date hereof, (i) its subsidiaries is a “material contract” party to or bound by, and none of their properties or assets are bound by or subject to, any written or oral:
(as such term is defined in Item 601(b)(101) of Regulation S-K of the SEC), (ii) involves aggregate expenditures in excess of $50,000 per annum, (iii) involves aggregate expenditures in excess of $50,000 and was Contract not entered into made in the ordinary course of business, ;
(iv2) contains “take employment agreement that is not terminable at will by DoctorSurf or pay” provisions applicable to the Company such subsidiary both without any penalty and without any obligation of DoctorSurf or any Company Subsidiaryof its subsidiaries to pay severance or other amounts (including any bonus);
(3) any agreement under which it has created, incurred, assumed, or guaranteed indebtedness (vincluding capitalized lease obligations) contains involving more than $10,000;
(4) any non-other agreement requiring the payment or receipt by DoctorSurf or a subsidiary of more than $10,000 annually;
(5) Contract pursuant to which DoctorSurf or any of its subsidiaries has agreed not to compete with any person or exclusivity to engage in any activity or business;
(6) Contract which is material in any respect containing any provisions dealing with a "change of control" or similar event with respect to any line of business or geographic area with respect to the Company, any Company Subsidiary DoctorSurf or any of the Company’s current or future affiliates, or which restricts the conduct of any line of business by the Company, any of the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct business, in each case in any respect, subsidiary;
(viii) would reasonably be expected to prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions or (vii) is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded Asset. Each material contract of the type described DoctorSurf and each of its subsidiaries is in this Section 3.13full force and effect and is a legal, whether or not set forth in Section 3.13 of the Company Disclosure Schedule, is referred to herein as a “Company Material Contract”. Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities is valid and binding on the Company agreement of DoctorSurf or such subsidiary and each Company Subsidiary party thereto and, to the Company’s knowledge, of each other party thereto, enforceable against DoctorSurf or any of its subsidiaries, as applicablethe case may be, and against the other party or parties thereto, in full force and effecteach case, and the Company in accordance with its terms. DoctorSurf and each Company Subsidiary of its subsidiaries has performed or is performing all material obligations required to be performed by it under each such Company Agreement of its material contracts and is not (with or without notice or lapse of time or both) in breach or default in any material respect thereunder; and, to the Company’s knowledgeknowledge of DoctorSurf or such subsidiary, each no other party to each such Company Agreement has performed all obligations required to be performed by it under such Company Agreement, except as would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement contracts is (with or (3) result in a Company Material Adverse Effect. None of the Company without notice or any Company Subsidiary knows of, or has received notice of, any violation or default under (or any condition which with the passage lapse of time or the giving of notice would cause such a violation of both) in breach or default underin any material respect thereunder. Neither DoctorSurf nor any of its subsidiaries knows of any circumstances existing on the date of this Agreement that is reasonably likely to (x) materially adversely affect its ability to perform its obligations under any Company Agreement relating to material contract or (y) materially adversely affect the ADS Business, the Acquired Assets or the Retained Liabilities except for violations or defaults that would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any ability of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of party to any of its material contract to perform their obligations under this Agreement or (3) result in a Company Material Adverse Effect. The Company has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all of the Company Material Contracts or other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities 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 or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contractsthereunder.
Appears in 1 contract
Contracts. Except as filed as exhibits to the Company SEC Documents filed prior to the date hereof, or as disclosed in (a) Section 3.13 of the Company Disclosure Schedule, there is no Company Agreement Schedule lists the following written agreements relating to the ADS Business, the Acquired Assets Business to which either of WPI or the Retained Liabilities (a) WIN or any of the benefits to any their respective Subsidiaries is a party of and which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated are in effect on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or (b) which, as of the date hereof, :
(i) is a “material contract” (as such term is defined any loan agreement, credit agreement, security agreement, promissory note, mortgage, indenture or other contract that provides for the borrowing of money by or extensions of credit to either of WPI or WIN or any of their respective Subsidiaries or the guaranty by either of WPI or WIN or any of their Subsidiaries of obligations in Item 601(b)(10) of Regulation S-K respect of the SEC)borrowings of money by or extensions of credit to any other Person, (ii) involves aggregate expenditures in any case involving in excess of $50,000 per annum100,000 of indebtedness or committed credit;
(ii) any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or other material plan or arrangement for the benefit of the current or former directors, officers or employees of either WPI or WIN or any of their respective Subsidiaries;
(iii) any employment or consulting agreement for a term in excess of one year or which involves aggregate expenditures the payment of annual compensation in excess of $50,000 and was not entered into in the ordinary course of business, 50,000;
(iv) contains “take or pay” provisions applicable any agreement providing for indemnification of any Person with respect to the Company or any Company Subsidiary, Liabilities;
(v) contains any non-compete agreements for the purchase or exclusivity provisions with respect to any line of business or geographic area with respect to the Company, any Company Subsidiary or any of the Company’s current or future affiliates, or which restricts the conduct sale of any line of business by the Company, any of the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct business, in each case in any respectcorporation, partnership, limited liability partnership, limited liability company, joint venture, association or other business organization;
(vi) any agreement under which the consequences of a default or termination would have or reasonably be expected to prohibit have a Material Adverse Effect on the Business;
(vii) any Business IP License granting exclusive rights to any Business Intellectual Property or materially delay granting rights to any Registered Trademarks or the consummation Trademarks for the Weider Titles;
(viii) any other agreement of the Offer, the Merger either of WPI or WIN or any of their respective Subsidiaries (or group of related agreements) the other Transactions performance of which involves consideration in excess of $250,000, except those that may be canceled by either of WPI or WIN or a Subsidiary of either of WPI or WIN, as the case may be, without material penalty upon not more than 90 days' notice; and
(viiix) is necessary for any agreement that contains any noncompetition obligation or otherwise restricts in any material way the conduct of Business; and
(x) any agreement otherwise material to the ADS Business as currently conducted but constitutes an Excluded AssetBusiness, and not required to be listed pursuant to clauses (i) through (ix) above. Each contract of the type described in this Section 3.13, whether or not All contracts and agreements set forth in Section 3.13 of the Company Disclosure Schedule, is Schedule are referred to herein as a “Company "Material Contract”. Each Company Agreement relating to Contracts."
(b) Except as set forth in Section 3.13 of the ADS BusinessDisclosure Schedule, the Acquired Assets or the Retained Liabilities (i) each Material Contract is valid and binding on the Company and each Company Subsidiary party thereto and, to the Company’s knowledge, each other party thereto, as applicable, and in full force and effecteffect and is the legal, valid and binding obligation of either of WPI and WIN or the Company and each Company respective Subsidiary has performed all obligations required thereof which is a party to be performed by it under each such Company Agreement Material Contract, subject to the Remedies Exception and, to WHF Parent's Knowledge, the Company’s knowledgeother parties thereto (the "Other Parties"), each other party and (ii) none of WPI and WIN or their respective Subsidiaries or, to each WHF Parent's Knowledge, any of the Other Parties to any Material Contract is in breach, violation or default, and, to WHF Parent's Knowledge, no event has occurred which with notice or lapse of time or both would constitute a breach, violation or default by any such Company Agreement has performed all obligations required to be performed party, or permit termination, modification, or acceleration by it the Other Parties, under such Company AgreementMaterial Contract, except as (A) for breaches, violations or defaults which would not, or would not be reasonably expected to, individually or in the aggregate, have or reasonably be expected to have a Material Adverse Effect on the Business, and (1B) prohibit that in order to avoid a default, violation or materially delay breach under any Material Contract the consummation Consent of the Offer, the Merger or any Other Parties set forth in Section 3.2 of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result Disclosure Schedule may be required in a Company Material Adverse Effect. None of the Company or any Company Subsidiary knows of, or has received notice of, any violation or default under (or any condition which connection with the passage of time or the giving of notice would cause such a violation of or default under) any Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities except for violations or defaults that would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. The Company has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all of the Company Material Contracts or other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities 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 or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contractstransactions contemplated hereby.
Appears in 1 contract
Sources: Purchase and Contribution Agreement (American Media Operations Inc)
Contracts. Except as filed as exhibits to the Company SEC Documents filed prior to the date hereof, or as disclosed in Section 3.13 of the Company Disclosure Schedule, there is no Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities (a) any The Company has delivered or made available to Parent or its counsel an accurate and complete copy of the benefits to any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or (b) which, as of the date hereof, each Contract that is currently in effect:
(i) that is a “material contract” (as such term is defined in required to be filed by the Company under Item 601(b)(10) of SEC Regulation S-K of as an exhibit to its Annual Report on Form 10-K for the SEC)year ended June 30, 2018;
(ii) involves aggregate expenditures containing covenants of the Company or any of its Subsidiaries purporting to limit in excess any material respect any line of $50,000 per annumbusiness, industry or geographical area in which the Company or its Subsidiaries may operate, including any non-compete or exclusivity provision;
(iii) involves aggregate expenditures in excess that is a standstill or restrictive covenant agreement or that contains any standstill or similar agreement pursuant to which the Company or any of $50,000 and was its Affiliates has agreed not to acquire or to other limitations with respect to assets or securities of another Person (other than confidentiality entered into in the ordinary course of business, );
(iv) contains pursuant to which the Company or any of its Subsidiaries has potential indemnification obligations to any Person in excess of $10,000,000, except for ordinary course vendor and sales agreements;
(v) that is a partnership, joint venture, limited liability company or similar arrangement or agreement relating to the formation, creation, operation, management or control of any partnership or joint venture with any other Person (other than the Company or any of its Subsidiaries);
(vi) that relates to or evidences Indebtedness or capital leases in excess of $10,000,000;
(vii) between the Company, on the one hand, and any director of the Company, or any employee of the Company or any of its Subsidiaries who holds a position in Total Compensation Group 1, 2, 3 or 4, or any Person beneficially owning five percent or more of the outstanding shares of Company Common Stock or any of their respective Affiliates (other than the Company and its Subsidiaries), on the other hand;
(viii) that grants any right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of its Subsidiaries to sell, transfer, pledge or otherwise dispose of any material assets or businesses;
(ix) containing a put, call or similar right pursuant to which the Company or any of its Subsidiaries could be required to purchase or sell, as applicable, any equity interests of any Person or assets that have a fair market value or purchase price of more than $25,000,000;
(x) evidencing financial or commodity hedging or similar trading activities, including any interest rate swaps, financial derivatives master agreements or confirmations, or futures account opening agreements and/or brokerage statements or similar Contract to which the Company or any of its Subsidiaries is a party;
(xi) is a Contract pursuant to which the Company or any of its Subsidiaries is granted material rights in or obtains a material license under IP Rights included in or otherwise material to (1) any product (including any product for which material development is ongoing) or service marketed or sold by the Company and its Subsidiaries or (2) the conduct of the business of the Company and its Subsidiaries which provided for payments from the Company or any of its Subsidiaries in excess of $1,000,000 for the 2017 fiscal year or in excess of $1,000,000 for the 2018 fiscal year or any year thereafter, in each case excluding (A) non-exclusive licenses to commercially available software with annual fees of less than $5,000,000, (B) licenses to any software subject to an “take open source” or pay” provisions applicable similar license, and (C) licenses to third-party software that is provided with an item of equipment, hardware or other tangible property;
(xii) is a Contract pursuant to which the Company or any Company SubsidiarySubsidiary grants to any third party any rights in or to use any material IP Rights owned by the Company and its Subsidiaries, (v) contains any excluding non-compete exclusive licenses granted in the ordinary course of business;
(xiii) that prohibits the payment of dividends or exclusivity provisions with distributions in respect to any line of business or geographic area with respect to the Company, any capital stock of the Company Subsidiary or any of its Subsidiaries or the Company’s current pledging of the capital stock of the Company or future affiliates, or which restricts the conduct any of any line of business by the Company, its Subsidiaries;
(xiv) that is a Contract with any of the Company’s current 30 largest customers by BRR as of December 31, 2018 or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct business, in each case in any respect, (vi) would reasonably be expected to prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions or (vii) is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded Asset. Each contract of the type described in this Section 3.13, whether or not a customer set forth in on Section 3.13 2.8(a)(xiv) of the Company Disclosure Schedule;
(xv) that is a Contract with any of the (i) top 10 vendors by operating expenditure, (ii) top 5 vendors by capital expenditure or (iii) vendors set forth on Section 2.8(a)(xv) of the Company Disclosure Schedule;
(xvi) that provides for the settlement of any material claim against the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries has any existing material monetary payment or obligation; or
(xvii) that provides for the acquisition or disposition by the Company or any Subsidiary of the Company of any material properties, rights or assets (except for acquisitions and dispositions of inventory in the ordinary course of business consistent with past practice), pursuant to which the Company or any Subsidiary of the Company has any material indemnification, earn-out or other contingent obligations.
(b) Each Contract of a type described in Section 2.8(a) is referred to herein as a “Company Material Contract”. Each Company Agreement relating to of the ADS Business, the Acquired Assets or the Retained Liabilities Material Contracts is valid and binding on the Company and each Company Subsidiary party thereto or its Subsidiaries, as the case may be, and, to the Company’s knowledgeKnowledge, each other party thereto, as applicable, and is in full force and effect, and the Company and each Company Subsidiary has performed all obligations required except for such failures to be performed by it under valid and binding or to be in full force and effect (in each such Company Agreement andcase, subject to the Company’s knowledge, each other party to each such Company Agreement has performed all obligations required to be performed by it under such Company Agreement, except Remedies Exception) as would not, or would not reasonably be reasonably expected to, individually or in the aggregate, (1) prohibit or be materially delay adverse to the consummation business of the OfferCompany and its Subsidiaries, taken as a whole. There exists no invalidity, failure to be binding, unenforceability, ineffectiveness, breach or default with respect to any such Material Contracts on the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. None part of the Company or any Company Subsidiary knows ofof its Subsidiaries or, or has received notice ofto the Company’s Knowledge, any violation or default under (or any condition which other party thereto, and no event has occurred that with the passage lapse of time or the giving of notice or both would cause such constitute a violation of breach or default under) thereunder by the Company or any Company Agreement relating of its Subsidiaries or, to the ADS BusinessCompany’s Knowledge, the Acquired Assets any other party thereto, except in each case, where such invalidity, failure to be binding, unenforceability, ineffectiveness, breach or the Retained Liabilities except for violations or defaults that default would not, or would not reasonably be reasonably expected to, individually or in the aggregate, (1) prohibit or be materially delay consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. The Company has delivered adverse to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all business of the Company Material Contracts or other Company Agreements relating to the ADS Businessand its Subsidiaries, the Acquired Assets or the Retained Liabilities required to be disclosed in taken as a whole.
(c) Section 3.13 of the Company Disclosure Schedule, which are not filed as exhibits to the Company SEC Documents and the Company Material Contracts or other Company Agreements required to be disclosed in Section 3.13 2.8 of the Company Disclosure Schedule filed includes an accurate and complete list as exhibits to of the date of this Agreement of all Material Contracts (other than Material Contracts specified in Section 2.8(a)(xiv) and in Section 2.8(a)(xv)). Material Contracts specified in Section 2.8(a)(xiv) are set forth in Section 6.10 of the Data Room and Material Contracts specified in Section 2.8(a)(xv) are set forth in Section 6.16 of the Data Room.
(d) The Circuit Database specifies all contracted monthly recurring revenues generated by the Acquired Companies, excluding the Allstream Business and Zayo Professional Services, LLC, as of March 31, 2019, and is an accurate summary of the information contained therein in all material respects.
(e) The IRU Waterfall included in Section 2.8(e) of the Company SEC Documents Disclosure Schedule provides an accurate summary of the portions of the Physical Network acquired under an indefeasible right of use by the Acquired Entities and that are truegreater than 1,000 route miles, complete including the location and correct copies scheduled expiration in respect of such contractsindefeasible rights of use.
Appears in 1 contract
Sources: Merger Agreement (Zayo Group LLC)
Contracts. (a) Section 3.20(a)(i) of the Company Disclosure Schedule sets forth a complete and accurate list of all contracts, agreements and other arrangements to which Company or any of Company's Subsidiaries is a party or by which Company, any of Company's Subsidiaries or any of their respective assets are bound (excluding plans referred to in Sections 3.9 and 6.5 and leases referred to in Section 3.16) pursuant to which (i) any party thereto is entitled prospectively to receive in excess of $35,000, (ii) any party thereto has the right or option prospectively to order products or services the consideration for which would exceed $35,000, or (iii) payments are based on the profits or revenues of Company or any of Company's Subsidiaries (hereinafter referred to collectively as (the "Contracts"). Each of the Contracts is in full force and effect and enforceable in accordance with its terms. Neither Company nor Company's Subsidiaries have received any formal or official notice (written or oral) of cancellation or termination of, or intent to cancel or terminate, any of the Contracts. With respect to each Contract which by its terms will terminate within one year of the date hereof (or unless an option to extend such Contract is exercised), neither Company nor any of Company's Subsidiaries has received any formal or official notice (written or oral) that any such Contract will not be so renewed or that any such extension option will not be exercised. Except as filed as exhibits to the Company SEC Documents filed prior to the date hereof, or as disclosed set forth in Section 3.13 3.20(a)(ii) of the Company Disclosure Schedule, there is exists no event of default or occurrence, condition or act on the part of Company Agreement relating or any of Company's Subsidiaries or, to the ADS Businessbest knowledge of Company, on the Acquired Assets part of the other parties to such Contracts which constitutes or the Retained Liabilities would constitute (awith notice or lapse of time or both) a breach of or default under any of the benefits to any party of which will be increasedContracts, or cause or permit acceleration of any obligation of Company or any of Company's Subsidiaries thereunder, which individually or in the vesting aggregate would have a Material Adverse Effect. Except as set forth in Section 3.20(a) of the benefits to any party of which will be acceleratedCompany Disclosure Statement, by the occurrence no consent of any other party to the Contracts is required in connection with the execution, delivery and performance of this Agreement or in order for the Transactions or Contracts to remain in full force and effect following the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or Merger.
(b) which, as None of the date hereof, (i) Company nor any of Company's Subsidiaries is a “material contract” (as such term is defined in Item 601(b)(10) party to any agreement which materially limits the freedom of Regulation S-K of the SEC), (ii) involves aggregate expenditures in excess of $50,000 per annum, (iii) involves aggregate expenditures in excess of $50,000 and was not entered into in the ordinary course of business, (iv) contains “take or pay” provisions applicable to the Company or any Company Subsidiary, (v) contains any non-of Company's Subsidiaries to compete or exclusivity provisions with respect to in any line of business or geographic area with respect to the Company, any Company Subsidiary or any of the Company’s current or future affiliates, or which restricts the conduct of any line of business by the Company, any of the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct business, in each case in any respect, (vi) would reasonably be expected to prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions or (vii) is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded Asset. Each contract of the type described in this Section 3.13, whether or not set forth in Section 3.13 of the Company Disclosure Schedule, is referred to herein as a “Company Material Contract”. Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities is valid and binding on the Company and each Company Subsidiary party thereto and, to the Company’s knowledge, each other party thereto, as applicable, and in full force and effect, and the Company and each Company Subsidiary has performed all obligations required to be performed by it under each such Company Agreement and, to the Company’s knowledge, each other party to each such Company Agreement has performed all obligations required to be performed by it under such Company Agreement, except as would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. 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 Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities except for violations or defaults that would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. The Company has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all of the Company Material Contracts or other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities 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 or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contractsperson.
Appears in 1 contract
Sources: Merger Agreement (Aseco Corp)
Contracts. Except as filed as exhibits to the Company SEC Documents filed prior to the date hereof, or as disclosed in Section 3.13 Schedule 6.05 of the Company Elan Disclosure Schedule, there is no Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities Schedule sets forth a complete and correct list of: (a) any each EPI Contract that relates to the research, development, exploitation, licensing, use, importation, promotion, marketing, sale or distribution of the benefits to any party of which will be increasedProducts and provides for aggregate annual payments, or the vesting has a value in excess, of the benefits to any party $25,000; 23 Certain portions of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed this Exhibit have been omitted pursuant to Section 3.11) or a request for confidentiality. Such omitted portions, which are marked with brackets [ ] and an asterisk*, have been separately filed with the Commission. and (b) which, as of the date hereof, (i) is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC), (ii) involves aggregate expenditures in excess of $50,000 per annum, (iii) involves aggregate expenditures in excess of $50,000 and was not entered into in the ordinary course of business, (iv) contains “take or pay” provisions applicable to the Company or any Company Subsidiary, (v) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to the Company, any Company Subsidiary or any of the Company’s current or future affiliates, or which restricts the conduct of any line of business by the Company, any of the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct business, in each case in any respect, (vi) would reasonably be expected to prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions or (vii) is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded Asset. Each contract of the type described in this Section 3.13, whether or not set forth in Section 3.13 of the Company Disclosure Schedule, is referred to herein as a “Company Material Contract”. Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities is valid and binding on the Company and each Company Subsidiary party thereto and, to the Company’s knowledge, each other party theretoEPI Contract that, as applicable, and if such Contract were to be terminated or otherwise no longer in full force and effect, and the Company and each Company Subsidiary has performed all obligations required to be performed by it under each such Company Agreement and, to the Company’s knowledge, each other party to each such Company Agreement has performed all obligations required to be performed by it under such Company Agreement, except as would not, have or would not reasonably be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in to have a Company Material Adverse Effect. 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 Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities except for violations or defaults that would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. The Company EPI has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, Acquiror complete and correct copies of all such EPI Contracts and all Assumed Contracts; including all amendments, exhibits, appendices and annexes thereto. Except as would not have a Material Adverse Effect, (a) each of the Company Material Assumed Contracts is in full force and effect and constitutes a legal, valid and binding agreement of EPI or other Company Agreements its Affiliate, as applicable, and is enforceable in accordance with its terms by EPI or its Affiliate, as applicable, except as such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting generally the ADS Businessenforcement of creditors’ rights and (ii) the availability of equitable remedies (whether in a proceeding in equity or at law), the Acquired Assets or the Retained Liabilities required to be disclosed in Section 3.13 and (b) EPI-and its Affiliates have performed all of the Company Disclosure Scheduletheir obligations under each Assumed Contract, which are not filed as exhibits and neither EPI nor any of its Affiliates, nor, to the Company SEC Documents and the Company Material Contracts Knowledge of EPI, any third party to any Assumed Contract, has violated or other Company Agreements required to be disclosed in Section 3.13 breached, or declared or committed any Default under, any Assumed Contract. Neither EPI nor any of the Company Disclosure Schedule filed as exhibits its Affiliates have received any written notice or, to the Company SEC Documents are trueKnowledge of EPI, any other communication regarding any actual, alleged, possible or potential violation or breach of, or default under, any Assumed Contract. EPI has delivered to the Acquiror complete and correct copies of all Multi-Product Contracts, including all amendments, exhibits, appendices and annexes thereto; provided, that such contractscopies may have been redacted to prevent disclosure of information not related to any of the Products. Section 6.06.
