Contracts. (a) Section 3.12(a) of the Disclosure Schedule sets forth, as of the date hereof, each Transferred Contract of the following types: (i) a collective bargaining agreement or other Contract with any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”); (ii) a Contract with any Top Customer (as defined below), including purchase orders covering a payment amount of $2,000,000 or more, other than (A) in the ordinary course of business, (B) non-disclosure agreements, (C) sales acknowledgments, (D) purchase orders covering a payment amount of under $2,000,000 or (E) statements of work that have been satisfied in full; (iii) a Contract with any Top Vendor (as defined below), including a purchase or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in full; (iv) a Contract under which any Transferred Subsidiary has borrowed any money from, or issued any note, bond, debenture or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to or as of the Closing); (v) a Contract concerning the establishment, control, maintenance or operation of a partnership, joint venture or other similar agreement or arrangement, in each case that is material to the Business; (vi) all material Leases; (vii) a Contract (A) pursuant to which a distributor (including any affiliate of Seller) has the right to distribute or resell products of the Business and (B) involving aggregate payments in excess of $100,000 in the twelve (12)-month period ended January 31, 2023; (viii) any Contract that is a mortgage, indenture, guaranty, financial, loan or credit agreement, security agreement or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted Liens; (ix) any Contract that is a hedging, futures, options or other derivative Contract; (x) any Contract for the acquisition of any Person or any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereof; (xi) any royalty or similar Contract based on the revenues or profits of any Transferred Subsidiary; (xii) any Contract of indemnification or guaranty to any Person not made in the ordinary course of business; (xiii) any Contract with any Governmental Entity; (xiv) any Contract relating to the acquisition or disposition of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise); (xv) any Contract under which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation; (xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person; (xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes; (xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes; (xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act; (xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect; (xxi) any Contract involving capital expenditures by a Transferred Subsidiary in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof; (xxii) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing; (xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement; (xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary; (xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with respect to actions in such capacity); (xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involves: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and (xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Laws. (b) All Contracts set forth or required to be set forth in Section 3.12 of the Disclosure Schedule (including, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding and in full force and effect, subject, as to enforcement, to the Enforceability Exceptions. The true, correct and complete copies of all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that is not in written form. (c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default under the Business Contracts, and, to the Knowledge of Seller, no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, that (with or without notice or lapse of time) will or would reasonably be expected to (i) result in a material violation or breach of any of the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, to the Knowledge of Seller, other communication regarding any actual or possible violation or breach of, or material default under, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights under any Business Contract.
Appears in 1 contract
Sources: Stock Purchase Agreement (SMART Global Holdings, Inc.)
Contracts. (a) Section 3.12(aS)4(o) of the Disclosure Schedule sets forth, as lists the following contracts and other agreements to which any of the date hereof, each Transferred Contract Company and its Subsidiaries is a party and which is in effect or by which any of the following types:Company and its Subsidiaries is otherwise bound;
(i) a collective bargaining any agreement (or other Contract with group of related agreements) for the lease of personal property to or from any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”)Person providing for lease payments in excess of $50,000 per annum;
(ii) a Contract with any Top Customer agreement (as defined below), including purchase orders covering a payment amount or group of $2,000,000 or more, other than (Arelated agreements) in for the ordinary course of business, (B) non-disclosure agreements, (C) sales acknowledgments, (D) purchase orders covering a payment amount of under $2,000,000 or (E) statements of work that have been satisfied in full;
(iii) a Contract with any Top Vendor (as defined below), including a purchase or service order covering a payment amount sale of $1,000,000 or moreraw materials, other than (A) non-disclosure agreementscommodities, (B) sales acknowledgmentssupplies, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in full;