Appears in 1 contract
Sources: Asset Purchase Agreement
Contracts. Except as filed as exhibits to the Company SEC Documents filed prior to the date hereof, or as disclosed in Section 3.13 of the Company Disclosure Schedule, there is no Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities (a) any Part 2.13(a) of the benefits Disclosure Schedule identifies each Material ALC Contract. ALC has delivered to any party the Purchaser accurate and complete copies of which will be increasedall Material ALC Contracts, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or including all amendments thereto.
(b) which, as of the date hereof, (i) is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC), (ii) involves aggregate expenditures in excess of $50,000 per annum, (iii) involves aggregate expenditures in excess of $50,000 and was not entered into in the ordinary course of business, (iv) contains “take or pay” provisions applicable to the Company or any Company Subsidiary, (v) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to the Company, any Company Subsidiary or any of the Company’s current or future affiliates, or which restricts the conduct of any line of business by the Company, any of the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct business, in each case in any respect, (vi) would reasonably be expected to prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions or (vii) is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded Asset. Each contract of the type described in this Section 3.13, whether or not set forth in Section 3.13 of the Company Disclosure Schedule, is referred to herein as a “Company Material Contract”. Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities ALC Contract is valid and binding on the Company and each Company Subsidiary party thereto and, to the Company’s knowledge, each other party thereto, as applicable, and in full force and effect, and is enforceable by ALC in accordance with its terms, and, without limiting the Company generality of the foregoing:
(i) to the Knowledge of the Major Stockholder, no Person has violated or breached, or declared or committed any default under, any Material ALC Contract;
(ii) to the Knowledge of the Major Stockholder, no event has occurred, and no circumstance or condition exists, that might (with or without notice or lapse of time) (A) result in a violation or breach of any of the provisions of any Material ALC Contract, (B) give any Person the right to declare a default or exercise any remedy under any Material ALC Contract, (C) give any Person the right to accelerate the maturity or performance of any material ALC Contract or (D) give any Person the right to cancel, terminate or modify any Material ALC Contract;
(iii) ALC has not received any notice or other communication (in writing or, to the Knowledge of the Major Stockholder, otherwise) regarding any actual, alleged, possible or potential violation or breach of, or default under, any Material ALC Contract; and
(iv) to the Knowledge of the Major Stockholder, ALC has not waived any material right under any Material ALC Contract.
(c) To the Knowledge of the Major Stockholder, each Company Subsidiary Person against which ALC has performed or may acquire any rights under any Material ALC Contract is solvent and is able to satisfy all of such Person’s current and future monetary obligations and other obligations and Liabilities to ALC.
(d) Except as set forth in Part 2.13(d) of the Disclosure Schedule:
(i) ALC has never guaranteed or otherwise agreed to cause, insure or become liable for, and ALC has never pledged any of its assets to secure, the performance or payment of any obligation or other Liability of any other Person; and
(ii) ALC has never been a party to or bound by (A) any joint venture agreement, partnership agreement, profit-sharing agreement, cost-sharing agreement, loss-sharing agreement or similar Contract, or (B) any Contract that creates or grants to any Person, or provides for the creation or grant of, any stock appreciation right, phantom stock right or similar right or interest.
(e) The performance of the ALC Contracts will not result in any violation of or failure to comply with any Legal Requirement.
(f) No Person is renegotiating, or, to the Knowledge of the Major Stockholder, intends to renegotiate, any material amount paid or payable to ALC under any Material ALC Contract or any other term or provision of any Material ALC Contract.
(g) The Contracts identified in Part 2.13(a) of the Disclosure Schedule collectively constitute all of the Material ALC Contracts necessary to enable ALC to conduct its business in the manner in which its business is currently being conducted.
(h) Part 2.13(h) of the Disclosure Schedule identifies and provides an accurate and complete description of each proposed Material ALC Contract as to which any bid, offer, written proposal, term sheet or similar document has been submitted or received by ALC within the past six months.
(i) Part 2.13(i) of the Disclosure Schedule provides an accurate description and breakdown of ALC’s backlog under ALC Contracts as of 2 business days prior to the Closing Date.
(j) Except as set forth in Part 2.13(j) of the Disclosure Schedule:
(i) ALC has complied with all Legal Requirements with respect to all Government Contracts and Government Bids. Without limiting the generality of the foregoing, ALC has not, in obtaining or performing any Government Contract, violated (A) the Truth in Negotiations Act of 1962, as amended, (B) the Service Contract Act of 1963, as amended, (C) the Contract Disputes Act of 1978, as amended, (D) the Office of Federal Procurement Policy Act, as amended, (E) FAR, DFAR or any applicable agency supplement thereto, (F) the Cost Accounting Standards, (G) the Defense Industrial Security Manual (DOD5220.22-M), (H) the Defense Industrial Security Regulation (DOD5220.22-R) or any related security regulations or (I) any other applicable procurement law or regulation or other Legal Requirement.
(ii) All facts set forth in or acknowledged by ALC in any certification, representation or disclosure statement submitted by ALC with respect to any Government Contract or Government Bid were current, accurate and complete as of the date of submission or as of such other date as required to be performed by it under each such Company Agreement the Government Contract and Government Bid. Neither ALC nor any current ALC Employee has been debarred or suspended from doing business with any Governmental Body, and, to the CompanyKnowledge of the Major Stockholder, no circumstances exist that would warrant the institution of debarment or suspension proceedings against ALC or any current ALC Employee.
(iii) ALC has not received any determination of noncompliance, entered into any consent order or undertaken any internal investigation relating directly or indirectly to any Government Contract or Government Bid. ALC has not made any disclosure to any Governmental Body pursuant to any voluntary disclosure agreement. ALC is not undergoing and has not undergone any audit, and to the Knowledge of the Major Stockholder there is no basis for any impending audit, arising under or relating to any Government Contract (other than normal routine audits conducted by ALC in the Ordinary Course of Business or in order to prepare audited financial statements).
(iv) To the Knowledge of the Major Stockholder, all bills submitted to customers by ALC under any Government Contract are true and accurate. No Governmental Body, and no prime contractor or higher-tier subcontractor of any Governmental Body, has withheld or set off, or threatened in a writing provided to ALC to withhold or set off, any amount due to ALC under any Government Contract. There is not and has not been any (A) outstanding material claim against ALC by, or material dispute involving ALC with, any prime contractor, subcontractor, vendor or other Person arising under or relating to the award or performance of any Government Contract, (B) fact known by ALC or any current ALC Employee upon which any such claim could reasonably be expected to be based or which may give rise to any such dispute, or (C) final decision of any Governmental Body against ALC that could reasonably be expected to have a material adverse effect on ALC.
(v) No payment has been made by ALC or, to the Knowledge of the Major Stockholder, by any Person acting on the behalf of ALC to any Person (other than to any bona fide employee or agent (as defined in subpart 3.4 of the FAR) of ALC) which is or was contingent upon the award of any Government Contract or which would otherwise be in violation of any applicable procurement law or regulation or any other Legal Requirement.
(vi) ALC’s knowledgecost accounting system is in compliance with applicable regulations and other applicable Legal Requirements, and has not been determined by any Governmental Body not to be in compliance with any Legal Requirement. No direct or indirect costs incurred by ALC have been questioned or disallowed, as a result of a finding or determination of any kind provided to ALC by any Governmental Body. ALC has reached agreements with the cognizant government representatives approving and “closing” all indirect costs charged to Government Contracts for 2001, 2002, 2003, 2004 and 2005, and those years are closed. The responsible government representatives have agreed with ALC on the “forward pricing rates” that ALC is charging on cost-type Government Contracts and including in Government Bids.
(vii) ALC has complied with all applicable regulations and other Legal Requirements and with all applicable contractual requirements relating to the placement of legends or restrictive markings on technical data, computer software and other Intellectual Property. In each case in which ALC has delivered or otherwise provided any technical data, computer software or Intellectual Property to any Governmental Body in connection with any Government Contract, ALC has marked such technical data, computer software or Intellectual Property with all markings and legends (including any “restricted rights” legend and any “government purpose license rights” legend) necessary (under the FAR or other party applicable Legal Requirements) to each ensure that no Governmental Body or other Person is able to acquire any unlimited rights with respect to such Company Agreement technical data, computer software or Intellectual Property.
(viii) ALC has performed all obligations not and will not be required to be performed by it under such Company Agreement, except as would notmake any filing with or give any notice to, or would not be reasonably expected toto obtain any Consent from, individually any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the aggregateexecution, (1) prohibit or materially delay the consummation delivery of the Offer, the Merger performance of this Agreement or any of the other TransactionsTransactional Agreements referred to in this Agreement, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3B) result in a Company Material Adverse Effect. 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 Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities except for violations or defaults that would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. The Company has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all of the Company Material Contracts or other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities 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 or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contracts.
Appears in 1 contract
Contracts. Except as filed as exhibits to the Company Parent SEC Documents filed Filings prior to the date hereofof this Agreement, or as disclosed in Section 3.13 4.12 of the Company Parent Disclosure Schedule, there none of Parent or any of its Subsidiaries is no Company Agreement a party to or bound by any Contract ((other than Parent Benefit Plans, Contracts for labor and employment matters set forth in Section 4.11 of the Parent Disclosure Schedule and Contracts relating to insurance policies set forth in Section 4.18 of the ADS Business, the Acquired Assets or the Retained Liabilities Parent Disclosure Schedule)) that (a) any of the benefits to any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or (b) which, as of the date hereof, (i) is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC), (iib) involves aggregate annual expenditures in excess of $50,000 per annumUS$1,000,000 and is not cancelable (without penalty, cost or other liability) within 60 days, (iii) involves aggregate expenditures in excess of $50,000 and was not entered into in the ordinary course of business, (ivc) contains “take or pay” provisions applicable to covenants expressly limiting in any material respect the Company freedom of Parent or any Company Subsidiary, (v) contains of its Subsidiaries to compete with any non-compete person in a product line or exclusivity provisions with respect to any line of business or geographic area with respect to the Company, any Company Subsidiary or any of the Company’s current or future affiliates, or which restricts the conduct of any line of business by the Company, any of the Company’s current or future affiliates, any Company Subsidiary or operate in any geographic area in or (d) which the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct business, in each case in any respect, (vi) would reasonably be expected to prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions or (vii) is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded Assettransactions contemplated by this Agreement. Each contract Contract of the type described in this Section 3.134.12, whether or not set forth in Section 3.13 4.12 of the Company Parent Disclosure Schedule, is referred to herein as a “Company Parent Material Contract”.” A true and complete copy of each Parent Material Contract has been delivered or made available to the Stockholder. Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities Parent Material Contract is valid and binding on the Company Parent and each Company Subsidiary of its Subsidiaries party thereto and, to the CompanyParent’s knowledge, each other party thereto, as applicable, and in full force and effecteffect subject to the Remedies Exception, and the Company Parent and each Company Subsidiary of its Subsidiaries has in all respects performed all obligations required to be performed by it to the date hereof under each such Company Agreement Parent Material Contract and, to the CompanyParent’s knowledge, each other party to each such Company Agreement Parent Material Contract has in all respects performed all obligations required to be performed by it under such Company AgreementParent Material Contract, except as would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in reasonably be expected to have a Company Material Adverse Effect. None of the Company Parent or any Company Subsidiary knows of, or of its Subsidiaries has received any written notice of, 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 Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities except for violations or defaults that would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Parent Material Adverse Effect. The Company has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all of the Company Material Contracts or other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities 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 or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contractsContract.
Appears in 1 contract
Contracts. Except as filed as exhibits to the Company SEC Documents filed prior to the date hereof, or as disclosed in Section 3.13 of the Company Disclosure Schedule, there is no Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities (a) any Attached to this Agreement as Schedule 4.9
(a) is a list of the benefits to any each Material Contract that ▇▇▇ is a party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or controls.
(b) whichExcept as to matters of which Buyer has Constructive Knowledge, as of the date hereof, each Material Contract (i) is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC), (ii) involves aggregate expenditures in excess of $50,000 per annum, (iii) involves aggregate expenditures in excess of $50,000 and was not entered into in the ordinary course of business, (iv) contains “take or pay” provisions applicable to the Company or any Company Subsidiary, (v) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to the Company, any Company Subsidiary or any of the Company’s current or future affiliates, or which restricts the conduct of any line of business by the Company, any of the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct business, in each case in any respect, (vi) would reasonably be expected to prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions or (vii) is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded Asset. Each contract of the type described in this Section 3.13, whether or not set forth in Section 3.13 of the Company Disclosure Schedule, is referred to herein as a “Company Material Contract”. Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities is valid and binding on each of the Company and each Company Subsidiary party parties thereto and, to the Company’s knowledge, each other party thereto, as applicable, in accordance with its terms and in full force and effecteffect and (ii) was made in the normal and ordinary course of the Business.
(c) Except as to matters of which Buyer has Constructive Knowledge, and the Company and each Company Subsidiary has performed all obligations required to be performed by it under each such Company Agreement and, to the Company’s knowledge, each other no party to each any Material Contract has (i) provided any notice to ▇▇▇, BMI or any Subsidiary of its intent to terminate or withdraw its participation in any such Company Agreement has performed all obligations required Material Contract or (ii) threatened to be performed by it under terminate or withdraw from participation in any such Company Agreement, except as would not, or would not be reasonably expected to, individually or in Material Contract. To the aggregateKnowledge of ▇▇▇, (1A) prohibit no party to any Material Contract to which BMI or materially delay the consummation of the Offer, the Merger any Subsidiary or any of the other Transactions, (2) their respective properties is party or is otherwise prevent bound or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result subject is in a Company Material Adverse Effect. None of the Company or any Company Subsidiary knows of, or has received notice of, any violation breach or default under any provision thereof, and (B) no event or any condition which has occurred, whether with or without the passage of time or the giving of notice notice, or both, that would cause constitute such a violation breach or default.
(d) Except as set forth on Schedule 4.2 and except for matters which Buyer has Constructive Knowledge, no Consent (other than Consents associated with the Real Estate Leases) of any party to any Material Contract to which BMI or default underany Subsidiary or any of their respective properties is party or is otherwise bound or subject is required in connection with the transactions contemplated by this Agreement.
(e) Except as set forth on Schedule 4.9(e), none of BMI nor the Subsidiaries are party to any Company Agreement relating Contract with ▇▇▇, or its subsidiaries or Affiliates (excluding BMI and the Subsidiaries).
(f) Except as to the ADS Businessmatters of which Buyer has Constructive Knowledge, the Acquired Assets or execution, delivery and performance of this Agreement and the Retained Liabilities except for violations or defaults that would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation of the Offertransactions contemplated hereby will not (i) result in or give to any Person any right of termination, the Merger non-renewal, cancellation, withdrawal, acceleration or modification in or with respect to any Material Contract to which BMI or any Subsidiary or any of the other Transactionstheir respective properties is party or is otherwise bound or subject, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3ii) result in a Company or give to any Person any additional rights or entitlement to increased, additional, accelerated or guaranteed payments under any such Material Contract or (iii) result in the creation or imposition of any Adverse Effect. The Company has delivered to Claim upon BMI or any Subsidiary or any of their respective assets under the Purchaser or provided to the Purchaser for review, prior to the execution terms of this Agreement, true, complete and correct copies of all of the Company any such Material Contracts or other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities 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 or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contractsContract.
Appears in 1 contract
Sources: Purchase Agreement (Deb Shops Inc)
Contracts. Except as filed as exhibits to the Company SEC Documents filed prior to the date hereof, or as disclosed in (i) Section 3.13 3.12(d)(i) of the Company Disclosure Schedule, there is no Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities (a) any of the benefits to any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or (b) whichSchedule lists, as of the date hereofAgreement Date, (i) all licenses or Contracts to which the Company or any of its Subsidiaries is a “party or by which the Company or any of its Subsidiaries is bound pursuant to which any material contract” (as such term Intellectual Property Right or Technology is defined in Item 601(b)(10) of Regulation S-K of the SEC), (ii) involves aggregate expenditures in excess of $50,000 per annum, (iii) involves aggregate expenditures in excess of $50,000 and was not entered into in the ordinary course of business, (iv) contains “take or pay” provisions applicable licensed to the Company or any Company Subsidiary, of its Subsidiaries (vother than (A) contains any non-compete exclusive software licenses or exclusivity provisions software-as-a-service agreements with respect to Shrink-Wrap Software and Open Source Materials, (B) nondisclosure agreements entered in the Ordinary Course of Business, and (C) licenses of Intellectual Property Rights that are substantially similar in all material respects to those contained in any line Standard Form Agreement), (collectively “Inbound Licenses”).
(ii) Section 3.12(d)(ii) of business the Disclosure Schedule lists, as of the Agreement Date, each license or geographic area with respect Contract to which the CompanyCompany or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound pursuant to which the Company or any of its Subsidiaries has granted to any Person any license under, agreed not to assert or enforce, or in which any Person has otherwise received or acquired any right (whether or not currently exercisable) or interest in, any Company Subsidiary or any Owned IP (other than (A) nondisclosure agreements entered in the Ordinary Course of the Company’s current or future affiliates, or which restricts the conduct of any line of business by the Company, any of the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct business, in each case in any respect, Business; (viB) would reasonably be expected nonexclusive licenses to prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions or (vii) is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded Asset. Each contract of the type described in this Section 3.13, whether or not set forth in Section 3.13 of provide the Company Disclosure Schedule, is referred to herein as a “Company Material Contract”. Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities is valid and binding on the Company and each Company Subsidiary party thereto and, Products to the Company’s knowledgeor any Subsidiary’s customers entered in the Ordinary Course of Business; (C) access or licenses to Company IP granted to Company employees, each other party thereto, as applicableconsultants, and in full force independent contractors pursuant to Personnel Agreements; (D) incidental trademark licenses; and effect, and the Company and each Company Subsidiary has performed all obligations required to be performed by it under each such Company Agreement and, (E) non-exclusive licenses granted to the Company’s knowledge, each other party to each such Company Agreement has performed all obligations required to be performed by it under such Company Agreement, except as would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay the consummation of the Offer, the Merger or any Subsidiary’s service providers and vendors for the sole purpose of providing services to the other TransactionsCompany or a Subsidiary) (collectively, “Outbound Licenses”).
(2iii) otherwise prevent or materially delay performance The Company has made available to Parent a correct and complete copy of each standard form of Contract used by the Company of and its Subsidiaries at any time in connection with its business, including (as applicable) each of its material obligations under this Agreement unmodified standard forms of: (A) employee agreement containing any arbitration agreement and assignment or (3) result in a Company Material Adverse Effect. None license of the Company Intellectual Property Rights or any Company Subsidiary knows of, confidentiality provision; (B) consulting or has received notice of, independent contractor agreement containing any violation assignment or default under (license of Intellectual Property Rights or any condition which with the passage of time confidentiality provision; (C) confidentiality or the giving of notice would cause such a violation nondisclosure agreement; and (D) customer contract providing for non-exclusive use of or default under) any Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities except for violations or defaults that would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. The Company has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all of the Company Material Contracts or other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities required to be disclosed in Section 3.13 of the Company Disclosure Schedule, which are not filed as exhibits access to the Company SEC Documents and Products (collectively, the Company Material Contracts or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contracts“Standard Form Agreements”).
Appears in 1 contract
Contracts. Except as filed as exhibits to Other than contracts with C&C or the Company SEC Documents filed prior to the date hereof, or ▇▇▇▇▇ Subsidiaries and except as disclosed in the AFN SEC Documents or as set forth in Section 3.13 3.9 of the Company AFN Disclosure Schedule, there is no Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities (a) any of the benefits to any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or (b) which, as of the date hereof, (i) is there are no contracts that are material to the business, properties, financial condition or results of operations of AFN and the AFN Subsidiaries taken as a “material contract” (as such term is defined in Item 601(b)(10) whole. Complete and correct copies of Regulation S-K all of the SEC), contracts listed as exhibits to AFN’s most recent report on Form 10-Q filed with the SEC before the date of this Agreement have before the date of this Agreement been made available to C&C (ii) involves aggregate expenditures in excess of $50,000 per annum, (iii) involves aggregate expenditures in excess of $50,000 and was not entered into in the ordinary course of business, (iv) contains “take or pay” provisions applicable to the Company or any Company Subsidiary, (v) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to the Company, any Company Subsidiary or any of the Company’s current or future affiliates, or which restricts the conduct of any line of business by the Company, any of the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct business, in each case in any respect, (vi) would reasonably be expected to prohibit or materially delay the consummation of the Offercollectively, the Merger or any of the other Transactions or (vii) is necessary for the conduct of the ADS Business “AFN Material Contracts”). Except as currently conducted but constitutes an Excluded Asset. Each contract of the type described in this Section 3.13, whether or not set forth in Section 3.13 3.9 of the Company AFN Disclosure Schedule, is referred to herein as a “Company Material Contract”. Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities is valid and binding on the Company and each Company Subsidiary party thereto and, to the Company’s knowledge, each other party thereto, as applicable, and in full force and effect, and the Company and each Company Subsidiary has performed all obligations required to be performed by it under each such Company Agreement and, to the Company’s knowledge, each other party to each such Company Agreement has performed all obligations required to be performed by it under such Company Agreement, except as would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay the consummation of the Offer, the Merger or neither AFN nor any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. None of the Company or any Company Subsidiary knows ofAFN Subsidiaries, or has received notice ofto the knowledge of AFN, any other party, is in violation or breach of or in default under (or nor does there exist any condition which with upon the passage of time or the giving of notice or both would cause such result in a violation of or breach of, or constitute a default under, or give rise to any right of termination, amendment, cancellation, acceleration or loss of benefits, or result in the creation of any Encumbrance upon any of the properties or assets of AFN or any of the AFN Subsidiaries) under any Company Agreement relating contract to the ADS Businesswhich it is a party or by which it or any of its properties or assets is bound, the Acquired Assets or the Retained Liabilities except for violations violations, breaches or defaults that would notnot have a Material Adverse Effect on AFN, nor will the consummation of the Combination result in any third party having any right of termination, amendment, acceleration, or cancellation of or loss or change in a benefit under any contract to which it is a party or by which it or any of its properties or assets is bound, except for such terminations, amendments, accelerations, cancellations, losses or changes in a benefit that would not be reasonably expected tonot, individually or in the aggregateaggregate reasonably be expected to have a Material Adverse Effect on AFN. No other party to any such contract has, (1) prohibit or materially delay consummation to the knowledge of the OfferAFN, the Merger alleged that AFN or any of the other TransactionsAFN Subsidiaries is in violation or breach of or in default under any such contract or has notified AFN or any AFN Subsidiary of an intention to modify any material terms of or not to renew any such contract, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in except where such events would not have a Company Material Adverse Effect. The Company has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all of the Company Material Contracts or other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities 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 or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contractsEffect on AFN.
Appears in 1 contract
Contracts. (a) Except as for this Agreement and the Contracts disclosed in and filed as exhibits to the Filed Company SEC Documents filed prior to the date hereofDocuments, or as disclosed in Section 3.13 4.13(a) of the Company Disclosure ScheduleLetter sets forth a true and complete list, there is no and the Company Agreement relating has made available to the ADS BusinessParent true and complete copies, the Acquired Assets or the Retained Liabilities (a) any of the benefits to any party of following Contracts, in each case which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or (b) which, are in effect as of the date hereof, Agreement Date:
(i) is each Contract that (A) would be required to be filed by the Company as a “material contract” (as such term is defined in pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or (B) is of the SECtype that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act;
(ii) each non-competition or other Contract to which the Company or any Company Subsidiary is a party that (A) materially restricts the ability of the Company or its Affiliates, including following the Offer Closing Time, Parent and its Affiliates (other than in the case of Parent and its Affiliates, due to the operation of Contracts to which Parent or any of its Affiliates is a party prior to the Offer Closing Time) following the Merger Closing, to compete in any business or with any Person in any geographical area, (B) requires the Company or its Affiliates, including following the Offer Closing Time, Parent and its Affiliates (other than in the case of Parent and its Affiliates, due to the operation of Contracts to which Parent or any of its Affiliates is a party prior to the Offer Closing Time) following the Merger Closing, to conduct any business on a “most favored nations” basis with any third party in any material respect, (C) grants a third party development (other than solely for or on behalf of the Company or its Affiliates), marketing or distribution rights with respect to any Company Product, (D) requires the Company or any Company Subsidiary to purchase a minimum quantity of goods or supplies relating to any Company Product in favor of any third party, or (E) obligates the Company or any of its Affiliates to purchase or otherwise obtain any product or service exclusively from any third party or sell any product or service exclusively to any third party;
(iii) each Contract under which the Company or any Company Subsidiary (A) licenses, is assigned, grants, or otherwise receives or is conveyed, any right in (including a right to receive a license or be free from suit) any Intellectual Property from, or any material Company Intellectual Property owned by the Company or any Company Subsidiary to, any third party or (B) develops any Intellectual Property, itself or through a third party, except, in each case, for (1) off-the-shelf, commercially available and/or “shrink-wrap” software or computer services agreements (including agreements under which such software is delivered as a service), (ii2) involves aggregate expenditures in excess of $50,000 per annummaterials transfer agreements, (iii) involves aggregate expenditures in excess of $50,000 clinical trial agreements, non-disclosure agreements and was not services or vendor agreements entered into in the ordinary course of business, in each case, that do not transfer ownership of material Intellectual Property to any third party or contain any grant of rights to any third party to use material Intellectual Property for the research, supply, manufacturing, development or commercialization of products (ivother than on behalf of Company or any Company Subsidiary), (3) contains “take Contracts granting to the Company incidental and not material rights in trademarks or pay” provisions applicable other Intellectual Property, (4) Contracts granting service providers of the Company a non-exclusive license to rights in connection with such service provider’s provision of services to the Company or any Company Subsidiary, and (5) invention assignment, consulting agreements and employment agreements that contain assignments of Intellectual Property to the Company or any Company Subsidiary (collectively, clauses (1) to (5) “Standard IP Contracts”);
(iv) each Contract to which the Company or any Company Subsidiary is a party with any academic institution or Governmental Entity that provides for the provision of funding to the Company or any Company Subsidiary for research and development activities involving the creation of any material Intellectual Property;
(v) contains other than any nonCompany Benefit Agreement or Company Benefit Plan, and any Contract that can be terminated for convenience on notice by the Company without payment, each Contract to which the Company or any Company Subsidiary is a party that provides for recurring annual minimum payments or receipts (other than milestone, royalty or similar payments or other contingent payments) in excess of $50,000;
(vi) each Contract to which the Company or any Company Subsidiary is a party relating to indebtedness for borrowed money or any financial guaranty;
(vii) each Contract to which the Company or any Company Subsidiary is a party involving in excess of $50,000 that provides for the acquisition or disposition of any assets or any businesses (whether by merger, sale of stock, sale of assets or otherwise) that (A) has not yet been consummated or (B) has outstanding any purchase price adjustment, “earn-compete out,” material payment or exclusivity provisions similar obligations on the part of the Company or any Company Subsidiary, in each case, excluding any Contract required to be listed in Section 4.13(a)(iii) or Section 4.13(a)(viii) of the Company Disclosure Letter;
(viii) each Contract to which the Company or any Company Subsidiary is a party pursuant to which the Company or such Company Subsidiary has continuing milestone or similar contingent payments obligations, including upon the achievement of regulatory or commercial milestones or payment of royalties or other amounts calculated based upon any revenues or income of the Company, in each case, that could result in payments in excess of $50,000, and in each case, excluding indemnification and performance guarantee obligations provided for in the ordinary course of business and any Contracts required to be listed in Section 4.13(a)(iii) of the Company Disclosure Letter;
(ix) each Contract to which the Company or any Company Subsidiary is a party that obligates the Company or such Company Subsidiary to make any capital commitment or capital expenditure in an amount in excess of $50,000 after the Agreement Date;
(x) each Contract between the Company or any Company Subsidiary and a contract research organization (other than, for the avoidance of doubt, any individual clinical trial site) providing for services to the Company or any Company Subsidiary involving management of clinical trials of the Company Products;
(xi) each Contract to which the Company or any Company Subsidiary is a party, other than with respect to any line of business partnership that is wholly owned by the Company or geographic area with respect any Company Subsidiary, that relates to the Companyformation, creation, operation, management or control of any partnership, collaboration, joint venture or similar arrangement, in each case, pursuant to which the Company or any Company Subsidiary has an obligation (contingent or otherwise) to make an investment in, extension of credit to or otherwise result in payments in excess of $50,000 to any of the Company’s current or future affiliates, or which restricts the conduct of any line of business by the Company, any of the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct businessPerson, in each case in case, excluding any respect, (vi) would reasonably Contracts required to be expected to prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions or (vii) is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded Asset. Each contract of the type described in this Section 3.13, whether or not set forth listed in Section 3.13 4.13(a)(viii) of the Company Disclosure ScheduleLetter;
(xii) each Contract between the Company or any Company Subsidiary and any Governmental Entity, except for clinical study agreements, sponsored research agreements, materials transfer agreements and non-disclosure agreements entered into in the ordinary course of business;
(xiii) each stockholders’, investors rights’, registration rights or similar Contract to which the Company is a party (excluding Contracts governing Company Stock Options or Company PSUs);
(xiv) each Contract (including all amendments, extensions and renewals with respect thereto) pursuant to which the Company or any Company Subsidiary leases or subleases any material real property. Each such Contract described in clauses (i) through (xiv) is referred to herein in this Agreement as a “Company Material Contract.”.
(b) Each Company Agreement relating to of the ADS BusinessMaterial Contracts is valid, binding and enforceable (except as such enforceability may be limited by the Acquired Assets or the Retained Liabilities is valid Bankruptcy, Equity and binding Indemnity Exception) on the Company and each or the applicable Company Subsidiary party thereto Subsidiary, as the case may be, and, to the knowledge of the Company’s knowledge, each other party thereto, as applicable, and is in full force and effect, and the Company and each Company Subsidiary has performed all obligations required except for such failures to be performed by it under each such Company Agreement andvalid, to the Company’s knowledge, each other party to each such Company Agreement has performed all obligations required binding or enforceable or to be performed by it under such Company Agreementin full force and effect as have not had, except as would not, or and would not reasonably be reasonably expected toto have, individually or in the aggregate, (1) prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. None of There is no material default under any Material Contract by the Company or any Company Subsidiary knows ofor, or has received notice ofto the knowledge of the Company, any violation or default under (or any condition which other party thereto, and no event has occurred that with the passage lapse of time or the giving of notice or both would cause such constitute a violation of or material default under) any Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities except for violations or defaults that would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance thereunder by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. The Company has delivered or, to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all knowledge of the Company Material Contracts or Company, any other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities 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 or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contractsparty thereto.
Appears in 1 contract
Contracts. Except as filed as exhibits to the Company SEC Documents Filings filed prior to the date hereofof this Agreement, or as disclosed in Section 3.13 3.12 of the Company Disclosure ScheduleLetter, there neither the Company nor any Company Subsidiary is no Company Agreement relating a party to the ADS Business, the Acquired Assets or the Retained Liabilities (a) bound by any of the benefits to any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or (b) which, as of the date hereof, Contract that (i) is a “"material contract” " (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC), (ii) involves aggregate expenditures in excess relates to the co-promotion or distribution of $50,000 per annumEnbrel, the manufacturing and supply by third parties of Enbrel, the out-license of Company Intellectual Property relating to Enbrel to third parties pursuant to which the Company currently receives royalties, or the in-license of intellectual property relating to Enbrel from third parties pursuant to which the Company currently pays royalties or (iii) involves aggregate expenditures in excess of $50,000 and was not entered into in the ordinary course of business, (iv) contains “take limits or pay” provisions applicable to otherwise restricts the Company or any Company SubsidiarySubsidiary or that would, after the Effective Time, limit or restrict Parent or any of its Subsidiaries (vincluding the Surviving Corporation and its Subsidiaries) contains or any non-compete successor thereto, from engaging or exclusivity provisions with respect to competing in any line of business or in any geographic area with respect area, which Contracts would be material to Parent and its Subsidiaries (determined after giving effect to the Company, any Company Subsidiary or any of the Company’s current or future affiliates, or which restricts the conduct of any line of business by the Company, any of the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct business, in each case in any respect, (vi) would reasonably be expected to prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions or (vii) is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded AssetMerger). Each contract Contract of the type described in this Section 3.133.12, whether or not set forth in Section 3.13 3.12 of the Company Disclosure ScheduleLetter, is referred to herein as a “"Company Material Contract”. ." Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities Material Contract is valid and binding on the Company and each or a Company Subsidiary party thereto and, to the Company’s knowledge's Knowledge, each other party thereto, as applicable, and is in full force and effect, and the Company and each of the Company Subsidiary has Subsidiaries have performed in all material respects all obligations required to be performed by it them to the date hereof under each such Company Agreement Material Contract and, to the Company’s knowledge's Knowledge, each other party to each such Company Agreement Material Contract has performed in all material respects all obligations required to be performed by it under such Company AgreementMaterial Contract, except except, in each case, as would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in reasonably be expected to have a Company Material Adverse Effect. None of Neither the Company or nor 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 Agreement relating Material Contract or any other Contract to the ADS Businesswhich it is a party or by which it or any of its properties or assets is bound, the Acquired Assets or the Retained Liabilities except for violations or defaults that would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in reasonably be expected to have a Company Material Adverse Effect. The Company has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all of the Company Material Contracts or other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities 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 or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contracts.
Appears in 1 contract
Sources: Merger Agreement (Immunex Corp /De/)
Contracts. (a) Except as for Contracts filed in unredacted form as exhibits to the Filed SEC Reports, Section 3.17 of the Disclosure Schedule sets forth a true and complete list of:
(i) all Contracts to which the Company SEC Documents filed or any of its affiliates is a party, or that purport to be binding upon the Company or any of its affiliates that contain a covenant (a "Restrictive Covenant") 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 and its subsidiaries) to compete in any business that is material to the Company and its subsidiaries, taken as a whole, or Parent and its subsidiaries, taken as a whole, 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 60 days or less;
(ii) all material joint venture and partnership agreements (excluding information technology contracts); and
(iii) as of the date hereof, all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts pursuant to which any indebtedness of the Company or any of its subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of its subsidiaries of any indebtedness of another person (except for such indebtedness or guarantees of indebtedness the aggregate principal amount of which does not exceed $5 million). None of the Company or any of its subsidiaries is in violation of or default (with or without notice or lapse of time or both) under, or has waived or failed to enforce any rights or benefits under, any Contract to which it is a party or by which it or any of its properties or assets is bound, and, to the knowledge of the Company or such subsidiary, no other party to any of its Contracts is in violation or default (with or without notice or lapse of time or both) under, or has waived or failed to enforce any rights or benefits under, and there has occurred no event giving to others any right of termination, amendment or cancellation 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 not be expected to result in a Material Adverse Effect. Except as identified in writing by the Company to Parent prior to the date hereofof this Agreement, the Company has delivered or as disclosed in made available to Parent or its representatives true and complete copies of all Contracts listed on Section 3.13 3.17 of the Company Disclosure Schedule, there is no Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities (a) any of the benefits to any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or .
(b) whichThe Company is and has been in substantial compliance since November 1, 1999, with the Amended and Restated Intercompany Services Agreement dated November 1, 1999 between the Company and NMG (the "Intercompany Services Agreement") and, as of the date hereof, (i) is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K there are no suits or claims pending, or to the knowledge of the SEC)Company threatened against it, by NMG arising out the Intercompany Services Agreement.
(iic) involves aggregate expenditures in excess The Lease Resolution Agreement dated as of $50,000 per annumOctober 27, (iii) involves aggregate expenditures in excess of $50,000 and was not entered into in the ordinary course of business, (iv) contains “take or pay” provisions applicable to the Company or any Company Subsidiary, (v) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to 2000 among the Company, any Rich▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇ Nanc▇ ▇▇▇▇▇ ▇▇▇ks (the "Family Agreement") has been duly 26 20 and validly authorized, executed and delivered by the Company Subsidiary or any and constitutes and will constitute, as at the date of the Company’s current or future affiliates, or which restricts the conduct of any line of business by the Company, any expiration of the Company’s current or future affiliatesOffer and the Effective Time a legal, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct business, in each case in any respect, (vi) would reasonably be expected to prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions or (vii) is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded Asset. Each contract of the type described in this Section 3.13, whether or not set forth in Section 3.13 of the Company Disclosure Schedule, is referred to herein as a “Company Material Contract”. Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities is valid and binding on obligation of the Company parties thereto and each Company Subsidiary party is enforceable and will be enforceable, as of the date of the expiration of the Offer and the Effective Time, against the parties thereto andin accordance with its terms, subject to the Company’s knowledgeeffects of bankruptcy, each insolvency, fraudulent conveyance, reorganization, moratorium and other party thereto, as applicable, and in full force and effect, and the Company and each Company Subsidiary has performed all obligations required to be performed by it under each such Company Agreement and, to the Company’s knowledge, each other party to each such Company Agreement has performed all obligations required to be performed by it under such Company Agreement, except as would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. 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 Agreement similar laws relating to the ADS Business, the Acquired Assets or the Retained Liabilities except for violations or defaults that would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. The Company has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all of the Company Material Contracts or other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities 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 or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contractsaffecting creditors' rights generally.
Appears in 1 contract
Sources: Merger Agreement (Reh Mergersub Inc)
Contracts. Except as filed as exhibits to the Company SEC Documents filed prior to the date hereof, or as disclosed in Section 3.13 of the Company Disclosure Schedule, there is no Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities (a) any of the benefits to any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or (b) which, as As of the date hereofof this Agreement, (i) neither Biovail nor any Biovail Subsidiary is a party to any Contract required to be filed by Biovail as a “material contract” (as such term is defined in pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act (a “Filed Biovail Contract”) that has not been so filed.
(b) Section 3.14(b) of the SECBiovail Disclosure Letter sets forth, as of the date of this Agreement, a true and complete list of (i) non-competition Contracts or any other Contract containing terms that expressly (A) limit or otherwise restrict Biovail or the Biovail Subsidiaries or (B) to the Knowledge of Biovail, would, after the Effective Time, by its terms expressly limit or otherwise restrict the Combined Company from, in the case of either (A) or (B), (ii) involves aggregate expenditures engaging or competing in excess of $50,000 per annum, (iii) involves aggregate expenditures in excess of $50,000 and was not entered into in the ordinary course of business, (iv) contains “take or pay” provisions applicable to the Company or any Company Subsidiary, (v) contains any non-compete or exclusivity provisions with respect to any line of business or in any geographic area with respect or from developing or commercializing any compounds, any therapeutic area, class of drugs or mechanism of action, in a manner that would be reasonably likely to be material, in the case of (A), to Biovail and the Biovail Subsidiaries, taken as a whole, or in the case of (B), to the Combined Company, taken as a whole, (ii) each loan and credit agreement, note, debenture, bond, indenture or other similar agreement pursuant to which any Company Subsidiary Indebtedness of Biovail or any of the Company’s current Biovail Subsidiaries is outstanding or future affiliatesmay be incurred, other than any such agreement between or among Biovail and the wholly owned Biovail Subsidiaries, and (iii) each partnership, joint venture or similar agreement or understanding to which restricts the conduct of any line of business by the Company, any of the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary Biovail or any of the Company’s current Biovail Subsidiaries is a party relating to the formation, creation, operation, management or future affiliates may conduct businesscontrol of any partnership or joint venture material to Biovail and the Biovail Subsidiaries, in each case in any respect, (vi) would reasonably be expected to prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions or (vii) is necessary for the conduct of the ADS Business taken as currently conducted but constitutes an Excluded Asseta whole. Each contract agreement, understanding or undertaking of the type described in this Section 3.13, whether or not set forth in Section 3.13 of the Company Disclosure Schedule, 3.14(b) and each Filed Biovail Contract is referred to herein as a “Company Biovail Material Contract”. Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities is valid and binding on the Company and each Company Subsidiary party thereto and, to the Company’s knowledge, each other party thereto, as applicable, and in full force and effect, and the Company and each Company Subsidiary has performed all obligations required to be performed by it under each such Company Agreement and, to the Company’s knowledge, each other party to each such Company Agreement has performed all obligations required to be performed by it under such Company Agreement, except as would not, or would not be reasonably expected to.
(c) Except for matters which, individually or in the aggregate, have not had and would not reasonably be expected to have a Biovail Material Adverse Effect, (1i) prohibit each Biovail Material Contract (including, for purposes of this Section 3.14(c), any Contract entered into after the date of this Agreement that would have been a Biovail Material Contract if such Contract existed on the date of this Agreement) is a valid, binding and legally enforceable obligation of Biovail or materially delay the consummation one of the OfferBiovail Subsidiaries, as the Merger case may be, and, to the Knowledge of Biovail, 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 Biovail Material Contract is in full force and effect and (iii) none of Biovail or any of the other Transactions, Biovail Subsidiaries is (2) otherwise prevent with or materially delay performance by the Company without notice or lapse of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. None of the Company or any Company Subsidiary knows oftime, or has received notice of, any violation both) in breach or default under any such Biovail Material Contract and, to the Knowledge of Biovail, no other party to any such Biovail Material Contract is (with or any condition which with the passage without notice or lapse of time time, or the giving of notice would cause such a violation of both) in breach or default under) any Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities except for violations or defaults that would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. The Company has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all of the Company Material Contracts or other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities 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 or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contractsthereunder.
Appears in 1 contract
Sources: Merger Agreement (BIOVAIL Corp)
Contracts. (i) Except as filed as exhibits to disclosed in the Filed Company SEC Documents filed prior and except with respect to the date hereof, or as disclosed in Section 3.13 of the Company Disclosure Schedule, there is no Company Agreement licenses and other agreements relating to intellectual property, which are the ADS Business, the Acquired Assets or the Retained Liabilities (a) any subject of the benefits to any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or (b) which3.01(p), as of the date hereof, (i) neither the Company nor any of its Subsidiaries is a “material contract” (as such term party to, and none of their respective properties or other assets is defined in Item 601(b)(10) of Regulation S-K of the SEC), (ii) involves aggregate expenditures in excess of $50,000 per annum, (iii) involves aggregate expenditures in excess of $50,000 and was not entered into in the ordinary course of business, (iv) contains “take or pay” provisions applicable to the Company or any Company Subsidiary, (v) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to the Companysubject to, any Company Subsidiary Contract that is of a nature required to be filed as an exhibit to a report or any filing under the Securities Act or the Exchange Act and the rules and regulations promulgated thereunder. None of the Company’s current or future affiliates, or which restricts the conduct of any line of business by the Company, any of its Subsidiaries or, to the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which Knowledge of the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct business, in each case in any respect, (vi) would reasonably be expected to prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions or (vii) is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded Asset. Each contract of the type described in this Section 3.13, whether or not set forth in Section 3.13 of the Company Disclosure Schedule, is referred to herein as a “Company Material Contract”. Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities is valid and binding on the Company and each Company Subsidiary party thereto and, to the Company’s knowledge, each other party thereto, as applicable, and is in full force and effect, and the Company and each Company Subsidiary has performed all obligations required to be performed by it under each such Company Agreement and, to the Company’s knowledge, each other party to each such Company Agreement has performed all obligations required to be performed by it under such Company Agreement, except as would not, or would not be reasonably expected to, individually violation of or in the aggregate, (1) prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. None of the Company or any Company Subsidiary knows of, or has received notice of, any violation or default under (or nor does there exist any condition which with upon the passage of time or the giving of notice or both would cause such a violation of or default under) any Company Agreement relating Contract, to the ADS Businesswhich it is a party or by which it or any of its properties or other assets is bound, the Acquired Assets or the Retained Liabilities except for violations or defaults that would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in aggregate have not had and would not reasonably be expected to have a Company Material Adverse Effect. The None of the Company or any of its Subsidiaries has entered into any Contract with any Affiliate of the Company that is currently in effect other than agreements that are disclosed in the Filed Company SEC Documents. None of the Company or any of its Subsidiaries is a party to or otherwise bound by any agreement or covenant (A) restricting the Company’s or any of its Affiliates’ ability to compete or by any agreement or covenant restricting in any respect the research, development, distribution, sale, supply, license, marketing or manufacturing of products or services of the Company or any of its Affiliates, (B) containing a right of first refusal, right of first negotiation or right of first offer or (C) containing any material indemnity obligations to third parties.