(iv) a Contract under which any Transferred Subsidiary has borrowed any money fromproducts, or issued any noteother personal property, bondor for the furnishing or receipt of services, debenture or other evidence the performance of indebtedness which will extend over a period of borrowed money to, any person, including any guarantee relating thereto more than one year (other than any Contract that will be terminated prior to or as of the Closing);
(vand which is not cancelable within one year) a Contract concerning the establishment, control, maintenance or operation of a partnership, joint venture or other similar agreement or arrangement, in each case that is material to the Business;
(vi) all material Leases;
(vii) a Contract (A) pursuant to which a distributor (including any affiliate of Seller) has the right to distribute or resell products of the Business and (B) involving aggregate payments involves consideration in excess of $100,000 in any year;
(iii) any agreement concerning a partnership or joint venture;
(iv) any agreement (or group of related agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, any capitalized lease obligation, or any agreement under which it has imposed a Security Interest on any of its assets;
(v) any agreement concerning noncompetition or material agreement concerning confidentiality;
(vi) any agreement with any of the twelve Parent and the Seller and their Affiliates (12)-month period ended January 31other than the Company and its Subsidiaries);
(vii) any collective bargaining agreement or similar written agreement with any labor organization, 2023or written work rules or practices agreed to with any labor organization or employee association applicable to employees of the Company or its Subsidiaries;
(viii) any Contract that is a mortgage, indenture, guaranty, financial, loan consulting agreement providing annual compensation in excess of $100,000 or credit agreement, security agreement or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted Liens;providing severance benefits; and
(ix) any Contract that is a hedging, futures, options or other derivative Contract;
(x) any Contract for the acquisition of any Person or any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereof;
(xi) any royalty or similar Contract based on the revenues or profits of any Transferred Subsidiary;
(xii) any Contract of indemnification or guaranty to any Person not made in the ordinary course of business;
(xiii) any Contract with any Governmental Entity;
(xiv) any Contract relating to the acquisition or disposition of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);
(xv) any Contract agreement under which the Transferred Subsidiaries have an obligation with respect it has advanced or loaned any amount to an “earn out,” contingent purchase price, or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary)directors, on the one handofficers, and any Transferred Subsidiariesemployees outside the Ordinary Course of Business. The Parent, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary in excess of $1,500,000 in Seller and the aggregate, whether or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof;
(xxii) any Contract relating Company have delivered to the settlement Buyer a correct and complete copy of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
each written agreement listed in (xxiiiS)4(o) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available Disclosure Schedule (as amended to Purchaser date) and a written summary setting forth the terms and conditions of each oral agreement referred to in (BS)4(o) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with Disclosure Schedule. With respect to actions in each such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involvesagreement: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individuallyagreement is legal, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Laws.
(b) All Contracts set forth or required to be set forth in Section 3.12 of the Disclosure Schedule (including, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding and in full force enforceable against the Company, and effect, subject, as to enforcement, to the Enforceability Exceptions. The true, correct and complete copies of all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default under the Business Contracts, and, to the Knowledge of Sellerthe Parent, no the Seller and the Company, the agreement is legal, valid and binding against the other party to any Business Contract is orthereto; (B) none of the Company and its Subsidiaries, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No event has occurred, and, to the Knowledge of Sellerthe Parent, the Seller and the Company no circumstance other party thereto, is in breach or condition existsdefault in any material respect, that (and no event has occurred which with or without notice or lapse of timetime would constitute a breach or default in any material respect, or permit termination, modification, or acceleration, under the agreement; and (C) will or would reasonably be expected to (i) result in a material violation or breach of no party has given written notice that it has repudiated any provision of the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, to the Knowledge of Seller, other communication regarding any actual or possible violation or breach of, or material default under, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights under any Business Contractagreement.