(ii) Each employee, contractor or consultant of the Company and its Subsidiaries who has proprietary knowledge of or information relating to the manufacturing processes, or the formulation of the products, of the Company or any of its Subsidiaries has executed and delivered to the Purchaser Company or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all applicable Subsidiary of the Company Material Contracts an agreement or other Company Agreements relating to agreements, substantially in the ADS Business, the Acquired Assets or the Retained Liabilities required to be disclosed form(s) set forth in Section 3.13 3.01(i)(ii) of the Company Disclosure Schedule, which are not filed as exhibits restricting such person’s right to the Company SEC Documents (A) use and the Company Material Contracts or other Company Agreements required to be disclosed in Section 3.13 disclose confidential information of the Company Disclosure Schedule filed as exhibits to or any of its Subsidiaries and (B) enter into certain employment, consulting or similar contractual relationships with companies that are competitors of the Company SEC Documents are true, complete and correct copies its Subsidiaries for a specified period of such contractstime.
Appears in 1 contract
Sources: Merger Agreement (Animas Corp)
Contracts. Except as filed as exhibits to the Company SEC Documents filed prior to the date hereof, or as disclosed in Section 3.13 of the Company Disclosure Schedule, there is no Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities (a) any of the benefits to any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or (b) which, as As of the date hereofof this Agreement, neither the Company nor any of its Subsidiaries is a party to or bound by any Contract (whether written or oral): (i) which is a “"material contract” " (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) to be performed in full or in part after the date of this Agreement that has not been filed or incorporated by reference in the Company SEC Documents; (ii) which is a Contract with respect to any partnership or joint venture in which the Company or any of its Subsidiaries is a party; (iii) which constitutes a contract or commitment relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset) in excess of $2,000,000; or (iv) which contains any provision that would prevent any Affiliate of the Company (or any Affiliate of any such Affiliate of the Company), other than the Company, any of its Subsidiaries or any director, officer or employee of any of the Company or any of its Subsidiaries from operating in a particular line or lines of business. Each contract, arrangement, commitment or understanding of the type described in clauses (i), (ii) involves aggregate expenditures in excess of $50,000 per annum, and (iii) involves aggregate expenditures in excess of $50,000 and was not entered into in the ordinary course of business, (iv) contains “take or pay” provisions applicable to the Company or any Company Subsidiary, (v) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to the Company, any Company Subsidiary or any of the Company’s current or future affiliates, or which restricts the conduct of any line of business by the Company, any of the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct business, in each case in any respect, (vi) would reasonably be expected to prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions or (vii) is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded Asset. Each contract of the type described in this Section 3.134.12, whether or not set forth in Section 3.13 of the Company Disclosure ScheduleLetter or in the Company SEC Documents, is referred to herein as a “Company Material "Disclosed Contract”. ".
(i) Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities Contract that is not a Disclosed Contract is valid and binding on the Company and each Company Subsidiary party thereto and, to the Company’s knowledge, each other any of its Subsidiaries that is a party thereto, as applicable, and in full force and effect, except where the failure to be valid, binding and in full force and effect, either individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect, (ii) the Company and each Company Subsidiary of its Subsidiaries has in all material respects performed all obligations required to be performed by it to date under each such Company Agreement and, to the Company’s knowledge, each other party to each such Company Agreement has performed all obligations required to be performed by it under such Company AgreementContract, except as would notwhere such noncompliance, or would not be reasonably expected to, either individually or in the aggregate, (1) prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in would not reasonably be expected to have a Company Material Adverse Effect. None of , and (iii) neither the Company or nor any Company Subsidiary of its Subsidiaries knows of, or has received notice of, the existence of any violation event or default under (or any condition which with the passage constitutes, or, after notice or lapse of time or both, will constitute, a default on the giving part of notice would cause the Company or any of its Subsidiaries under any such a violation of or default under) any Company Agreement relating to the ADS BusinessContract, the Acquired Assets or the Retained Liabilities except for violations or defaults that would notwhere such default, or would not be reasonably expected to, either individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in would not reasonably be expected to have a Company Material Adverse Effect. The Company has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete Each Disclosed Contract is valid and correct copies of all of binding on the Company Material Contracts or other Company Agreements relating to the ADS Businessand any of its Subsidiaries that is a party thereto, the Acquired Assets or the Retained Liabilities required to be disclosed as applicable, and in Section 3.13 of the Company Disclosure Schedule, which are not filed as exhibits to the Company SEC Documents full force and the Company Material Contracts or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contractseffect.
Appears in 1 contract
Contracts. Except as filed as exhibits for such items with respect to the Company SEC Documents filed prior to the date hereof, or as disclosed in Section 3.13 purchase of the Company Disclosure Schedule, there is no Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities (a) any of the benefits to any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or (b) which, as of the date hereof, (i) is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC), (ii) involves aggregate expenditures in excess of $50,000 per annum, (iii) involves aggregate expenditures in excess of $50,000 and was not entered into goods for resale in the ordinary course of businessbusiness or intercompany transactions between or among the Company and/or Company Subsidiaries, Schedule 4.14 is a complete list of all written contracts, agreements, commitments, leases, sales contracts and other agreements to which the Company or any of the Company Subsidiaries is a party as of the date of this Agreement (ivi) contains “take which provide for the receipt or pay” provisions applicable to expenditure by the Company or any Company SubsidiarySubsidiary after the date of this Agreement, of more than $1,000,000 (or, in either case, its equivalent in non-cash consideration) per year; (ii) which provide for the acquisition, issuance or transfer of any securities of the Company other than this Agreement, the Company Stock Options or the Company Warrants, (iii) which create Liens on assets of the Company or any of the Company Subsidiaries as security for indebtedness for borrowed money, (iv) with any fast-food or motel franchisors; or (v) contains with any non-Stockholder (or any affiliate of any Stockholder) pursuant to which the Company (or any Company Subsidiary) will have any Liability or obligation following the Closing, (vii) all agreements with a labor union, or (viii) any agreement that limits the freedom of the Company or any Company Subsidiary to compete or exclusivity provisions with respect to in any line of business with any Person or geographic area with respect to the Company, any Company Subsidiary or any of the Company’s current or future affiliates, or which restricts the conduct of any line of business by the Company, any of the Company’s current or future affiliates, any Company Subsidiary or in any geographic area (all agreements, arrangements or commitments required to be identified in which Schedule 4.14 being hereinafter referred to as the Company, any Company Subsidiary or any “Material Contracts”). True and complete copies of all the Company’s current or future affiliates may conduct business, Material Contracts (including all written amendments thereto) identified in each case in any respectSchedule 4.14 have been made available to Parent through the Dataroom. Except as set forth on Schedule 4.14, (vii) would reasonably be expected to prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions or (vii) is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded Asset. Each contract of the type described in this Section 3.13, whether or not set forth in Section 3.13 of the Company Disclosure Schedule, is referred to herein as a “Company all Material Contract”. Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities is Contracts are valid and binding on the Company and each Company Subsidiary party thereto and, to the Company’s knowledge, each other party thereto, as applicable, and in full force and effectexisting, and the Company and each the Company Subsidiaries, have duly performed their obligations thereunder in all material respects to the extent such obligations have accrued, and (ii) no breach or default thereunder by the Company or any Company Subsidiary has performed all obligations required occurred and is continuing, except in each case, for those failures to be performed by it under each such Company Agreement and, to the Company’s knowledge, each other party to each such Company Agreement has performed all obligations required to be performed by it under such Company Agreement, except as valid and existing or breaches or defaults which would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit have, or materially delay the consummation of the Offerreasonably be expected to have, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. 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 Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities except for violations or defaults that would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. The Company has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all of the Company Material Contracts or other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities 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 or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contracts.
Appears in 1 contract
Contracts. (a) Except for the agreements listed on Section 5.15 of the Buyer Disclosure Letter, and except as set forth in the Buyer Reports filed as exhibits to the Company SEC Documents filed and publicly available prior to the date hereofof this Agreement, or as disclosed in Section 3.13 of the Company Disclosure Schedule, there is no Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities (a) neither Buyer nor any of the benefits its subsidiaries is a party to or bound by any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or (b) which, as of the date hereof, (i) is a Contracts containing covenants restricting the payment of dividends by Buyer, (ii) Contracts containing covenants limiting the freedom in any material respect of Buyer or any of its subsidiaries or any of their respective affiliates to engage in Buyer’s core business or compete with any person or operate, in each case in ERCOT or any of NEPOOL, NYISO, PJM, SERC/SPP and California or (iii) “material contract” (as such term is defined in Item item 601(b)(10) of Regulation S-K of the SEC), ) (ii) involves aggregate expenditures in excess of $50,000 per annum, (iii) involves aggregate expenditures in excess of $50,000 and was not entered into in the ordinary course of business, (iv) contains “take or pay” provisions applicable to the Company or any Company Subsidiary, (v) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to the Company, any Company Subsidiary or any of the Company’s current or future affiliates, or which restricts the conduct of any line of business by the Company, any of the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct business, in each case in any respect, (vi) would reasonably be expected to prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions or (vii) is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded Asset. Each contract all contracts of the type described in this Section 3.13, whether or not set forth in Section 3.13 of the Company Disclosure Schedule, is 5.15 being referred to herein as a “Company Material ContractBuyer Contracts”. Each Company Agreement relating to ).
(b) Neither Buyer nor any of its subsidiaries is in breach of or default under the ADS Business, the Acquired Assets or the Retained Liabilities is valid and binding on the Company and each Company Subsidiary party thereto terms of any Buyer Contract and, to the Company’s knowledgeknowledge of Buyer, each other party thereto, as applicable, and in full force and effect, and the Company and each Company Subsidiary has performed all obligations required to be performed by it under each such Company Agreement and, to the Company’s knowledge, each no other party to any Buyer Contract is in breach of or default under the terms of any Buyer Contract, in each case where such Company Agreement breach or default has performed all obligations required to be performed by it under such Company Agreement, except as would nothad, or would not reasonably be reasonably expected toto have, individually or in the aggregate, (1) prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Buyer Material Adverse Effect. None Each Buyer Contract is a valid and binding obligation of Buyer or the subsidiary of Buyer which is party thereto and, to the knowledge of Buyer, of each other party thereto, and is in full force and effect, 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 (ii) 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 Company or court before which 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 Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities except for violations or defaults that would not, or would not proceeding therefor may be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. The Company has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all of the Company Material Contracts or other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities 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 or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contractsbrought.
Appears in 1 contract
Contracts. Except as filed as exhibits to the Company SEC Documents filed prior to the date hereof, or as disclosed in Section 3.13 of the Company Disclosure Schedule, there is no Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities (a) The Company has made available to the --------- Buyer true, correct and complete copies of all written contracts and agreements (or written summaries of the terms of any oral contracts or agreements) to which the Company is a party or by which any of its properties or assets are bound that are material to the business, properties or assets of the Company, including, without limitation, to the extent any of the benefits to any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or (b) which, as of the date hereof, (i) is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC), (ii) involves aggregate expenditures in excess of $50,000 per annum, (iii) involves aggregate expenditures in excess of $50,000 and was not entered into in the ordinary course of business, (iv) contains “take or pay” provisions applicable to the Company or any Company Subsidiary, (v) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to the Company, any Company Subsidiary or any of the Company’s current or future affiliates, or which restricts the conduct of any line of business by the Company, any of the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct business, in each case in any respect, (vi) would reasonably be expected to prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions or (vii) is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded Asset. Each contract of the type described in this Section 3.13, whether or not set forth in Section 3.13 of the Company Disclosure Schedule, is referred to herein as a “Company Material Contract”. Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities is valid and binding on the Company and each Company Subsidiary party thereto and, to the Company’s knowledge, each other party thereto, as applicable, and in full force and effect, and the Company and each Company Subsidiary has performed all obligations required to be performed by it under each such Company Agreement and, to the Company’s knowledge, each other party to each such Company Agreement has performed all obligations required to be performed by it under such Company Agreement, except as would not, or would not be reasonably expected tofollowing are, individually or in the aggregate, (1) prohibit material to the business, properties or materially delay the consummation assets of the OfferCompany: (i) employment, personal services, consulting, non-competition, severance, golden parachute or director, officer or employee indemnification agreements; (ii) contracts granting a right of first refusal or first negotiation with respect to any assets or line of business of the Merger Company; (iii) partnership or joint venture agreements; (iv) agreements for the acquisition, sale or lease of material properties or assets of the Company (by merger, purchase or sale of assets or stock or otherwise) entered into since January 1, 1997; (v) contracts or agreements with any Governmental Entity; (vi) Real Property Leases (as hereinafter defined); and (vii) all commitments and agreements to enter into any of the other Transactionsforegoing (collectively, together with any such contracts entered into in accordance with Section 4.1 hereof, the "Contracts").
(2b) otherwise prevent or materially delay performance Except as set forth in Section 2.13 of the Seller Disclosure Schedule: (i) there is no default under any Contract by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. None or, to the knowledge of the Company or Seller, by any Company Subsidiary knows ofother party thereto, or and no event has received notice of, any violation or default under (or any condition which occurred that with the passage lapse of time or the giving of notice or both would cause such constitute a violation of default thereunder by the Company, or default under) any Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities except for violations or defaults that would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation knowledge of the OfferSeller, the Merger any other party, in any such case in which such default or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in event could reasonably be expected to have a Company Material Adverse Effect. The Company ; (ii) no party to any such Contract has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all of the Company Material Contracts or other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities required to be disclosed in Section 3.13 of the Company Disclosure Schedule, which are not filed as exhibits given notice to the Company SEC Documents and of or made a claim against the Company with respect to any breach or default thereunder, in any such case in which such breach or default could reasonably be expected to have a Company Material Adverse Effect; and (iii) all the Contracts are valid, binding and enforceable (except as such enforceability may be subject to any bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other Company Agreements required laws, now or hereafter in effect, relating to be disclosed in Section 3.13 or limiting creditors' rights generally) obligations of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contractsCompany.
Appears in 1 contract
Sources: Exchange Agreement (Ticketmaster Online Citysearch Inc)
Contracts. Except as filed as exhibits The Company has delivered to the Company SEC Documents filed prior AHC true copies of all written, and disclosed to the date hereofAHC Sub all oral, or as disclosed in Section 3.13 outstanding contracts, obligations and commitments of the Company Disclosure Schedule("Contracts"), there is no Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities (a) any of the benefits to any party all of which will be increased, are listed or the vesting of the benefits to any party of which will be accelerated, incorporated by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated reference on the basis of any of the Transactions Schedule 2.7 (except as disclosed pursuant to Section 3.11) or (b) which, as of the date hereof, (i) is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC), (ii) involves aggregate expenditures in excess of $50,000 per annum, (iii) involves aggregate expenditures in excess of $50,000 and was not entered into in the ordinary course case of businessleases) and Schedule 2.14 (in the case of Contracts other than leases) attached hereto. Except as otherwise indicated on such Schedules, (iv) contains “take or pay” provisions applicable to the Company or any Company Subsidiaryall of such Contracts are valid, (v) contains any non-compete or exclusivity provisions binding and enforceable in accordance with respect to any line of business or geographic area with respect to the Company, any Company Subsidiary or any of the Company’s current or future affiliates, or which restricts the conduct of any line of business by the Company, any of the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct business, in each case in any respect, (vi) would reasonably be expected to prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions or (vii) is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded Asset. Each contract of the type described in this Section 3.13, whether or not set forth in Section 3.13 of the Company Disclosure Schedule, is referred to herein as a “Company Material Contract”. Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities is valid their terms and binding on the Company and each Company Subsidiary party thereto and, to the Company’s knowledge, each other party thereto, as applicable, and are in full force and effect, and no defenses, offsets or counterclaims have been asserted or may be made by any party thereto. Except as indicated on such Schedules, there is not under any such Contract any existing default by the Company, or any condition or event of which the Company or the Shareholder has knowledge which with notice or lapse of time, or both, would constitute a default. The Company and the Shareholder have no knowledge of any default by any other party to such Contracts. Neither the Company nor the Shareholder have received notice of the intention of any party to any Contract to cancel or terminate any Contract and have no reason to believe that any amendment or change to any
(a) Contract related to the assets of the Company not made in the ordinary course of business other than this Agreement;
(b) Employment, consulting or compensation agreement or arrangement;
(c) Labor or collective bargaining agreement;
(d) Lease agreement with respect to any property, whether as lessor or lessee;
(e) Deed, bill ▇▇ sale or other document evidencing an interest in or agreement to purchase or sell real or personal property;
(f) Contract for the purchase of materials, supplies or equipment (i) which is in excess of the requirements of its business now booked or for normal operating inventories, or (ii) which is not terminable upon notice of thirty (30) days or less;
(g) Agreement for the purchase from a supplier of all or substantially all of the requirements of the Company of a particular product or service;
(h) Loan agreement or other contract for money borrowed or lent or to be borrowed or lent to another;
(i) Installment sales contracts between the Company and each Company Subsidiary has performed all obligations required to any customer;
(j) Contracts containing non-competition covenants; or
(k) Other contracts or agreements that involve either an unperformed commitment in excess of $5,000 or that terminate or can only be performed by it under each such Company Agreement and, to the Company’s knowledge, each other party to each such Company Agreement has performed all obligations required to be performed by it under such Company Agreement, except as would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance terminated by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. None of on more than 30 days after 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 Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities except for violations or defaults that would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. The Company has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all of the Company Material Contracts or other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities 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 or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contractsdate hereof.
Appears in 1 contract
Contracts. Except as filed as exhibits to the Company Parent SEC Documents Filings filed prior to the date hereofof this Agreement, or as disclosed in Section 3.13 4.13 of the Company Parent Disclosure Schedule, there none of Parent or any Parent Subsidiary is no Company Agreement relating a party to the ADS Business, the Acquired Assets or the Retained Liabilities bound by any contract (aA) any of the benefits to any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions transactions contemplated by this Agreement or any Ancillary Agreement, or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) transactions contemplated by this Agreement or any Ancillary Agreement, or (bB) which, as of the date hereof, (i1) is a “"material contract” " (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC), (ii2) involves aggregate expenditures in excess of $50,000 per annum250,000, (iii) involves aggregate expenditures in excess other than contracts for the purchase of $50,000 raw materials, components or manufacturing goods and was not entered into contracts for the sale of Parent's products in the ordinary course of business, (iv3) contains “take involves annual expenditures in excess of $250,000 and is not cancelable within one year, other than contracts for the purchase of raw materials, components or pay” provisions applicable to manufacturing goods and contracts for the Company or any Company Subsidiarysale of Parent's products in the ordinary course of business, (v4) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to the CompanyParent, any Company Parent Subsidiary or any of the Company’s Parent's current or future affiliates, or which restricts the conduct of any line of business by the CompanyParent, any Parent Subsidiary or any of the Company’s Parent's current or future affiliates, any Company Subsidiary affiliates or any geographic area in which the CompanyParent, any Company Parent Subsidiary or any of the Company’s Parent's current or future affiliates may conduct business, in each case in any material respect, (vi5) involves the sale of a Parent Product to a customer or distributor and provides for a right of refund or return for any reason, including upon the occurrence of specified events or otherwise or (6) would reasonably be expected to prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions transactions contemplated by this Agreement or (vii) is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded Assetany Ancillary Agreement. Each contract Contract of the type described in this Section 3.134.13, whether or not set forth in Section 3.13 4.13 of the Company Parent Disclosure Schedule, is referred to herein as a “Company "Parent Material Contract”. ." Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities Parent Material Contract is valid and binding on the Company Parent and each Company Parent Subsidiary party thereto and, to the Company’s Parent's knowledge, each other party thereto, as applicable, and in full force and effect, and the Company Parent and each Company Parent Subsidiary has in all material respects performed all obligations required to be performed by it to the date hereof under each such Company Agreement Parent Material Contract and, to the Company’s Parent's knowledge, each other party to each such Company Agreement Parent Material Contract has in all material respects performed all obligations required to be performed by it under such Company AgreementParent Material Contract, except as would not, or would not be reasonably expected to, individually or in the aggregate, reasonably be expected to (1) prohibit prevent or materially delay the consummation of the Offer, the Merger or any of the other TransactionsMerger, (2) otherwise prevent or materially delay performance by the Company Parent or Merger Sub of any of its their material obligations under this Agreement or any Ancillary Agreement to which it is a party, or (3) result in a Company Parent Material Adverse Effect. None of the Company Parent or any Company Parent 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 Agreement relating Parent Material Contract or any other contract to the ADS Businesswhich it is a party or by which it or any of its properties or assets is bound, the Acquired Assets or the Retained Liabilities except for violations or defaults that would not, or would not be reasonably expected to, individually or in the aggregate, reasonably be expected to (1) prohibit prevent or materially delay consummation of the Offer, the Merger or any of the other TransactionsMerger, (2) otherwise prevent or materially delay performance by the Company Parent or Merger Sub of any of its their material obligations under this Agreement or any Ancillary Agreement to which it is a party or (3) result in a Company Parent Material Adverse Effect. The Company has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all Section 4.13 of the Company Material Contracts or other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities required to be disclosed in Section 3.13 Parent Disclosure Schedule provides Parent's good faith estimate of the Company Disclosure Schedule, additional costs which are not filed will accrue to Parent under the contracts described in clause (A) of Section 4.13 as exhibits to the Company SEC Documents and the Company Material Contracts or other Company Agreements required to be disclosed in Section 3.13 a result of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contractstransactions contemplated by this Agreement or any Ancillary Agreement.