Appears in 1 contract
Contracts. (a) Section 3.12(a) 2.13 of the Disclosure Schedule sets forth, lists the following agreements (written or oral) to which the Company or any Company Subsidiary is a party as of the date hereof, each Transferred Contract of the following typesthis Agreement:
(i) any agreement (or group of related agreements) for the lease of personal property from or to third parties providing for lease payments in excess of $25,000 per annum or having a collective bargaining agreement or other Contract with any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”)remaining term longer than 12 months;
(ii) a Contract with any Top Customer agreement (as defined below), including or group of related agreements) for the purchase orders covering a payment amount or sale of $2,000,000 products or more, other than for the furnishing or receipt of services (A) in the ordinary course which calls for performance over a period of businessmore than one year, (B) non-disclosure agreementswhich involves more than the sum of $25,000, or (C) sales acknowledgmentsin which the Company or any Company Subsidiary has granted manufacturing rights, (D) “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to any products or territory or has agreed to purchase orders covering a payment amount minimum quantity of under $2,000,000 goods or (E) statements of work that have been satisfied in fullservices or has agreed to purchase goods or services exclusively from a certain party;
(iii) any agreement which, to the knowledge of the Company, establishes a Contract with any Top Vendor (as defined below), including a purchase partnership or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in fulljoint venture;
(iv) a Contract any agreement (or group of related agreements) under which it has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) involving more than $25,000 or under which it has imposed (or may impose) a Security Interest on any Transferred Subsidiary has borrowed any money fromof its assets, tangible or issued any note, bond, debenture or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to or as of the Closing)intangible;
(v) a Contract any agreement concerning the establishment, control, maintenance confidentiality or operation of a partnership, joint venture or other similar agreement or arrangement, in each case that is material to the Businessnoncompetition;
(vi) all material Leasesany employment or consulting agreement;
(vii) a Contract (A) pursuant to which a distributor (including any agreement involving any officer, director or stockholder of the Company or any affiliate of Seller(as defined in Rule 12b-2 under the Exchange Act) has the right to distribute or resell products of the Business and thereof (B) involving aggregate payments in excess of $100,000 in the twelve (12)-month period ended January 31, 2023an “Affiliate”);
(viii) any Contract that is agreement under which the consequences of a mortgage, indenture, guaranty, financial, loan default or credit agreement, security agreement or is termination would reasonably be expected to have a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted LiensCompany Material Adverse Effect;
(ix) any Contract that is a hedgingagreement which contains any provisions requiring the Company or any Company Subsidiary to indemnify any other party thereto (excluding indemnities contained in agreements for the purchase, futures, options sale or other derivative Contractlicense of products entered into in the Ordinary Course of Business);
(x) any Contract for the acquisition other agreement (or group of any Person related agreements) either involving more than $25,000 or any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory not entered into in the ordinary course Ordinary Course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereof;Business; and
(xi) any royalty or similar Contract based on the revenues or profits of any Transferred Subsidiary;
(xii) any Contract of indemnification or guaranty to any Person not made in the ordinary course of business;
(xiii) any Contract with any Governmental Entity;
(xiv) any Contract relating to the acquisition or disposition of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);
(xv) any Contract under which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Propertyagreement, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof;
(xxii) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) , relating to the sales of securities of the Company or any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by Company Subsidiary to which the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with respect to actions in such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involves: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person Company or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having Company Subsidiary is a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Lawsparty.
(b) All Contracts set forth The Company has delivered or required made available to be the Parent a complete and accurate copy of each agreement listed in Section 2.13 of the Disclosure Schedule. With respect to each agreement so listed, and except as set forth in Section 3.12 2.13 of the Disclosure Schedule Schedule: (includingi) the agreement is legal, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding and enforceable and in full force and effect; (ii) the agreement will continue to be legal, subjectvalid, 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 enforcementthe Closing; and (iii) neither the Company nor any Subsidiary nor, to the Enforceability Exceptions. The true, correct and complete copies of all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) knowledge of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that Company, any other party, is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default under the Business Contractsviolation of, and, to the Knowledge of Seller, no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No under, any such agreement, and no event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, that (with or without notice or lapse of time) will or would reasonably be expected to (i) result in a material violation or breach of any of the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice is pending or, to the Knowledge knowledge of Sellerthe Company, other communication regarding any actual or possible violation or breach ofis threatened, which, after the giving of notice, with lapse of time, or material otherwise, would constitute a breach or default underby the Company or any Subsidiary or, to the knowledge of the Company, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights other party under any Business Contractsuch contract.
Appears in 1 contract
Sources: Merger Agreement (Modigene Inc.)