Appears in 1 contract
Contracts. Except as filed as exhibits to the Company SEC Documents filed prior to the date hereof, or as disclosed in Section 3.13 3.15 of the Company Disclosure Schedule, there is no Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities (a) any of the benefits to any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or (b) which, Letter sets forth a list as of the date hereofof this Agreement of each Contract to which either the Company or any of its Subsidiaries is a party or bound (other than a Contract solely between or among the Company and its wholly-owned Subsidiaries) that (a) provides that any of them will not compete with any other Person, or which grants “most favored nation” protections to the counterparty to such Contract, in each case that is material to the Company and its Subsidiaries, taken as a whole, and after the Effective Time would be binding upon Parent or any of its Subsidiaries (other than the Company and its Subsidiaries), (ib) purports to limit in any material respect either the type of business in which the Company or its Subsidiaries may engage or the manner or locations in which any of them may so engage in any business, that in each case after the Effective Time would be binding upon Parent or any of its Subsidiaries (other than the Company and its Subsidiaries), (c) requires the Company or its Subsidiaries (or, after the Effective Time, Parent or its Subsidiaries) to deal exclusively with any Person or group of related Persons, which Contract is material to the Company and its Subsidiaries, taken as a whole (other than any licenses or other Contracts entered into in the ordinary course), (d) is material to the formation, creation, management or control of any partnership or joint venture (other than any Contract entered into in the ordinary course of business consistent with past practice relating to ongoing operations of such partnership or joint venture), (e) is required to be filed by the Company as a “material contract” (as such term is defined in pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act, (f) contains a put, call 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, (g) is a lease of personal property or real property providing for annual payments of $500,000 or more, (h) relates to Borrowed Money Indebtedness of the SEC), Company or any of its Subsidiaries (iiA) involves aggregate expenditures in a principal amount that exceeds $500,000 or (B) which imposes a Lien on assets of the Company or any of its Subsidiaries with a value in excess of $50,000 per annum500,000, (iiii) involves is a material partnership, limited liability company, joint venture or other similar agreement or arrangement involving the Company or any of its Subsidiaries, on the one hand, and any third party, on the other hand, (j) is a Contract providing for the acquisition or disposition of any business or operations (whether by merger, sale of stock, sale of assets or otherwise) as to which there are any material ongoing obligations, (k) contains any license or other right with respect to any Intellectual Property that is material to the conduct of the business or the Company and its Subsidiaries (other than inbound (x) licenses for off-the-shelf software commercially available on standard and non-negotiable terms for an aggregate expenditures fee of no more than $250,000 and (y) non-exclusive licenses to Intellectual Property that are merely incidental to the primary purpose of such Contract) or (l) is not of a type (disregarding any dollar thresholds, materiality or other qualifiers, restrictions or other limitations) described in excess the foregoing clauses (a) through (k) that has or would reasonably be likely to involve payments or receipts, other than with respect to purchases of $50,000 and was not entered into stock, inventory or raw materials in the ordinary course of businessbusiness consistent with past practice, in excess of $15,000,000 in any year (ivsuch Contracts required to be listed pursuant to clauses (a) contains through (l) above, the “take or pay” provisions applicable Material Contracts”). A true, correct and complete copy of each Material Contract, as amended as of the date of this Agreement, including all attachments, schedules and exhibits thereto, has been made available to Parent prior to the Company or any Company Subsidiary, (v) contains any non-compete or exclusivity provisions with respect to any line date of business or geographic area with respect to the Company, any Company Subsidiary or any this Agreement. Each of the Company’s current or future affiliates, or which restricts the conduct of any line of business by the Company, any of the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct business, in each case in any respect, (vi) would reasonably be expected to prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions or (vii) is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded Asset. Each contract of the type described in this Section 3.13, whether or not set forth in Section 3.13 of the Company Disclosure Schedule, is referred to herein as a “Company Material Contract”. Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities Contracts is valid and binding on the Company and each Company Subsidiary party thereto or its Subsidiaries, as the case may be and, to the knowledge of the Company’s knowledge, each other party thereto, as applicable, and is in full force and effect, and the Company and each Company Subsidiary has performed all obligations required except for such failures to be performed by it under each such Company Agreement and, to the Company’s knowledge, each other party to each such Company Agreement has performed all obligations required valid and binding or to be performed by it under such Company Agreement, except in full force and effect as would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in reasonably be expected to have a Company Material Adverse Effect. None Neither the Company nor any of its Subsidiaries nor, to the knowledge of the Company or any Company Subsidiary knows of, or has received notice ofCompany, any violation other party is in breach of or in default under (or any condition which Material Contract, and no event has occurred that, with the passage lapse of time or the giving of notice or both, would cause such constitute a violation default thereunder by the Company or any of or default under) any Company Agreement relating to the ADS Businessits Subsidiaries, the Acquired Assets or the Retained Liabilities in each case, except for violations or such breaches and defaults that as would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in reasonably be expected to have a Company Material Adverse Effect. The Company has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all of the Company Material Contracts or other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities 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 or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contracts.
Appears in 1 contract
Sources: Merger Agreement (Forterra, Inc.)
Contracts. Except 12.1 So far as filed as exhibits the Warrantors are aware, except for the agreements and arrangements referred to the Disclosure letter, neither the Company SEC Documents filed prior to nor any of the date hereofSubsidiaries is a party to, or otherwise subject to any agreement, arrangement, understanding or commitment which:
(a) is of an unusual or exceptional nature; or
(b) is not in the ordinary and usual course of the Business; or
(c) may be terminated as disclosed in Section 3.13 a result of a Change of Control of the Company Disclosure Schedule, there is no Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities (a) any of the benefits to any party Subsidiaries; or
(d) other than requirements of which will be increased, law or regulation restricts the vesting freedom of the benefits to any party of which will be accelerated, by the occurrence of Company or any of the Transactions Subsidiaries to carry on the whole or any part of the value Business in any part of the world in such manner as it thinks fit; or
(e) involves agency or distributorship; or
(f) involves partnership, joint venture, consortium, joint development, shareholder or similar arrangements; or
(g) involves the grant of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) sole or (b) which, as of the date hereof, (i) is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC), (ii) involves aggregate expenditures in excess of $50,000 per annum, (iii) involves aggregate expenditures in excess of $50,000 and was not entered into in the ordinary course of business, (iv) contains “take exclusive rights by or pay” provisions applicable to the Company or any of the Subsidiaries; or
(h) (other than the leases pursuant to which the Company Subsidiaryand the Subsidiaries occupying the Properties), is incapable of complete performance in accordance with its terms within six months after the date on which it was entered into; or
(vi) contains any non-compete cannot be readily fulfilled or exclusivity provisions with respect to any line performed by the Company or the relevant Subsidiary on time and without undue or unusual expenditure of business money and effort; or
(j) involves an aggregate consideration payable by or geographic area with respect to the Company, any Company Subsidiary or any of the Company’s current or future affiliates, or which restricts Subsidiaries in excess of £25,000; or
(k) requires the conduct of any line of business by the Company, any of the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current Subsidiaries to pay any commission, finders’ fee, royalty or future affiliates may conduct business, in each case in any respect, the like; or
(vil) would reasonably be expected is for the supply of services by or to prohibit or materially delay the consummation of the Offer, the Merger Company or any of the Subsidiaries on terms under which retrospective or future discounts, price reductions or other Transactions or financial incentives are given; or
(viim) is necessary not on arm’s-length terms; or
(n) is a finance lease, hire purchase, rental or credit sale agreement or which otherwise provides for the conduct purchase or right to purchase any asset by instalment payments.
12.2 There are no outstanding or ongoing negotiations of the ADS Business as currently conducted but constitutes an Excluded Asset. Each contract of the type described in this Section 3.13material importance to business, whether profits or not set forth in Section 3.13 of the Company Disclosure Schedule, is referred to herein as a “Company Material Contract”. Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities is valid and binding on the Company and each Company Subsidiary party thereto and, to the Company’s knowledge, each other party thereto, as applicable, and in full force and effect, and the Company and each Company Subsidiary has performed all obligations required to be performed by it under each such Company Agreement and, to the Company’s knowledge, each other party to each such Company Agreement has performed all obligations required to be performed by it under such Company Agreement, except as would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. None assets of the Company or any Company Subsidiary knows ofof the Subsidiaries, or has received notice ofany outstanding quotations or tenders for a contract that, if accepted, would give rise to a contract which would result in that counterparty being a Material Counterparty, or a contract of any violation other type as referred to in paragraph 12.1 of Part 1 of this Schedule 5.
12.3 Neither the Company nor any of the Subsidiaries, nor any other counterparty is in default of any agreement, arrangement, undertaking or commitment a default under (or any condition of which with the passage of time or the giving of notice would cause such a violation of or default under) any Company Agreement relating be material having regard to the ADS Businesstrading, the Acquired Assets profits or the Retained Liabilities except for violations or defaults that would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation financial position of the OfferCompany and the Subsidiaries. No such default has been threatened, and there are no facts or circumstances likely to give rise to any such default.
12.4 No notice of termination of any contract which involves an aggregate consideration payable by or to the Merger Company or any of the other Transactions, (2) otherwise prevent Subsidiaries in excess of £25,000 in any one calendar year has been served by or materially delay performance by on the Company or any of the Subsidiaries and there are no grounds for the termination, rescission, avoidance, repudiation by any party of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. The Company has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all of the Company Material Contracts or other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities 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 or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contractsContract.
Appears in 1 contract
Sources: Share Purchase Agreement (Bright Horizons Family Solutions Inc.)
Contracts. Except as filed as exhibits to the Company SEC Documents filed prior to the date hereof, or as disclosed in Section 3.13 of the Company Disclosure Schedule, there is no Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities (aSchedule 2.1(w) any of the benefits to any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence hereto contains a complete and correct list and brief description of any of the Transactions or the value of any of the benefits and all material contracts, grants, agreements, hypothecs, mortgages, notes, commitments, obligations and undertakings to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or (b) which, as of the date hereof, (i) is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC), (ii) involves aggregate expenditures in excess of $50,000 per annum, (iii) involves aggregate expenditures in excess of $50,000 and was not entered into in the ordinary course of business, (iv) contains “take or pay” provisions applicable to the Company or any Company Subsidiary, (v) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to the Company, any Company Subsidiary or any of the Company’s current Affiliates is a party or future affiliatesotherwise bound. True copies of all written contracts, or which restricts the conduct of any line of business by the Companygrants, any of the Company’s current or future affiliatesagreements, any Company Subsidiary or any geographic area in which the Companyhypothecs, any Company Subsidiary or any of the Company’s current or future affiliates may conduct businessmortgages, in each case in any respectnotes commitments, (vi) would reasonably be expected to prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions or (vii) is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded Asset. Each contract of the type described in this Section 3.13, whether or not obligations and undertakings set forth in Section 3.13 of the Company Disclosure ScheduleSchedule 2.1(w) hereto have been furnished to Buyer in full, is referred to herein and except as a “Company Material Contract”. Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities is valid and binding on the Company and each Company Subsidiary party thereto and, to the Company’s knowledgeexpressly stated in Schedule 2.1(w), each other party thereto, as applicable, and of them is in full force and effect, no person or entity which is a party thereto or otherwise bound thereby is, to the best knowledge of the Company, the Affiliates and the Sellers, in material default thereunder, and no event, occurrence, condition or act exists which, with the giving of notice or the lapse of time or both, would give rise to a material default or right of cancellation thereunder where such default or right of cancellation could reasonably be expected to have a Material Adverse Effect, and the Company and each the Affiliates are not in default thereunder and no event, occurrence, condition or act exists by or on behalf of the Company Subsidiary has performed all obligations required or the Affiliates which, with the giving of notice or the lapse of time or both would give rise to be performed a default by it under each such the Company Agreement andor the Affiliates thereunder, and to the Company’s 's, the Affiliates' and the Sellers' best knowledge, each other party there have been no threatened cancellations thereof and there are no outstanding disputes thereunder where such disputes, if determined against the Company or any Affiliates, could reasonably be expected to each such Company Agreement has performed all obligations required to be performed by it under such Company Agreementhave a Material Adverse Effect. Except as set forth on Schedule 2.1(w) hereto, except as would notneither the Company, or would the Affiliates nor the Sellers are aware of any reason why any of the contracts listed on Schedule 2.1(w), could not be reasonably expected tocontinued on the same terms and conditions as currently apply after Closing. To the best of the Company's, individually the Affiliates' and the Sellers' knowledge, there is no reason to believe that any of the Company's or in the aggregate, (1) prohibit Affiliates' contractual partners will terminate their relationship with the Company or materially delay the Affiliates as a result of the consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. 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 Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities except for violations or defaults that would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. The Company has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all of the Company Material Contracts or other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities 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 or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contractstransactions contemplated hereby.
Appears in 1 contract
Sources: Stock Purchase Agreement (Protocol Communications Inc)
Contracts. Except as filed as exhibits (a) SCHEDULE 3.14(a) contains a true and complete list of each of the following Contracts or other arrangements (true and complete copies or, if none, reasonably complete and accurate written descriptions of which, together with all amendments and supplements thereto and all waivers of any terms thereof, have been delivered to the Company SEC Documents filed Purchaser prior to the date hereofClosing Date), to which Sunrise is a party or as disclosed in Section 3.13 of the Company Disclosure Schedule, there is no Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities (a) by which any of the benefits to any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or (b) which, as of the date hereof, its Assets and Properties is bound:
(i) is a “material contract” (as such term is defined all Contracts with any Person containing any provision or covenant prohibiting or limiting the ability of Sunrise to engage in Item 601(b)(10) any business activity or compete with any Person or prohibiting or limiting the ability of Regulation S-K of the SEC), any Person to compete with Sunrise;
(ii) involves aggregate expenditures in excess of $50,000 per annumall partnership, joint venture, shareholders' or other similar Contracts with any Person;
(iii) involves aggregate expenditures in excess all Contracts for the purchase or lease of $50,000 any real property on which the Project shall be located, including, without limitation, the Site Lease;
(iv) all Contracts relating to Indebtedness of Sunrise;
(v) all Contracts with distributors, dealers, manufacturer's representatives, sales agencies or franchisees;
(vi) all Contracts relating to (A) the future disposition or acquisition of any Assets and was not entered into Properties, other than dispositions or acquisitions in the ordinary course of businessbusiness consistent with past practice, and (ivB) contains “take or pay” provisions applicable to the Company or any Company Subsidiary, (v) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to the Company, any Company Subsidiary or any of the Company’s current or future affiliates, or which restricts the conduct of any line of business by the Company, any of the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct business, in each case in any respect, (vi) would reasonably be expected to prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions or Business Combination;
(vii) is necessary for all Contracts between or among Sunrise, on the conduct one hand, and Seller, any officer, director, Affiliate of Seller of any such officer, director or Affiliate (other than Sunrise), on the ADS other hand;
(viii) all collective bargaining or similar labor Contracts;
(ix) all Contracts that (A) limit or contain restrictions on the ability of Sunrise to declare or pay dividends on, to make any other distribution in respect of or to issue or purchase, redeem or otherwise acquire its capital stock, to incur Indebtedness, to incur or suffer to exist any Lien, to purchase or sell any Assets and Properties, to change the lines of business in which it participates or engages or to engage in any Business as currently conducted but constitutes an Excluded Asset. Each contract Combination or (B) require Sunrise to maintain specified financial ratios or levels of the type described in this Section 3.13net worth or other indicia of financial condition;
(x) all other Contracts that involve any payment or potential payment, whether or not set forth in Section 3.13 of the Company Disclosure Schedule, is referred to herein as a “Company Material Contract”. Each Company Agreement relating pursuant to the ADS Businessterms of any such Contract, by or to Sunrise; and
(xi) all Contracts constituting Project documents, including, without limitation, the Acquired Assets or engineering, procurement and construction contract, the Retained Liabilities is valid and binding on the Company and each Company Subsidiary party thereto andinterconnection agreements, to the Company’s knowledgefuel supply agreements, each other party theretogas supply agreements, as applicablelong term services agreement, and operations and maintenance agreements.
(b) Each Contract required to be disclosed on SCHEDULE 3.14
(a) is in full force and effecteffect and constitutes a legal, valid and the Company binding agreement, enforceable in accordance with its terms, of each party thereto; and each Company Subsidiary has performed all obligations required to be performed by it under each such Company Agreement andexcept as disclosed on SCHEDULE 3.14
(b) neither Sunrise nor, to the Company’s knowledgeBest Knowledge of Seller, each any other party to each such Company Agreement has performed all obligations required to be performed by it under such Company Agreement, except as would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. None of the Company or any Company Subsidiary knows ofContract is, or has received notice ofthat it is, any in violation or breach of or default under any such Contract (or any condition which with the passage notice or lapse of time or the giving of notice both, would cause such a be in violation or breach of or default underunder any such Contract) any Company Agreement relating to and none of such Contracts contains a right of first refusal or change of control provision that will be triggered by the ADS Business, the Acquired Assets or the Retained Liabilities except for violations or defaults that would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, transactions contemplated in the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. The Company has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all of the Company Material Contracts or other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities 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 or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contractsTransaction Documents.
Appears in 1 contract
Contracts. (a) Except as for this Agreement, any Company Benefit Plan, and except for the Contracts disclosed in and filed as unredacted exhibits to the Filed Company SEC Documents filed prior to the date hereofDocuments, or as disclosed in Section 3.13 2.13(a) of the Company Disclosure Schedule, there is no Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities (a) any of the benefits to any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or (b) whichLetter sets forth a true and complete list, as of the date hereofof this Agreement, and the Company has made available to Parent true, correct and complete copies, of:
(i) is each Contract that would be required to be filed by the Company as a “material contract” (as such term is defined in pursuant to Item 601(b)(10) of Regulation S-K of under the SEC), Securities Act;
(ii) involves aggregate expenditures in excess of $50,000 per annum, (iii) involves aggregate expenditures in excess of $50,000 and was not entered into in the ordinary course of business, (iv) contains “take or pay” provisions applicable each Contract to which the Company or any Company Subsidiary, Subsidiary is a party that (vA) contains any non-compete restricts or exclusivity provisions with respect purports to any line restrict the ability of business or geographic area with respect to the Company, any Company Subsidiary or any of the Company’s current its affiliates to compete in any business or future affiliateswith any Person in any geographical area, or which restricts the conduct of any line of business by the Company, any of the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which (B) requires the Company, any Company Subsidiary or any of its affiliates to conduct any business on a “most favored nations” basis with any third party, or (C) provides for “exclusivity” or any similar requirement in favor of any third party, except, in the Company’s current case of each of clauses (A), (B) and (C), for such restrictions, requirements and provisions that both (x) are not material to the Company and the Company Subsidiaries taken as a whole and (y) would not apply to Parent and its Subsidiaries (other than the Company and the Company Subsidiaries) following the Closing, other than, with respect to this clause (y) and solely in the case of clauses (A) and (C), any such Contract that can be canceled by the Company or future affiliates may conduct businessany Company Subsidiary without payment of any material penalty on 90 days’ notice or less;
(iii) each Contract under which the Company or any Company Subsidiary licenses or sublicenses Intellectual Property from or to any third party, except for (A) such licenses and sublicenses that are not material to the Company and the Company Subsidiaries, taken as a whole, (B) off-the-shelf, “shrink wrap” or other licenses for generally commercially available non-customized software (including open source software) or hosted or cloud-based services or (C) non-exclusive licenses to customers, vendors, distributors, suppliers or resellers of the Company or any Company Subsidiary entered into in the ordinary course of business consistent with past practice;
(iv) each Contract to which the Company or any Company Subsidiary is a party relating to the marketing, sale, licensing or distribution of any Product under which payments in excess of $1,500,000 were made by the Company or any Company Subsidiary in the fiscal year ended December 31, 2021;
(v) each Contract for the purchase, sale or lease of goods or services, materials, supplies or equipment, under which payments in excess of $2,000,000 were made by the Company or any Company Subsidiary in the fiscal year ended December 31, 2021;
(vi) each Contract to which the Company or any Company Subsidiary is a party relating to indebtedness for borrowed money (or commitments in respect thereof) or any financial guaranty, in each case with respect to an outstanding principal amount in excess of $500,000;
(vii) each Contract governing or amending, modifying, supplementing or otherwise relating to the Convertible Notes Indenture, the Convertible Notes or the Capped Call Transactions;
(viii) each Contract pursuant to which the Company or any Company Subsidiary has continuing obligations or interests involving (A) milestone or similar payments, including upon the achievement of regulatory or commercial milestones, in each case in excess of $750,000 of future payments in the aggregate, or (B) payment of royalties or other amounts calculated based upon any respectrevenues or income of the Company or any Company Subsidiary, in each case in excess of $750,000 of future payments in the aggregate;
(viix) would each material Contract with any Governmental Entity;
(x) each Contract relating to the acquisition or disposition of equity in, or a material amount of the assets of, any Person or a material business or material amount of the assets of the Company that contains financial covenants, indemnities (except for indemnities entered into the ordinary course of business and pursuant to which the Company and the Company Subsidiaries have not incurred and are not reasonably be expected to prohibit incur any material liabilities) or materially delay continuing “earn out” or other continuing contingent payment obligations;
(xi) each hedging, swap, collar, cap, derivative or similar Contract;
(xii) each supply Contract with the consummation top twenty (20) largest suppliers (by cost) of the Offerbusinesses of the Company and each Company Subsidiary (on a consolidated basis) during the twelve (12) months ended December 31, 2021 (the Merger “Top Supplier Contracts”);
(xiii) each customer Contract with the top twenty (20) largest customers (by revenue) of the businesses of the Company and each Company Subsidiary (on a consolidated basis) during the twelve (12) months ended December 31, 2021 (the “Top Customer Contracts”);
(xiv) the Contracts set forth in Section 2.13(a)(xiv) of the Company Disclosure Letter;
(xv) each lease, sublease, license or similar use, co-working service and occupancy Contract, in accordance with which the Company or any Company Subsidiary uses or occupies any real property with annual payments in excess of $500,000;
(xvi) each Contract with or binding upon the Company or any of the other Transactions Company Subsidiaries or (vii) any of their respective properties or assets that is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded Asset. Each contract of the type that would be required to be disclosed under Item 404 of Regulation S‑K under the Securities Act; and
(xvii) each partnership or joint venture agreement to which the Company or any Company Subsidiary is a party that relates to the formation, creation, operation, management or control of any partnership or joint venture or any other alliance, shareholder, development, co-development or similar profit-sharing Contract. Each such Contract described in this Section 3.13, whether or not set forth in Section 3.13 of the Company Disclosure Schedule, clauses (i) through (xvii) above is referred to herein as a “Company Material Specified Contract”. .