Contracts. (a) Section 3.12(aSchedule 3.9(a) of the Disclosure Schedule sets forth, as of the date hereof, each Transferred Contract of lists the following types:Contracts to which the Company or one of its Subsidiaries is a party and that are currently in effect (each Contract required to be listed on Schedule 3.9(a), an “Identified Contract”):
(i) a collective bargaining agreement or other any Contract with requiring capital expenditures involving consideration in excess of $50,000 in any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”)twelve-month period;
(ii) a any Contract with any Top Customer (as defined below), including purchase orders covering a payment amount of $2,000,000 that restricts or more, other than limits (A) the ability of the Company and any of its Subsidiaries taken as a whole to freely engage in the ordinary course of business, their Business in any geographic area or (B) non-disclosure agreements, the ability of Affiliates of the Company (Cother than the Company and its Subsidiaries) sales acknowledgments, (D) purchase orders covering a payment amount to conduct any legal line of under $2,000,000 or (E) statements of work that have been satisfied business in fullany geographic area;
(iii) a Contract with any Top Vendor (as defined below), including a purchase or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in fullcollective bargaining agreement;
(iv) a any Contract under pursuant to which any Transferred Subsidiary has borrowed any money frompayments (A) were made during the twelve-month period ended March 31, 2004, or issued (B) are reasonably anticipated to be made during the twelve-month period ending on March 31, 2005, by or to the Company or any note, bond, debenture or other evidence of indebtedness its Subsidiaries of borrowed money to, any person, including any guarantee relating thereto (other more than any Contract that will be terminated prior $50,000 to or as of the Closing)from any Person;
(v) a any Contract concerning the establishment, control, maintenance or operation of a partnership, joint venture or other similar agreement or arrangement, in each case that is material relating to the Businessownership, management or control of any Person in which the Company or any of its Subsidiaries owns any equity securities;
(vi) all material Leases;
(vii) a Contract (A) pursuant to which a distributor (including any affiliate of Seller) has the right to distribute or resell products of the Business and (B) involving aggregate payments in excess of $100,000 in the twelve (12)-month period ended January 31, 2023;
(viii) any Contract that is a mortgage, indenture, guaranty, financial, loan or credit agreement, security agreement or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted Liens;
(ix) any Contract that is a hedging, futures, options or other derivative Contract;
(x) any Contract for the acquisition of any Person or any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereof;
(xi) any royalty or similar Contract based on the revenues or profits of any Transferred Subsidiary;
(xii) any Contract of indemnification or guaranty to any Person not made in the ordinary course of business;
(xiii) any Contract with any Governmental Entity;
(xiv) any Contract relating to the acquisition or disposition outside the Ordinary Course of Business of any assets or any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);
(xv) any Contract under which to the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in extent any material respect the ability of any Transferred Subsidiary to engage in the Business actual or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services contingent express obligations of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group Company or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently Subsidiaries thereunder remain in effect;
(xxivii) any Contract relating to indebtedness for borrowed or loaned money or the deferred purchase price of property (in each case, whether incurred, assumed, guaranteed or secured or unsecured by any asset) under which at least $50,000 is outstanding;
(viii) any Contract relating to outstanding letters of credit or performance bonds or creating any liability as guarantor, surety, co-signer, endorser, co-maker or indemnitor, in each case in respect of the obligation of any Person to make payments or perform services with a value of at least $50,000;
(ix) any Contract with any Employee involving capital expenditures by a Transferred Subsidiary consideration or payments in excess of $1,500,000 50,000 in the aggregateany twelve-month period, whether or not made in the ordinary course of business consistent including offer letters with past practices, which has material ongoing obligations following respect to employment scheduled to begin after the date hereof; and any Contract with any Director of the Company or any of its Subsidiaries;
(xxiix) any Contract with a supplier of Inventory;
(xi) any Contract with outstanding obligations relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the ClosingLitigation;
(xxiiixii) Contracts with non-Employee individuals providing for the provision of services to or on behalf of the Company or any of its Subsidiaries which require, or may require, payments by the Company or its Subsidiaries, or have a value to the Company or its Subsidiaries, in excess of $50,000 on an individual basis, including product design or development, personal services, consulting (Afor any purpose), non-competition or indemnification contracts and offer letters with respect to such services scheduled to begin after the date hereof; and
(xiii) any Contract with an Employee a supplier of Inventory that provides for annual base compensation in excess of $80,000 that materially deviates from restricts the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention Company or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of its Subsidiaries, as the transactions contemplated by this Agreement;
(xxiv) case may be, from acquiring Inventory from any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with respect to actions in such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involves: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Lawssupplier.