(b) Each Company Agreement relating to of the ADS BusinessSpecified Contracts is valid, the Acquired Assets or the Retained Liabilities is valid binding and binding enforceable on the Company and each or a Company Subsidiary party thereto Subsidiary, as the case may be, and, to the knowledge of the Company’s knowledge, each other party thereto, as applicable, and is in full force and effect, and the Company and each Company Subsidiary has performed all obligations required except for such failures to be performed by it under each such Company Agreement andvalid, to the Company’s knowledge, each other party to each such Company Agreement has performed all obligations required binding or enforceable or to be performed by it under such Company Agreement, except in full force and effect as would not, or would not reasonably be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in have a Company Material Adverse Effect. None of There is no default under any Specified Contract by the Company or any Company Subsidiary knows ofor, or has received notice ofto the knowledge of the Company, any violation or default under (or any condition which other party thereto, and no event has occurred that with the passage lapse of time or the giving of notice or both would cause such constitute a violation of default thereunder by the Company or default under) any Company Agreement relating Subsidiary or, to the ADS Businessknowledge of the Company, the Acquired Assets or the Retained Liabilities any other party thereto, in each case except for violations or defaults that would not, or as would not reasonably be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in have a Company Material Adverse Effect. The Company has delivered to Since January 1, 2020 through the Purchaser or provided to the Purchaser for review, prior to the execution date of this Agreement, trueneither the Company nor any Company Subsidiary has received any written notice of a material breach or material default from a counterparty to any Top Supplier Contract or Top Customer Contract and no counterparty to any Top Supplier Contract or Top Customer Contract has notified the Company in writing (or, complete and correct copies of all to the knowledge of the Company Material Contracts Company, otherwise) that it intends to terminate or other Company Agreements relating to the ADS Business, the Acquired Assets not renew a Top Supplier Contract or the Retained Liabilities 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 or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contractsTop Customer Contract.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Global Blood Therapeutics, Inc.)
Contracts. Except as filed as exhibits to the Company SEC Documents filed prior to the date hereof, or as disclosed in Section 3.13 of the Company Disclosure Schedule, there is no Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities (a) any of the benefits to any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated Except as would not result in a Material Adverse Effect on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or (b) which, as of the date hereofCompany, (i) is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC), (ii) involves aggregate expenditures in excess of $50,000 per annum, (iii) involves aggregate expenditures in excess of $50,000 and was not entered into in the ordinary course of business, (iv) contains “take or pay” provisions applicable to the each Company or any Company Subsidiary, (v) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to the Company, any Company Subsidiary or any of the Company’s current or future affiliates, or which restricts the conduct of any line of business by the Company, any of the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct business, in each case in any respect, (vi) would reasonably be expected to prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions or (vii) is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded Asset. Each contract of the type described in this Section 3.13, whether or not set forth in Section 3.13 of the Company Disclosure Schedule, is referred to herein as a “Company Material Contract”. Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities Contract is valid and binding on the Company and each Company or its applicable Subsidiary party thereto and, to the Company’s knowledge, each other party thereto, as applicable, and in full force and effect, and, to the knowledge of the Company, is valid and binding on the other parties thereto, (ii) the Company and each Company Subsidiary of its Subsidiaries and, to the knowledge of the Company, each of the other parties thereto, has performed all obligations required to be performed by it to date under each such Company Agreement andContract and (iii) no event or condition exists which constitutes or, to after notice or lapse of time or both, would constitute a breach or default (including the Company’s knowledge, each other party to each such Company Agreement has performed all obligations required to be performed by it under such Company Agreement, except as would not, or would not be reasonably expected to, individually or in non-payment of fees) on the aggregate, (1) prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. None part of the Company or any Company Subsidiary knows ofof its Subsidiaries or, or has received notice ofto the knowledge of the Company, any violation or default other party thereto, under (or any condition which with the passage of time or the giving of notice would cause such a violation of or default under) Company Contract. No party to any Company Agreement relating to Contract has given the ADS Business, the Acquired Assets or the Retained Liabilities except for violations or defaults that would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger Company or any of its Subsidiaries written notice of its intention to cancel, terminate, materially change the other Transactions, (2) otherwise prevent scope of rights under or materially delay performance by fail to renew any Company Contract and neither the Company of nor any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. The Company has delivered Subsidiaries, nor, to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all knowledge of the Company, any other party to any Company Material Contracts or other Company Agreements relating to the ADS BusinessContract, the Acquired Assets or the Retained Liabilities required to be disclosed has repudiated in Section 3.13 writing any material provision thereof.
(b) Schedule 4.15(b) of the Company Disclosure ScheduleLetter sets forth a list as of the date of this Agreement of (i) all agreements or contracts regarding the acquisition of a Person or business, whether in the form of an asset purchase, merger, consolidation or otherwise (including any such agreement or contract that has closed but under which one or more of the parties has executory indemnification, earn-out or other liabilities) to which the Parent or Company is a party, (ii) all credit agreements, indentures, and other agreements related to any indebtedness for borrowed money of the Parent or Company, (iii) all joint venture or other similar agreements to which the Parent or Company is a party, (iv) all material lease agreements to which the Parent or Company is a party, (v) contracts under which the Parent or Company has advanced or loaned any other person any material amounts, (vi) guarantees of any obligations, (vii) contracts or groups of related contracts with the same party or group of parties the performance of which involves annual consideration in excess of $75,000 which are not filed cancelable by the Parent or Company, as exhibits the case may be, on thirty (30) days’ or less notice without premium or penalty, (viii) each supply agreement and each “single source” supply contract pursuant to which goods or materials that are material to the Parent or Company’s business are supplied to the Parent or Company, respectively, from an exclusive source, (ix) each exclusive sales representative or exclusive distribution contract to which the Parent or Company SEC Documents is a party, (x) agreements under which the Parent or Company has granted any person registration rights (including demand and piggy-back registration rights), (xi) all contracts or agreements purporting to restrict or prohibit the Parent or Company from engaging or competing in any business or engaging or competing in any business in any geographic area, (xii) all employment, consulting, retention, severance, change in control, non-competition, termination or indemnification agreements between the Parent or Company and any director or officer of the Parent or Company, respectively, or any other employee earning noncontingent cash compensation in excess of $75,000 per year, (xiii) all labor agreements, collective bargaining agreements or other labor related contracts (including work rules and practices) to which the Parent or Company is a party with respect to any labor union, labor organization, trade union, works council or similar organization or association of employees, (xiv) all licenses, consents to use, non-assertion agreements and coexistence agreements concerning Intellectual Property to which the Company is a party and material software used by the Company other than non-customized software subject to customary “shrink-wrap” or “click-through” type contracts (the “Material Contracts Licenses”), (xv) each contract to which the Company is a party with any Governmental Authority, (xvi) any contract which provides for termination, acceleration of payment or other special rights upon the occurrence of a change in control of the Parent or Company Agreements required and (xvii) all other contracts which are material to be disclosed in Section 3.13 the Parent or Company taken as a whole (collectively, the “Company Contracts”). The indebtedness for borrowed money of the Company (the “Company Debt”) is set forth on Schedule 4.15(b) of the Company Disclosure Letter, and the Company Debt in the aggregate does not exceed $11,000,000 in original principal amount.
(c) Each of the contracts set forth on Schedule filed as exhibits 4.15(c) of the Company Disclosure Letter has been assigned by the Parent to the Company SEC Documents are trueand Parent has received all required consents from other parties under all Company Contracts, complete and correct copies including, but not limited to those set forth on Schedule 4.15(c) of the Company Disclosure Letter, to assign such contracts.
Appears in 1 contract
Contracts. Except as filed as exhibits to the Company SEC Documents filed prior to the date hereof, or as disclosed in Section 3.13 3.16(a) of the Company Disclosure Schedule, there is no Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities (a) any of the benefits to any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or (b) which, Letter lists as of the date hereof, and the Company has made available to Parent and Merger Sub (or outside counsel) true, correct and complete copies of, all contracts, agreements, commitments, arrangements, licenses (including with respect to Intellectual Property), leases (including with respect to personal property) and other instruments to which the Company or any of its Subsidiaries is a party or by which the Company, any of its Subsidiaries or any of their respective properties or assets is bound that:
(i) is would be required to be filed by the Company as a “material contract” (as such term is defined in 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 or that if terminated or subject to a default by any party thereto would reasonably be expected to have a Material Adverse Effect;
(ii) contains covenants that limit the ability of the SECCompany or any of its Subsidiaries (or which, following the consummation of the Merger, could restrict or purports to restrict the ability of the Surviving Corporation or Parent): (A) to compete in any business or with any Person or in any geographic area or to sell, supply or distribute any service or product (including any non-compete, exclusivity or “most-favored nation” provisions), (iiB) involves aggregate expenditures to purchase or acquire an interest in excess any other entity, except, in each case, for any such contract that may be canceled without notice or penalty or other liability of $50,000 per annumthe Company or any of its Subsidiaries upon notice of 60 days or less or (C) to enforce its rights under any contract, agreement or applicable Law, including any covenant not to ▇▇▇;
(iii) provides for or governs the formation, creation, operation, management or control of any partnership or joint venture;
(iv) involves (A) the use or license by the Company or any of its Subsidiaries of any Intellectual Property owned by a third party (other than off-the-shelf or commercially available software), including any Intellectual Property used in any Company product (“Licensed Intellectual Property”) or (B) the joint development of products or technology with a third party;
(v) involves the license by the Company or any of its Subsidiaries of any of its Intellectual Property to any third party (other than as ancillary to a sale of products to customers, but including any Intellectual Property used in any Company product);
(vi) contains a covenant not to ▇▇▇ with a third party;
(vii) contains a cross-license of Intellectual Property with a third party;
(viii) involves any exchange traded or over the counter swap, forward, future, option, cap, floor or collar financial contract, or any other interest rate or foreign currency protection contract;
(ix) other than solely among wholly owned Subsidiaries of the Company, relates to (A) indebtedness or (B) conditional sale arrangements, or the sale, securitization or servicing of loans or loan portfolios;
(x) involves the acquisition or disposition, directly or indirectly (by merger or otherwise), of a business or capital stock or other equity interests of another Person;
(xi) by its terms calls for aggregate expenditures payments by the Company and its Subsidiaries or for the Company or any of its Subsidiaries under such contract of more than $100,000 in excess any one (1) year (including by means of $50,000 and was not entered into royalty payments) other than contracts made in the ordinary course of business, business consistent with past practice;
(ivxii) contains “take or pay” provisions applicable is with respect to any acquisition pursuant to which the Company or any Company Subsidiaryof its Subsidiaries has (x) any continuing indemnification obligations or (y) any “earn-out”, “milestone” or other contingent payment obligations;
(vxiii) contains any non-compete involves the supply of material components, materials, services or exclusivity provisions with respect to any line of business or geographic area with respect products to the Company, including without limitation, any Company Subsidiary tissues or donors or services related thereto;
(xiv) relates to the sale, distribution or marketing of any of the Company’s current products or future affiliatesservices;
(xv) relates to the sale, distribution or which restricts marketing by the conduct Company of any line third party’s products;
(xvi) is with a group purchasing organization (GPO), integrated delivery network (IDN) or other similar organization or network;
(xvii) is with a Governmental Entity or Government Official;
(xviii) is with a health care provider or health care professional; or
(xix) is entered into between any director or executive officer of business by the Company (or any of their Affiliates or Associates), on the one hand, and the Company or a Subsidiary of the Company, any of the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct business, in each case in any respect, (vi) would reasonably be expected to prohibit or materially delay the consummation of the Offer, the Merger or any of on the other Transactions or (vii) is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded Assethand. Each contract of the type described in this Section 3.13, whether or not set forth in Section 3.13 of the Company Disclosure Schedule, clauses (i) through (xix) above is referred to herein as a “Company Material Contract”. Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities is valid and binding on the Company and each Company Subsidiary party thereto and, to the Company’s knowledge, each other party thereto, as applicable, and in full force and effect, and the Company and each Company Subsidiary has performed all obligations required to be performed by it under each such Company Agreement and, to the Company’s knowledge, each other party to each such Company Agreement has performed all obligations required to be performed by it under such Company Agreement, except as would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. 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 Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities except for violations or defaults that would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. The Company has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all of the Company Material Contracts or other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities 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 or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contracts.
Appears in 1 contract
Sources: Merger Agreement (Osteotech Inc)
Contracts. Except as filed as exhibits to for those Contracts listed on --------- Schedule 3.1(l) (the Company SEC Documents filed prior to the date hereof, or as disclosed in Section 3.13 of the Company Disclosure Schedule, there is no Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities (a) any of the benefits to any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or (b) which"Applicable Contracts"), as of the date hereofof this Agreement, the Acquired Companies are not a party to:
(i) is a “material contract” (as such term is defined in Item 601(b)(10) any Contract relating to the borrowing or lending of Regulation S-K of $100,000 or more by the SEC), Acquired Companies;
(ii) involves aggregate expenditures in excess of $50,000 per annum, any written employment agreement with any person;
(iii) involves aggregate expenditures in excess of $50,000 and was any Contract not entered into made in the ordinary course of business, ;
(iv) contains “take any Contract for the sale of any of the Acquired Companies' assets (other than inventory sales in the ordinary course of business), or pay” provisions applicable the grant of any preferential rights to purchase any of the Company or any Company Subsidiary, Acquired Companies' assets;
(v) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to Contract that is terminable by the Company, any Company Subsidiary or any other party thereto upon the occurrence of the Company’s current or future affiliatestransactions contemplated hereby that, or which restricts the conduct of any line of business by the Companyif terminated, any of the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct business, in each case in any respect, would have a Material Adverse Effect; or
(vi) would reasonably be expected to prohibit any material Contract that contains a "change of control", "potential change of control", or materially delay the consummation of the Offer, the Merger other similar provisions or any material Contract for which the Acquisition will accelerate the time or amount of the payment or otherwise enhance any benefit due any other Transactions or (vii) is necessary for the conduct of the ADS Business person. Except as currently conducted but constitutes an Excluded Asset. Each contract of the type described disclosed in this Section 3.13, whether or not set forth in Section 3.13 of the Company Disclosure Schedule, is referred to herein as a “Company Material Contract”. Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities is valid and binding on the Company and each Company Subsidiary party thereto andSchedule 3.1(l), to the Company’s knowledge, each other party theretoknowledge of Seller, as applicableof the date of this Agreement, no party is in breach or default in any material respect under any Contract to which an Acquired Company is a party, including but not limited to, any Applicable Contract, except for such breaches and in full force and effect, and the Company and each Company Subsidiary has performed all obligations required defaults as to which requisite waivers or consents have been or will be performed by it under each such Company Agreement and, obtained prior to the Company’s knowledge, each other party to each such Company Agreement has performed all obligations required to be performed by it under such Company Agreement, except as would not, Closing Date or which would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in have a Company Material Adverse Effect. 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 Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities except for violations or defaults that would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. The Company has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete Complete and correct copies of all Applicable Contracts, together with all modifications and amendments thereto, have been delivered or made available to Purchaser; provided, that to the extent any of the Company Material such Contracts or are items -------- susceptible to duplication and are either (i) used in connection with any of Seller's businesses other Company Agreements than those relating to the ADS BusinessAcquired Companies or (ii) are required by law to be retained by Seller, Seller may deliver photostatic copies or other reproductions from which Seller may delete information concerning Seller's businesses other than those relating to the Acquired Companies. For purposes of this subsection 3.1(l), the Acquired Assets or the Retained Liabilities required term "Contract" shall not include Employee Benefit Plans referred 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 or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contracts3.1(n).
Appears in 1 contract
Contracts. Except as filed as exhibits to the Company SEC Documents filed prior to the date hereof, or as disclosed in Section 3.13 of the Company Disclosure Schedule, there is no Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities (a) any To the best knowledge of the benefits to Seller, SCHEDULE 4.15
(a) contains a complete and accurate list of each contract of the Seller (x) involving payments or other consideration in excess of (i) $25,000 in any party of which will be increased12-month period, or (ii) $50,000 over the vesting term of the benefits contract or (y) which is otherwise material to any party the Business (collectively, the "CONTRACTS"), except for purchase orders of which will be accelerated, by the occurrence Business. True and complete copies of each such written Contract (or written summaries of the terms of any such oral Contract or any oral modification of a written Contract) have been delivered to the Transactions or Purchaser and, in the value case of any each Assumed Contract, true and complete copies of each such Assumed Contract have been delivered to the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or Purchaser.
(b) which, Except as of the date hereofset forth on SCHEDULE 4.15(b), (i) is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K to the best knowledge of the SEC)Seller, no other party to any Contract is in default in any material respect thereunder nor does any condition exist that with notice or lapse of time or both would constitute such a default thereunder, and (ii) involves aggregate expenditures in excess of $50,000 per annumthe Seller has not received any notice, (iii) involves aggregate expenditures in excess of $50,000 and was not entered into in nor does the ordinary course of businessSeller otherwise have knowledge, (iv) contains “take that any party to any Contract intends to cancel, terminate or pay” provisions applicable refuse to renew such Contract or to exercise or decline to exercise any option or right thereunder, except to the Company or extent that any Company Subsidiary, (v) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to the Company, any Company Subsidiary or any such notice would be ineffective and unenforceable as a result of the Company’s current Chapter 11 Case; PROVIDED, HOWEVER, that Purchaser acknowledges that many Contract parties have indicated a willingness to abandon or future affiliates, or which restricts terminate certain Contracts if Seller cannot perform in a timely fashion such Contracts based on its financing and liquidity. To the conduct of any line of business by the Company, any best knowledge of the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct business, in each case in any respect, (vi) would reasonably be expected to prohibit or materially delay the consummation of the OfferSeller, the Merger or any of the other Transactions or (vii) is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded Asset. Each contract of the type described in this Section 3.13, whether or not set forth in Section 3.13 of the Company Disclosure Schedule, is referred to herein as a “Company Material Contract”. Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities is Contracts are valid and binding on the Company and each Company Subsidiary party thereto andSeller in accordance with their terms, except to the Company’s knowledge, each other party thereto, as applicable, and in full force and effect, and extent that the Company and each Company Subsidiary has performed all obligations required failure of any Contract to be performed by it under each such Company Agreement and, to the Company’s knowledge, each other party to each such Company Agreement has performed all obligations required to be performed by it under such Company Agreement, except as valid and binding would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay constitute a Seller Material Adverse Effect and, upon the consummation effectiveness of the Offer365 Order and the payment of the Cure Amounts, the Merger Seller will not be in default thereunder in any material respects except delay in performance due to lack of funding and liquidity.
(c) To the best knowledge of the Seller and subject to the entry and effectiveness of the 365 Order, all Contracts shall be, as of the Closing Date, valid and binding and enforceable against each other party thereto.
(d) To its best knowledge, the Seller has not waived any material right under any contract or other agreement of the type required to be set forth on any Schedule (in the understanding that the Purchaser acknowledges that, due to the Seller's limited liquidity, Seller has delayed performance of certain Contracts and agreements, which delays may give rise to a right of the other Transactions, (2) otherwise prevent contract parties to delay or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. 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 terminate such a violation of or default under) any Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities except for violations or defaults that would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. The Company has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all of the Company Material Contracts or other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities 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 or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contractsContracts).
Appears in 1 contract
Contracts. Except Neither the Company nor any of its Subsidiaries is a party to or bound by any contract, arrangement, commitment or understanding (whether written or oral) (i) which is an employment agreement, (ii) which, upon the consummation of the Offer or the Merger, will (either alone or upon the occurrence of any additional acts or events) result in any payment or benefits (whether of severance pay or otherwise) becoming due, or the acceleration or vesting of any rights to any payment or benefits, from Parent, Purchaser, the Company or the Surviving Corporation or any of their respective Subsidiaries to any officer, director, consultant or employee thereof, (iii) which is a material contract (as defined in Item 601(b)(10) of Regulation S-K of the SEC) to be performed after the date of this Agreement that has not been filed as exhibits to or incorporated by reference in the Company SEC Documents filed prior to Reports, (iv) which contains any material prohibition on the date hereofconduct of any business or line of business, or as disclosed in Section 3.13 any material limitation on the scope of business that may be conducted, by the Company Disclosure Scheduleof any of its Subsidiaries, there is no Company Agreement relating to including geographic limitations on the ADS BusinessCompany's or any of its Subsidiaries' activities or (v) (including any stock option plan, the Acquired Assets stock appreciation rights plan, restricted stock plan or the Retained Liabilities (astock purchase plan) any of the benefits to any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions transactions contemplated by this Agreement, or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or (b) which, as of the date hereof, (i) is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC), (ii) involves aggregate expenditures in excess of $50,000 per annum, (iii) involves aggregate expenditures in excess of $50,000 and was not entered into in the ordinary course of business, (iv) contains “take or pay” provisions applicable to the Company or any Company Subsidiary, (v) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to the Company, any Company Subsidiary or any of the Company’s current or future affiliates, or which restricts the conduct of any line of business transactions contemplated by the Company, any of the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct business, in each case in any respect, (vi) would reasonably be expected to prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions or (vii) is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded Assetthis Agreement. Each contract contract, arrangement, commitment or understanding of the type described in this Section 3.136.20(a), whether or not set forth in Section 3.13 6.20(a) of the Company Disclosure Schedule, is referred to herein as a “Company Material Contract”. Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities is valid and binding on the Company and each Company Subsidiary party thereto and, to the Company’s knowledge, each other party thereto, as applicable, and in full force and effect, and the Company and each Company Subsidiary has performed all obligations required to be performed by it under each such Company Agreement and, to the Company’s knowledge, each other party to each such Company Agreement has performed all obligations required to be performed by it under such Company Agreement, except as would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. 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 Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities except for violations or defaults that would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. "MATERIAL CONTRACT." The Company has delivered previously made available to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, Parent true, complete and correct copies of all of the Company each Material Contracts or other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities 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 or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contractsContract.
Appears in 1 contract
Sources: Merger Agreement (Southdown Inc)
Contracts. Except as filed as exhibits to the Company SEC Documents filed prior to the date hereof, or as disclosed in Section 3.13 of the Company Disclosure Schedule, there is no Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities (a) any of the benefits to any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or (b) which, as of the date hereof, (i) is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K Each of the SEC), (ii) involves aggregate expenditures in excess of $50,000 per annum, (iii) involves aggregate expenditures in excess of $50,000 and was not entered into in the ordinary course of business, (iv) contains “take or pay” provisions applicable to the Company or any Company Subsidiary, (v) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to the Company, any Company Subsidiary or any of the Company’s current or future affiliates, or which restricts the conduct of any line of business by the Company, any of the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct business, in each case in any respect, (vi) would reasonably be expected to prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions or (vii) is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded Asset. Each contract of the type described in this Section 3.13, whether or not set forth in Section 3.13 of the Company Disclosure Schedule, is referred to herein as a “Company Material Contract”. Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities Contracts is valid and binding on the Company and each Company Subsidiary of its Subsidiaries that is a party thereto (but, in each case subject to the Bankruptcy and Equity Exception) and, to the Knowledge of the Company’s knowledge, each other party thereto, as applicable, thereto and is in full force and effect, and the Company and each Company Subsidiary has performed all obligations required except for such failures to be performed by it under each such Company Agreement and, to the Company’s knowledge, each other party to each such Company Agreement has performed all obligations required valid and binding or to be performed by it under such Company Agreement, except as in full force and effect that would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in have a Company Material Adverse Effect. None There is no default under any Material Contract by the Company, any of its Subsidiaries or, to the Knowledge of the Company or any Company Subsidiary knows of, or has received notice ofCompany, any violation Partner FC that is a party thereto, and no event has occurred that with notice or default under (or any condition which with the passage lapse of time or both would constitute a default thereunder by the giving Company, any of notice would cause such a violation of or default under) any Company Agreement relating its Subsidiaries or, to the ADS BusinessKnowledge of the Company, any Partner FC that is a party thereto, or, to the Acquired Assets Knowledge of the Company, give any Person the right to accelerate, modify, terminate or the Retained Liabilities obtain changed terms thereunder, except for violations or defaults that in each case as would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in have a Company Material Adverse Effect. The Company To the Knowledge of the Company, (A) no counterparty to any Material Contract has delivered threatened to, or notified the Company, any of its Subsidiaries or any Partner FC in writing of any intention to, cancel any such Material Contract or reduce the frequency or volume of business under such Material Contract compared to the Purchaser frequency and volume of business during the twelve (12)-month period ended as of the date hereof, except as would not, individually or provided in the aggregate, have a Company Material Adverse Effect, except in the case of Material Contracts described in clause (ii) of the definition thereof, to which such exception shall not apply, and (B) as of the Purchaser for review, prior to the execution date of this Agreement, trueno Physician Practice has requested any other material change or modification to the relationship between such Physician Practice and the Company or its Subsidiaries. Neither the Company nor any of its Subsidiaries has been notified that a third party payor intends to materially reduce or adversely modify any reimbursement rates, terms or conditions.
(ii) Except for any Material Contract where the terms thereof prohibit its disclosure to any third party, complete and correct copies of all of the Company each Material Contracts or other Company Agreements relating Contract have been made available to the ADS Business, the Acquired Assets or the Retained Liabilities required to be disclosed in Parent. Section 3.13 3.1(q)(ii) of the Company Disclosure ScheduleLetter contains a correct and complete list, as of the date hereof, of each Material Contract which are is not filed listed as exhibits an exhibit to the Company SEC Documents and Company’s Annual Report on Form 10-K for the Company Material Contracts or other Company Agreements required to be disclosed in Section 3.13 of fiscal year ended December 31, 2011 filed with the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contractsSEC.
Appears in 1 contract
Contracts. Except as filed as exhibits to the Company SEC Documents filed prior to the date hereof, or as disclosed in Section 3.13 of the Company Disclosure Schedule, there is no Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities (a) any of the benefits to any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or (b) which, as As of the date hereofof this Agreement, (i) neither Biovail nor any Biovail Subsidiary is a party to any Contract required to be filed by Biovail as a “material contract” (as such term is defined in pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act (a “Filed Biovail Contract”) that has not been so filed.
(b) Section 3.14(b) of the SECBiovail Disclosure Letter sets forth, as of the date of this Agreement, a true and complete list of (i) non-competition Contracts or any other Contract containing terms that expressly (A) limit or otherwise restrict Biovail or the Biovail Subsidiaries or (B) to the Knowledge of Biovail, would, after the Effective Time, by its terms expressly limit or otherwise restrict the Combined Company from, in the case of either (A) or (B), (ii) involves aggregate expenditures engaging or competing in excess of $50,000 per annum, (iii) involves aggregate expenditures in excess of $50,000 and was not entered into in the ordinary course of business, (iv) contains “take or pay” provisions applicable to the Company or any Company Subsidiary, (v) contains any non-compete or exclusivity provisions with respect to any line of business or in any geographic area with respect or from developing or commercializing any compounds, any therapeutic area, class of drugs or mechanism of action, in a manner that would be reasonably likely to be material, in the case of (A), to Biovail and the Biovail Subsidiaries, taken as a whole, or in the case of (B), to the Combined Company, taken as a whole, (ii) each loan and credit agreement, note, debenture, bond, indenture or other similar agreement pursuant to which any Company Subsidiary Indebtedness of Biovail or any of the Company’s current Biovail Subsidiaries is outstanding or future affiliatesmay be incurred, other than any such agreement between or among Biovail and the wholly owned Biovail Subsidiaries, and (iii) each partnership, joint venture or similar agreement or understanding to which restricts the conduct of any line of business by the Company, any of the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary Biovail or any of the Company’s current Biovail Subsidiaries is a party relating to the formation, creation, operation, management or future affiliates may conduct businesscontrol of any partnership or joint venture material to Biovail and the Biovail Subsidiaries, in each case in any respect, (vi) would reasonably be expected to prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions or (vii) is necessary for the conduct of the ADS Business taken as currently conducted but constitutes an Excluded Asseta whole. Each contract agreement, understanding or undertaking of the type described in this Section 3.13, whether or not set forth in Section 3.13 of the Company Disclosure Schedule, 3.14(b) and each Filed Biovail Contract is referred to herein as a “Company Biovail Material Contract”. Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities is valid and binding on the Company and each Company Subsidiary party thereto and, to the Company’s knowledge, each other party thereto, as applicable, and in full force and effect, and the Company and each Company Subsidiary has performed all obligations required to be performed by it under each such Company Agreement and, to the Company’s knowledge, each other party to each such Company Agreement has performed all obligations required to be performed by it under such Company Agreement, except as would not, or would not be reasonably expected to.
(c) Except for matters which, individually or in the aggregate, have not had and would not reasonably be expected to have a Biovail Material Adverse Effect,
(1i) prohibit each Biovail Material Contract (including, for purposes of this Section 3.14(c), any Contract entered into after the date of this Agreement that would have been a Biovail Material Contract if such Contract existed on the date of this Agreement) is a valid, binding and legally enforceable obligation of Biovail or materially delay the consummation one of the OfferBiovail Subsidiaries, as the Merger case may be, and, to the Knowledge of Biovail, 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 Biovail Material Contract is in full force and effect and (iii) none of Biovail or any of the other Transactions, Biovail Subsidiaries is (2) otherwise prevent with or materially delay performance by the Company without notice or lapse of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. None of the Company or any Company Subsidiary knows oftime, or has received notice of, any violation both) in breach or default under any such Biovail Material Contract and, to the Knowledge of Biovail, no other party to any such Biovail Material Contract is (with or any condition which with the passage without notice or lapse of time time, or the giving of notice would cause such a violation of both) in breach or default under) any Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities except for violations or defaults that would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. The Company has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all of the Company Material Contracts or other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities 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 or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contractsthereunder.
Appears in 1 contract
Sources: Merger Agreement (Valeant Pharmaceuticals International)
Contracts. Except as filed as exhibits to the Company SEC Documents filed prior to the date hereof, or as disclosed in Section 3.13 3.01(i) of the Company Disclosure Schedule, there is no Company Agreement relating Letter sets forth (with specific reference to the ADS Business, the Acquired Assets or the Retained Liabilities (asubsection of this Section 3.01(i) any of the benefits to any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11such Contract relates) or (b) whicha complete and correct list, as of the date hereofof this Agreement, of:
(i) is (A) each Contract that would be required to be filed, but has not been filed, by the Company as a “material contract” (as such term is defined in pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or (B) any Contract with any current or former employee, director or officer of the SEC)Company or any of its Subsidiaries that (1) contains a non-competition, employee non-solicitation, or customer non-solicitation or non-interference provision, other than where the Company or its Subsidiaries are the beneficiary of such restrictive covenant; (2) relate to employees in the United States and cannot be terminated by the Company or any of its Subsidiaries “at will”; (3) relate to employees outside the United States and has employment termination provisions that are materially more restrictive on the Company than Applicable Law except where such provisions are consistent with practice in the local employment market for individuals of comparable role and responsibilities or (4) contains a retention, change in control, change of control, transaction bonus, severance, golden parachute or similar provision;
(ii) involves aggregate expenditures each Contract that restricts the ability of the Company or any of its Subsidiaries to engage or compete in excess any business of $50,000 per annumthe Company or to compete with any person in any geographical area, or that by its terms restricts, the persons to whom the Company or any of its Subsidiaries may sell products or deliver services or that otherwise prohibits or limits the right of the Company or its Subsidiaries to sell, distribute or manufacture any Company Products or to purchase or otherwise obtain any software, components, parts or subassemblies;
(iii) involves each loan and credit agreement, mortgage, note, debenture, bond, indenture and other similar Contract pursuant to which any indebtedness for borrowed money of the Company or any of its Subsidiaries is outstanding or may be incurred, and each Contract or instrument pursuant to which indebtedness for borrowed money may be incurred or is guaranteed by the Company or any of its Subsidiaries, other than any such Contract solely between or among any of the Company and any of its Subsidiaries;
(iv) each Contract under which the Company or any of its Subsidiaries paid more than $750,000 during the twelve (12) month period ended March 31, 2015 and, to the Company’s Knowledge, each Contract under which the Company would expect to make future payments exceeding $1,000,000 in the aggregate;
(v) [INTENTIONALLY OMITTED]
(vi) each Contract for the acquisition or disposition by the Company or any of its Subsidiaries of properties or assets for, in each case, aggregate expenditures consideration of more than $500,000, except for acquisitions of supplies and acquisitions and dispositions of inventory in excess the ordinary course of $50,000 business;
(vii) each Contract that provides for interest rate caps, collars or swaps, currency hedging or any other similar agreement to which the Company or any of its Subsidiaries is a party;
(viii) each Contract that relates to the voting or registration for sale under the Securities Act of any securities of the Company, other than the Voting Agreements;
(ix) each Contract that provides for the Company or any of its Subsidiaries to indemnify or hold harmless any employee, director or officer of the Company or any of its Subsidiaries, except for form indemnification agreements entered into by the Company’s directors and was not officers, which form has been provided to Parent;
(x) each Contract providing for the formation, creation, operation or management, with any third party, of any joint venture, strategic alliance, or partnership, other than reseller agreements entered into in the ordinary course of businessbusiness pursuant to the Company’s reseller program, and other than the “Blue Orbit” marketing program;
(ivxi) each Contract that grants any put option, call option, right of first refusal or right of first offer or similar right with respect to any material assets or businesses of the Company and its Subsidiaries;
(xii) each Contract that contains (A) a “take most favored nation” or pay” provisions applicable (B) other term providing preferential pricing or treatment to a third party;
(xiii) each Contract with or binding upon the Company or any Company Subsidiary, (v) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to the Company, any Company Subsidiary its Subsidiaries or any of their respective properties or assets that is of the type that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act;
(xiv) each Contract that represents any commitment or agreement to enter into any of the foregoing;
(xv) each Contract between the Company or any of its Subsidiaries and any of the top twenty (20) third-party customers (as measured by revenue) of the Company and the Company’s current Subsidiaries, taken as a whole, for the twelve-month period ended March 31, 2015 (“Major Customers”); and
(xvi) each Contract between the Company or future affiliates, or which restricts the conduct any of any line of business by the Company, its Subsidiaries and any of the Company’s current or future affiliates, any top twenty (20) third-party suppliers (as measured by amounts paid to such suppliers) of the Company Subsidiary or any geographic area in which the Company, any Company Subsidiary or any of and the Company’s current or future affiliates may conduct businessSubsidiaries, in each case in any respecttaken as a whole, (vi) would reasonably be expected to prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions or (vii) is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded Assettwelve-month period ended March 31, 2015 (“Major Suppliers”). Each contract of the type such Contract described in this Section 3.13clauses (i) through (xvi) above, whether or not set forth in Section 3.13 of together with any other Contract (A) that was filed by the Company Disclosure Schedulein its Annual Report on Form 10-K on March 27, 2015, or that would be required to be filed by the Company in its next Quarterly Report on Form 10-Q, as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K and (B) any Real Property Lease, is referred to herein as a “Company Material Specified Contract”. The Company has heretofore delivered or made available to Parent correct and complete copies of each Specified Contract, together with any and all amendments and supplements thereto and any “side letter” or similar documentation relating thereto. Each Company Agreement relating to of the ADS Business, the Acquired Assets or the Retained Liabilities Specified Contracts is valid and binding on the Company and each or the Subsidiary of the Company Subsidiary party thereto and, to the Knowledge of the Company’s knowledge, each other party thereto, as applicable, and is in full force and effect, and the Company and each Company Subsidiary has performed all obligations required except for such failures to be performed by it under each such Company Agreement and, to the Company’s knowledge, each other party to each such Company Agreement has performed all obligations required valid and binding or to be performed by it under such Company Agreement, except as would not, or in full force and effect that are not and would not reasonably be reasonably expected toto be, individually or in the aggregate, (1) prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by material to the Company of and its Subsidiaries, taken as a whole. There is no default under any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. None of Specified Contract by the Company or any Company Subsidiary knows ofof its Subsidiaries or, or to the Knowledge of the Company, by any other party thereto, and no event has received notice of, any violation or default under (or any condition which occurred that with the passage lapse of time or the giving of notice or both would cause such constitute a violation default thereunder by the Company or any of or default under) any Company Agreement relating its Subsidiaries or, to the ADS BusinessKnowledge of the Company, the Acquired Assets or the Retained Liabilities by any other party thereto, in each case except for violations or such defaults and events that would not, or are not and would not reasonably be reasonably expected toto be, individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by material to the Company of and its Subsidiaries, taken as a whole. Neither the Company nor any of its material obligations Subsidiaries has received any written notice of termination or cancellation under this Agreement or (3) result in a Company Material Adverse Effect. The Company has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all of the Company Material Contracts or other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities 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 or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contractsany Specified Contract.
Appears in 1 contract
Sources: Merger Agreement (Ciena Corp)
Contracts. Except As of the date hereof, except as filed as exhibits to the Company Parent SEC Documents filed prior to the date hereof, or and as disclosed in Section 3.13 2.11 of the Company Parent Disclosure Schedule, there none of Parent or any of its Subsidiaries is no Company Agreement relating a party to the ADS Business, the Acquired Assets or the Retained Liabilities bound by any Contract that (a) any of the benefits to any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or (b) which, as of the date hereof, (i) is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of under the SECSecurities Act), (ii) involves aggregate expenditures in excess of $50,000 per annum, (iii) involves aggregate expenditures in excess of $50,000 and was not entered into in the ordinary course of business, (iv) contains “take or pay” provisions applicable to the Company or any Company Subsidiary, (vb) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to the Company, any Company Subsidiary Parent or any of the Company’s current or future affiliatesits Subsidiaries, or which restricts the conduct of any line of business by the Company, Parent or any of the Company’s current or future affiliates, any Company Subsidiary its Subsidiaries or any geographic area in which the Company, any Company Subsidiary Parent or any of the Company’s current or future affiliates its Subsidiaries may conduct business, in each case in any respect, material respect or (vic) would reasonably be expected to prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions or (vii) is necessary for the conduct transactions contemplated by this Agreement. As of the ADS Business as currently conducted but constitutes an Excluded Asset. Each contract date hereof, each Contract of the type described in this Section 3.132.11, whether or not set forth in Section 3.13 2.11 of the Company Parent Disclosure Schedule, is referred to herein as a “Company Parent Material Contract”. .” Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities Parent Material Contract is valid and binding on the Company Parent and each Company Subsidiary of its Subsidiaries party thereto and, to the Company’s knowledge, and each other party thereto, as applicable, and in full force and effect, and the Company Parent and each Company Subsidiary of its Subsidiaries has in all respects performed all obligations required to be performed by it to the date hereof under each such Company Agreement and, to the Company’s knowledge, Parent Material Contract and each other party to each such Company Agreement Parent Material Contract has in all respects performed all obligations required to be performed by it under such Company AgreementParent Material Contract, except as would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in have a Company Parent Material Adverse Effect. None As of the Company date hereof, none of Parent or any Company Subsidiary knows of, or of its Subsidiaries has received any written notice of, 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 Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities except for violations or defaults that would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Parent Material Adverse EffectContract. The Company Parent has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all of the Company Material Contracts or other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities required to be disclosed in Section 3.13 of the Company Disclosure Schedule, which are not filed as exhibits made available to the Company SEC Documents true and the Company Material Contracts or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contractseach Parent Material Contract.
Appears in 1 contract
Contracts. (a) Except as filed as exhibits to the Company SEC Documents filed prior to the date hereof, or as disclosed in Section 3.13 hereof (copies of the Company Disclosure Schedulewhich have been made available to Parent), there is no Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities (a) any of the benefits to any party of which will be materially increased, or the vesting of the material benefits to any party of which will be materially accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) transactions contemplated by this Agreement or (b) which, as of the date hereof, (i) is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC), (ii) involves aggregate expenditures in excess of $50,000 per annum500,000, (iii) involves aggregate expenditures in excess of $50,000 and was not entered into in the ordinary course of business, (iv) that contains “take or pay” provisions applicable to the Company or any Company Subsidiary, (v) that contains any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to the Company, Company or any Company Subsidiary or any of the Company’s current or future affiliatesSubsidiary, or which restricts the conduct of any line of business by the Company, any of the Company’s current Company or future affiliates, any Company Subsidiary or any geographic area in which the Company, Company or any Company Subsidiary or any of the Company’s current or future affiliates may conduct conducts business, in each case in any respect, or (vi) which would reasonably be expected to prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions or (vii) is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded Assettransactions contemplated by this Agreement. Each contract of the type described above in this Section 3.135.13, whether or not set forth in Section 3.13 5.13 of the Company Disclosure Schedule, is referred to herein as a “Company Material Contract”. .” Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities Material Contract is valid and binding on the Company and each Company Subsidiary party thereto and, to the knowledge of the Company’s knowledge, each other party thereto, as applicable, and in full force and effect (except that (x) such enforcement may be subject to applicable bankruptcy, insolvency or other similar laws, now or hereafter in effect, affecting creditors’ rights generally and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought), and the Company and each Company Subsidiary has performed in all material respects all obligations required to be performed by it under each such Company Agreement Material Contract and, to the knowledge of the Company’s knowledge, each other party to each such Company Agreement Material Contract has performed in all material respects all obligations required to be performed by it under such Company AgreementMaterial Contract, except as would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by be reasonably expected to be material to the Company of any of its material obligations under this Agreement or (3) result in and the Company Subsidiaries, taken as a Company Material Adverse Effectwhole. 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 Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities Material Contract except for violations or defaults that would not, or would not be reasonably expected to, individually or in the aggregate, be reasonably expected to, (1) prohibit prevent or materially delay consummation of the Offer, the Merger or any of the other Transactionstransactions contemplated by this Agreement, or (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in have a Company Material Adverse Effect. .
(b) The Company has delivered or made available to the Purchaser Parent or provided to the Purchaser Parent for review, prior to the execution of this Agreement, true, true and complete and correct copies of all of the Company Material Contracts or other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities required to be disclosed in Section 3.13 5.13 of the Company Disclosure Schedule, which are not filed as exhibits to the Company SEC Documents and the Company Material Contracts or other Company Agreements required to be disclosed in Section 3.13 5.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, true and complete and correct copies of such contracts.
Appears in 1 contract
Contracts. Except As of the date hereof, except as filed as exhibits to the Company SEC Documents filed prior to the date hereofS-1, or as disclosed in Section 3.13 4.13 of the Company Disclosure Schedule, there is no none of the Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities (a) any of the benefits its Subsidiaries is a party to or bound by any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions Contract that (except as disclosed pursuant to Section 3.11) or (b) which, as of the date hereof, (i1) is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC), (ii) involves aggregate expenditures in excess of $50,000 per annum, (iii) involves aggregate expenditures in excess of $50,000 and was not entered into in the ordinary course of business, (iv) contains “take or pay” provisions applicable to the Company or any Company Subsidiary, (v2) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to the Company, any Company Subsidiary or any of the Company’s current or future affiliatesits Subsidiaries, or which restricts the conduct of any line of business by the Company, Company or any of the Company’s current or future affiliates, any Company Subsidiary its Subsidiaries or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current or future affiliates its Subsidiaries may conduct business, in each case in any respect, material respect or (vi3) which would reasonably be expected to prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions or (vii) is necessary for the conduct transactions contemplated by this Agreement. As of the ADS Business as currently conducted but constitutes an Excluded Asset. Each contract date hereof, each Contract of the type described in this Section 3.134.13, whether or not set forth in Section 3.13 4.13 of the Company Disclosure Schedule, is referred to herein as a “Company Material Contract”. .” Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities Material Contract is valid and binding on the Company and each Company Subsidiary of its Subsidiaries party thereto and, to the Company’s knowledge, each other party thereto, as applicable, and in full force and effect, and the Company and each Company Subsidiary of its Subsidiaries has in all respects performed all obligations required to be performed by it to the date hereof under each such Company Agreement Material Contract and, to the Company’s knowledge, each other party to each such Company Agreement Material Contract has in all respects performed all obligations required to be performed by it under such Company AgreementMaterial Contract, except as would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in have a Company Material Adverse Effect. None As of the date hereof, none of the Company or any Company Subsidiary knows of, or of its Subsidiaries has received any written notice of, 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 Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities except for violations or defaults that would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. The Company has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all of the Company Material Contracts or other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities 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 or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contractsContract.
Appears in 1 contract
Sources: Merger Agreement (Corgentech Inc)
Contracts. Except as filed as exhibits (a) Schedule 4.14(a) sets forth, by reference to the applicable subsection below, each Contract to which a NWMI Acquired Company SEC Documents filed prior to is a party or by which a NWMI Acquired Company or its assets or properties is or may be bound, that is:
(i) any partnership, joint venture or similar Contract in effect or that includes rights or Liabilities of any NWMI Acquired Company which have not expired or terminated as of the date hereof;
(ii) any Contract (A) containing a covenant not to compete that impairs the ability of a NWMI Acquired Company to freely conduct its business in any geographic area or with any Person, (B) that restricts the development, manufacture, marketing, distribution or as disclosed sale of any products or services of a NWMI Acquired Company, (C) that restricts or prohibits the transaction of business with any other Person (including by restricting the solicitation of business with any other Person) by a NWMI Acquired Company, (D) that restricts or limits the entering into any market or line of business by a NWMI Acquired Company or any of its Employees or representatives, (E) prohibiting in Section 3.13 any respect a NWMI Acquired Company or its business from freely soliciting or hiring any Person, (F) providing for “meet competition,” “most favored nation” pricing terms or similar rights in favor of the Company Disclosure Schedulea Third Party or (G) establishing an exclusive sale or purchase obligation with respect to any Person, there is no Company Agreement product or any geographic location;
(iii) any Contract that, if terminated or not renewed, would reasonably be expected to have a Material Adverse Effect on a NWMI Acquired Company;
(iv) any Contract relating to the ADS Businessacquisition or disposition of any business (whether by merger, sale of stock, sale of assets, or otherwise) that includes rights or Liabilities of any NWMI Acquired Company which have not expired or terminated as of the Acquired Assets or the Retained Liabilities date hereof;
(av) any Contract relating to Debt in excess of the benefits to (or that could result in Liability greater than) $10,000;
(vi) any party of which will be increasedmanagement service, consulting, or any other similar type of Contract;
(vii) any Contract (or group of related Contracts), other than a customer Contract, involving payments by or to a NWMI Acquired Company of more than $10,000 in any consecutive 12‑month period;
(viii) any lease, sublease, rental or occupancy agreement, installment and conditional sale agreement (other than NWMI Real Property Leases);
(ix) any Contract with any distributor, agency or sales representative for the vesting of the benefits to any party of which will be accelerated, by the occurrence marketing and selling of any of the Transactions a NWMI Acquired Company’s products or the value of services;
(x) any of the benefits to any party of which will be calculated Contract with a Person identified on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11Schedule 4.17(a) or (b) which, as or any Third Party Payor;
(xi) any Contract with any Seller or any Affiliate of a Seller (other than employment Contracts);
(xii) any Contract that would prevent consummation of the date hereofTransactions, compliance by a NWMI Acquired Company or a NWMI Seller with the terms, conditions, and provisions of this Agreement or the Ancillary Agreements, or the continued operation of the business of the NWMI Acquired Companies after the Closing Date on substantially the same basis as operated prior to the Closing; or
(xiii) any Contract with any labor union, labor organization or collective bargaining unit. Each Contract of the type described in this Section 4.14(a) is referred to in this Agreement as a “NWMI Material Contract.”
(b) The NWMI Sellers have made available to Holdco true, correct and complete copies of each written NWMI Material Contract and correct and reasonably detailed summaries of each oral NWMI Material Contract. All NWMI Material Contracts are valid and binding Contracts of a NWMI Acquired Company, are in full force and effect and are enforceable against each party thereto in accordance with the terms thereof, subject to the Bankruptcy and Equity Exception. There does not exist under any NWMI Material Contract any violation, breach or event of default, on the part of a NWMI Acquired Company or, to the Knowledge of the NWMI Sellers, any other party thereto. To the Knowledge of the NWMI Sellers, there is no event, occurrence, condition, or act (including the consummation of the Transactions) that, with the giving of notice or the passage of time (or both), is reasonably likely to become a default or event of default on the part of a NWMI Acquired Company under any NWMI Material Contract.
(c) Except as set forth on Schedule 4.14(c):
(i) is no NWMI Acquired Company has received in writing any notice from any Third Party Payor that any Third Party Payor has stopped or may stop, materially decrease the rate of, or materially change the terms (whether related to payment, price or otherwise) with respect to the making of payments for products or services provided by the NWMI Acquired Companies (whether as a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K result of the SECconsummation of the Transactions or otherwise), and, to the Knowledge of the NWMI Sellers, there is no set of facts, event, occurrence, condition, or act (including the consummation of the Transactions), that is reasonably likely to cause any Third Party Payor to do so. To the Knowledge of the NWMI Sellers, there are no material disputes between any NWMI Acquired Company and any Third Party Payor;
(ii) involves aggregate expenditures the Program Agreements to which any NWMI Acquired Company is party and the NWMI Material Contracts with Third Party Payors constitute valid, binding and enforceable agreements and are in excess full force and effect, subject to the Bankruptcy and Equity Exception. No NWMI Acquired Company is in material breach under any Program Agreement or under any NWMI Material Contract with any Third Party Payor and, to the Knowledge of $50,000 per annumthe NWMI Sellers, the other parties thereto are not in material breach thereunder. No party to a Program Agreement or NWMI Material Contract with any Third Party Payor or other Government Entity has threatened in writing or orally by an employee of a Government Entity revocation, suspension, termination, probation, restriction, limitation or nonrenewal affecting any Program Agreement or NWMI Material Contract with any Third Party Payor; and
(iii) involves aggregate expenditures except in excess the course of $50,000 negotiation and was not entered into renegotiation of terms in the ordinary course of business, no NWMI Acquired Company has received any notice in writing from any third party supplier that any third party supplier has stopped or has an intention to stop, materially decrease the rate of, or materially change the terms (ivwhether related to payment, price or otherwise) contains “take or pay” provisions applicable to the Company or any Company Subsidiary, (v) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to the Company, any Company Subsidiary making of payments for products or any services supplied to the NWMI Acquired Companies (whether as a result of the Company’s current or future affiliates, or which restricts the conduct of any line of business by the Company, any of the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct business, in each case in any respect, (vi) would reasonably be expected to prohibit or materially delay the consummation of the OfferTransactions or otherwise), and to the Merger or any Knowledge of the other Transactions or (vii) NWMI Sellers, there is necessary for the conduct no set of the ADS Business as currently conducted but constitutes an Excluded Asset. Each contract of the type described in this Section 3.13facts, whether or not set forth in Section 3.13 of the Company Disclosure Scheduleevent, is referred to herein as a “Company Material Contract”. Each Company Agreement relating to the ADS Businessoccurrence, the Acquired Assets or the Retained Liabilities is valid and binding on the Company and each Company Subsidiary party thereto and, to the Company’s knowledge, each other party thereto, as applicable, and in full force and effect, and the Company and each Company Subsidiary has performed all obligations required to be performed by it under each such Company Agreement and, to the Company’s knowledge, each other party to each such Company Agreement has performed all obligations required to be performed by it under such Company Agreement, except as would notcondition, or would not be reasonably expected to, individually or in the aggregate, act (1) prohibit or materially delay including the consummation of the OfferTransactions), that is reasonably likely to cause any third party supplier to do so. To the Merger or Knowledge of the NWMI Sellers, there are no material disputes between any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of NWMI Acquired Companies and any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. 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 Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities except for violations or defaults that would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. The Company has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all of the Company Material Contracts or other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities 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 or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contractsthird party supplier.
Appears in 1 contract
Sources: Transaction Agreement (Great Elm Capital Group, Inc.)
Contracts. Except as filed as exhibits to the Company SEC Documents filed prior to the date hereof, or as disclosed in Section 3.13 of the Company Disclosure Schedule, there is no Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities (a) any Section 6.10(a) of the benefits to any party of which will be increased, or the vesting Cargill Disclosure Schedule contains a correct and complete list of the benefits to any party of which will be accelerated, by the occurrence of any following Contracts of the Transactions or ▇▇▇▇▇▇▇ Fertilizer Businesses (each, a “Cargill Material Contract” and, collectively, the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or (b) which, as of the date hereof, “Cargill Material Contracts”): (i) is all Contracts with a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC), (ii) involves aggregate expenditures in excess of $50,000 per annum, (iii) involves aggregate expenditures in excess of $50,000 and was not entered into in the ordinary course of business, (iv) contains “take lasting for one year or pay” provisions applicable to the Company less which requires or any Company Subsidiary, (v) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to the Company, any Company Subsidiary or any of the Company’s current or future affiliates, or which restricts the conduct of any line of business by the Company, any of the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct business, in each case in any respect, (vi) would reasonably be expected to prohibit involve the payment of more than $10,000,000; and (ii) all Contracts with a term lasting for more than one year which requires or materially delay involves the consummation payment of more than $5,000,000 during any twelve-month period thereunder. True and complete copies of all such Cargill Material Contracts have been delivered or have been made available by Cargill to IMC. Each of the OfferCargill Material Contracts is in full force and effect and constitutes the legal, the Merger or any of the other Transactions or (vii) is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded Asset. Each contract of the type described in this Section 3.13, whether or not set forth in Section 3.13 of the Company Disclosure Schedule, is referred to herein as a “Company Material Contract”. Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities is valid and binding on the Company and each Company Subsidiary party thereto and, to the Company’s knowledge, each other party theretoobligation of Cargill or its Subsidiaries, as applicable, and is enforceable in full force and effect, and the Company and each Company Subsidiary has performed all obligations required to be performed by it under each such Company Agreement andaccordance with its respective terms. Neither Cargill nor any of its Subsidiaries nor, to the Company’s knowledgeknowledge of Cargill, each any other party to each such Company Agreement has performed all obligations required to be performed by it is in breach of or in default under such Company Agreementany Cargill Material Contract, except for such breaches and defaults as would not, or have not had and would not reasonably be reasonably expected toto have, individually or in the aggregate, a Cargill Material Adverse Effect.
(1b) prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of Neither Cargill nor any of its Subsidiaries is party to any agreement containing any provision or covenant directly or explicitly limiting in any material obligations under this Agreement respect the ability of the ▇▇▇▇▇▇▇ Fertilizer Businesses to (i) sell any products or services of or to any other Person, (ii) engage in any line of business or (3iii) result in a Company Material Adverse Effectcompete with or to obtain products or services from any Person or limiting the ability of any Person to provide products or services to the ▇▇▇▇▇▇▇ Fertilizer Businesses. None For purposes of this Section 6.10(b), “products” shall mean any product which is mined or manufactured by Cargill or any Subsidiary which is offered for sale to Third Parties whether domestically or internationally as part 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 Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities except for violations or defaults that would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. The Company has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all of the Company Material Contracts or other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities 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 or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contracts▇▇▇▇▇▇▇ Fertilizer Businesses.
Appears in 1 contract
Sources: Merger Agreement (Mosaic Co)
Contracts. Except as From the last day to which the Company's most recently filed as exhibits to the Company SEC Documents filed prior Form 10-K or Form 10-Q relates, whichever is later, to the date hereof, neither the Company nor any of its Subsidiaries has entered into any contract, agreement or as other document or instrument (i) (other than this Agreement) that is required to be filed with the SEC that has not been so filed or any material amendment or modification to, or waiver under, any such contract, (ii) that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act, or (iii) related to voting or governing how any shares of Company Common Stock shall be voted (the documents referred to in clauses (i) through (iii), together with all contracts, agreements or other documents or instruments listed in Item 14 of the Company's Annual Report on Form 10-K most recently filed with the SEC which are in effect on the date hereof or listed on Section 3.13 3.1(s) of the Company Disclosure Schedule, there is no are collectively referred to as the "MATERIAL CONTRACTS"). The Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities (a) and its Subsidiaries have not received any of the benefits to any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence notice of any of the Transactions or the value of default under any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or (b) which, as of the date hereof, (i) is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC), (ii) involves aggregate expenditures in excess of $50,000 per annum, (iii) involves aggregate expenditures in excess of $50,000 and was not entered into in the ordinary course of business, (iv) contains “take or pay” provisions applicable to Material Contract either by the Company or any Company Subsidiary, (v) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to the Company, any Company Subsidiary or any of the Company’s current or future affiliates, or its Subsidiaries which restricts the conduct of any line of business by the Company, any of the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct business, in each case in any respect, (vi) would reasonably be expected to prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions or (vii) is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded Asset. Each contract of the type described in this Section 3.13, whether or not set forth in Section 3.13 of the Company Disclosure Schedule, is referred to herein as a “Company Material Contract”. Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities is valid and binding on the Company and each Company Subsidiary party thereto and, to the Company’s knowledge, each or by any other party thereto, as applicable, and in full force and effect, and the Company and each Company Subsidiary has performed all obligations required to be performed by it under each such Company Agreement and, to the Company’s knowledge, each other party to each such Company Agreement has performed all obligations required to be performed by it under such Company Agreement, except as would not, or would not be reasonably expected tothereto which would, individually or in the aggregate, (1) prohibit or materially delay reasonably be expected to have a Material Adverse Effect on the consummation Company, and to the knowledge of the OfferCompany, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. None of the Company or any Company Subsidiary knows of, or no event has received notice of, any violation or default under (or any condition which occurred that with the passage lapse of time or the giving of notice or both would cause constitute such a violation default by the Company or such Subsidiary or any other party thereto. Neither the Company nor any of its Subsidiaries is subject to or default under) bound by any Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities except for violations or defaults that would notexclusive dealing arrangement, or would not be reasonably expected toother contract or arrangement, individually or in containing covenants which materially limit the aggregate, (1) prohibit or materially delay consummation ability of the Offer, the Merger Company or any of the other Transactionsits Subsidiaries to compete in any line of business or with any person or which involve any material restriction of geographical area in which, (2) otherwise prevent or materially delay performance method by which, the Company of or any of its material obligations under this Agreement Subsidiaries may carry on its business (other than as may required by Law or (3) result in a Company Material Adverse Effectany applicable Governmental Entity). The Company has delivered aggregate amounts payable to the Purchaser or provided Executives pursuant to Sections 7(a)(i)(A), 7(a)(i)(C)(ii) and 9 of the Purchaser for review, prior Employment Agreements between the Company and each of the Executives shall not exceed $23 million. The aggregate amounts payable to the execution of this Agreement, true, complete and correct copies of all other employees of the Company Material Contracts or other its Subsidiaries pursuant to Sections 4(a), 4(b)(i), 4(b)(iii) and 6 of the Continuity Agreements between the Company Agreements relating and any such employee and the aggregate amounts payable pursuant to the ADS Business, the Acquired Assets or the Retained Liabilities required to be disclosed in Section 3.13 Change of Control Severance Plan for Certain Covered Executives of the Company Disclosure Schedule, which are would not filed as exhibits reasonably be expected to have a Material Adverse Effect with respect to the Company SEC Documents and the Company Material Contracts or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contractsCompany.
Appears in 1 contract
Sources: Merger Agreement (Franchise Finance Corp of America)
Contracts. (a) Except as filed as exhibits to the Company Filed Parent SEC Documents filed prior to the date hereof, Filings or as disclosed in Section 3.13 4.8 of the Company Parent Disclosure Schedule, there none of Parent or any of its Subsidiaries is no Company Agreement relating a party to or bound by any Contract which, as of the ADS Business, date hereof (i) would prohibit or materially delay the Acquired Assets consummation of the Merger or any of the Retained Liabilities other transactions contemplated by this Agreement; (aii) is a "material contract" (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC); (iii) any of the benefits to any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions transactions contemplated by this Agreement or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) transactions contemplated by this Agreement; or (b) which, as of the date hereof, (i) is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC), (ii) involves aggregate expenditures in excess of $50,000 per annum, (iii) involves aggregate expenditures in excess of $50,000 and was not entered into in the ordinary course of business, (iv) contains “take or pay” provisions applicable relates to the Company or any Company Subsidiary, (v) contains any non-compete or exclusivity provisions with respect registration of securities. Each Contract to any line of business or geographic area with respect to the Company, any Company Subsidiary which Parent or any of the Company’s current its Subsidiaries is a party or future affiliates, or by which restricts the conduct of any line of business by the Company, any of the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary Parent or any of the Company’s current or future affiliates may conduct business, in each case in any respect, (vi) would reasonably be expected to prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions or (vii) its Subsidiaries is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded Asset. Each contract bound of the type described in this Section 3.134.8, whether or not set forth in Section 3.13 4.8 of the Company Parent Disclosure Schedule, is referred to herein as a “Company "Parent Material Contract”. Each Company Agreement relating ." As of the date hereof, Parent has made available to the ADS Business, the Acquired Assets or the Retained Liabilities Company true and complete copies of all Parent Material Contracts.
(b) Each Parent Material Contract is valid and binding on the Company Parent and each Company Subsidiary of its Subsidiaries party thereto and, to the Company’s knowledgeParent's Knowledge, each other party thereto, as applicable, and is in full force and effect, except, insofar as this representation is made as of the Closing Date, as would not be reasonably likely to have a Material Adverse Effect on Parent. Parent has not received any written notice from any other party to any Parent Material Contract, and otherwise has no Knowledge, that such third party intends to terminate, not renew, or challenge the Company and each Company Subsidiary has performed all obligations required validity or enforceability of any Parent Material Contract, except for such terminations, non-renewals or challenges as would not be reasonably likely to be performed by it under each such Company Agreement have a Material Adverse Effect on Parent. Neither Parent nor any of its Subsidiaries, and, to the Company’s knowledgeKnowledge of Parent, each no other party to each such Company Agreement has performed all obligations required to be performed by it under such Company Agreementthereto, except as would not, or would not be reasonably expected to, individually is in violation of or in the aggregate, (1) prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. None of the Company or any Company Subsidiary knows of, or has received notice of, any violation or default under (or nor does there exist any condition which with upon the passage of time or the giving of notice or both would cause such a violation of or default under) any Company Agreement relating Parent Material Contract to the ADS Businesswhich it is a party or by which it or any of its properties or assets is bound, the Acquired Assets or the Retained Liabilities except for violations or defaults that would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in aggregate are not reasonably likely to have a Company Material Adverse Effect. The Company has delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete and correct copies of all of the Company Material Contracts or other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities 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 or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of such contractsEffect on Parent.
Appears in 1 contract
Contracts. Except as filed as exhibits to the Company SEC Documents filed prior to the date hereof, or as disclosed in Section 3.13 of the Company Disclosure Schedule, there is no Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities (a) any Except as set forth on Schedule 4.10 and the Schedules to Section 4.16 hereof, none of the benefits to any Companies is a party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11) or (b) which, as of the date hereof, to: (i) is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC), any collective bargaining agreement; (ii) involves aggregate expenditures in excess of $50,000 per annum, any Contract with any employee; (iii) involves aggregate expenditures any Contract containing any covenant limiting its freedom to engage in excess of $50,000 and was not entered into in the ordinary course of business, (iv) contains “take or pay” provisions applicable to the Company or any Company Subsidiary, (v) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area to compete with respect any Person; (iv) any Contract containing an obligation to the Companyguarantee or indemnify any other Person; (v) any joint venture, partnership or similar Contract involving a sharing of profits or expenses; (vi) any Company Subsidiary or Contract under which any of the Company’s current Companies is the licensee or future affiliateslicensor of patents, or which restricts the conduct of any line of business by the Companycopyrights, trademarks, applications for any of the Company’s current or future affiliates, any Company Subsidiary foregoing or any geographic area in which the Company, other intellectual property rights of any Company Subsidiary or nature; (vii) any Contract between any of the Company’s current or future affiliates may conduct business, in each case in Companies and any respect, of their Affiliates; (viviii) would reasonably be expected to prohibit or materially delay the consummation of the Offer, the Merger or any Contract under which any of the Companies has borrowed any money or issued any note, bond or other Transactions evidence of indebtedness for borrowed money or guaranteed indebtedness for money borrowed by others; (ix) any hedge, swap, exchange, futures or similar Contracts; or (viix) is necessary for the conduct any Contract that has had or may have a Material Adverse Effect on any of the ADS Business as currently conducted but constitutes an Excluded AssetCompanies. Each contract of the type described in this Section 3.13, whether or not The Contracts which are required to be set forth in Section 3.13 of the Company Disclosure Schedule, is on Schedule 4.10 hereof are referred to herein collectively as the "Companies' Material Contracts" and each, individually, as a “"Company Material Contract”. Each Company Agreement relating to ." Schedule 4.10 contains a brief description (including the ADS Business, names of the Acquired Assets or parties and the Retained Liabilities is valid date and binding on nature of the Company and agreement) of each Company Subsidiary party thereto and, to the Company’s knowledge, each other party thereto, as applicable, and in full force and effect, and the Company and each Company Subsidiary has performed all obligations required to be performed Material Contract.
(b) There is no existing material breach by it under each such Company Agreement and, to the Company’s knowledge, each other party to each such Company Agreement has performed all obligations required to be performed by it under such Company Agreement, except as would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company Companies of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect. None of the Company or Contract and there has not occurred any Company Subsidiary knows of, or has received notice of, any violation or default under (or any condition which event that with the passage lapse of time or the giving of notice or both would cause constitute such a violation breach. There is not pending nor, to the knowledge of any of the Companies, threatened, any claim that any of the Companies has breached any of the terms or default under) conditions of any Company Agreement relating Material Contract and, to the ADS Businessknowledge of any of the Companies, no other parties to such Contracts have breached any of their terms or conditions. The Purchaser will be provided with a complete and accurate copy of each Contract listed on Schedule 4.10 prior to Closing.
(c) Except to the extent accrued as a liability on the December Balance Sheet, no amounts are payable, or will become payable, (i) pursuant to the Construction Contract, dated November 8, 1999, by and between ▇▇▇▇▇▇▇▇▇ Shipyards Lockport, LLC, G&B and Gilco (together with any and all supplements or amendments thereto, the Acquired Assets "Construction Contract") in connection with the delivery of the remaining vessel being constructed thereunder or the Retained Liabilities otherwise and (ii) in connection with placing such vessel in service (except for violations or defaults that would notthe costs of groceries, or would fuel and stores, which shall not be reasonably expected to, individually or exceed $25,000 in the aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect). The Company delivery date for the remaining vessel to be constructed pursuant to the Construction Contract is April 9, 2001. The Seller has no reason to believe that such vessel will be delivered to the Purchaser or provided to the Purchaser for review, prior to the execution of this Agreement, true, complete G&B and correct copies of all of the Company Material Contracts or other Company Agreements relating to the ADS Business, the Acquired Assets or the Retained Liabilities 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 or other Company Agreements required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true, complete and correct copies of Gilco later than such contractsdate.
Appears in 1 contract