(b) All Contracts Except as set forth or required to be set forth in Section 3.12 of on Schedule 3.9(a), each Identified Contract is on the Disclosure Schedule (includingdate hereof and will, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or be (unless, with respect to a Top Customer or Top Vendor in an amount greater than $200,000 the representations and not otherwise required to be set forth in Section 3.12 warranties made as of the Disclosure Schedule and all material Contracts Closing Date, it shall have terminated or expired in accordance with Employees that provide for annual base compensation in excess its terms other than as a result of $80,000 (such Contracts, a breach or default by the “Business Contracts”Company or its Subsidiaries) are valid, binding and binding, in full force and effect, subject, as to enforcement, to effect and enforceable against the Enforceability Exceptions. The true, correct and complete copies of all written Business Contracts (including all amendments, supplements, modifications, annexes Company or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) Subsidiary of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default under the Business ContractsCompany, and, to the Knowledge of SellerSellers, no against any other party to any Business Contract thereto, in accordance with its terms. The Company or the applicable Subsidiary of the Company is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations not in connection therewith) in material breach or default thereunder. No event has occurred, under any Identified Contract and, to the Knowledge of SellerSellers, no circumstance or condition existsevent has occurred which, that (with or without notice or lapse of time) will time or both, would constitute a breach or default, or permit termination, modification, or acceleration, under any Identified Contract by any party thereto and that has had or would be reasonably be expected likely to have, individually or in the aggregate together with similar occurrences, a Material Adverse Effect on the Company.
(ic) result in a material violation or breach True and complete copies of any of the provisions of any Business each Identified Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, all amendments thereto entered into prior to the Knowledge of Sellerdate hereof, other communication regarding any actual or possible violation or breach of, or material default under, any Business Contract. No member of have been made available by the Seller Group (including Company to Buyer prior to the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights under any Business Contractdate hereof.
Appears in 1 contract
Contracts. Except for Contracts described on Schedule 3.19, complete and genuine copies of which have been delivered to Buyer, Sellers are not party to:
(a) Section 3.12(aany agreement (or group of related agreements) for the lease of the Disclosure Schedule sets forth, as of the date hereof, each Transferred Contract of the following types:
(i) a collective bargaining agreement or other Contract with any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”);
(ii) a Contract with any Top Customer (as defined below), including purchase orders covering a payment amount of $2,000,000 or more, other than (A) in the ordinary course of business, (B) non-disclosure agreements, (C) sales acknowledgments, (D) purchase orders covering a payment amount of under $2,000,000 or (E) statements of work that have been satisfied in full;
(iii) a Contract with any Top Vendor (as defined below), including a purchase or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in full;
(iv) a Contract under which any Transferred Subsidiary has borrowed any money from, or issued any note, bond, debenture or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior personal property to or as of the Closing);
(v) a Contract concerning the establishment, control, maintenance or operation of a partnership, joint venture or other similar agreement or arrangement, in each case that is material to the Business;
(vi) all material Leases;
(vii) a Contract (A) pursuant to which a distributor (including any affiliate of Seller) has the right to distribute or resell products of the Business and (B) involving aggregate payments in excess of $100,000 in the twelve (12)-month period ended January 31, 2023;
(viii) any Contract that is a mortgage, indenture, guaranty, financial, loan or credit agreement, security agreement or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted Liens;
(ix) any Contract that is a hedging, futures, options or other derivative Contract;
(x) any Contract for the acquisition of any Person or any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereof;
(xi) any royalty or similar Contract based on the revenues or profits of any Transferred Subsidiary;
(xii) any Contract of indemnification or guaranty to any Person not made in the ordinary course of business;
(xiii) any Contract with any Governmental Entity;
(xiv) any Contract relating to the acquisition or disposition of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);
(xv) any Contract under which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xviib) any Contract that contains a licenseagreement (or group of related agreements) for the purchase or sale of raw materials, sublicense commodities, supplies, products, or other provision under which any Transferred Subsidiary is granted personal property, or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion furnishing or receipt of such Trademarks in services, the performance of which will extend over a customer list period of more than one year or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary involve consideration in excess of $1,500,000 100,000 (or, in the aggregatecase of purchase orders, whether or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof$250,000);
(xxiic) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary agreement concerning a partnership or the Business will have any material outstanding obligations after the Closingjoint venture;
(xxiii) (Ad) any Contract with an Employee that provides agreement (or group of related agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness for annual base compensation in excess borrowed money, or any capitalized lease obligation, under which it has granted any security interest on any of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and its assets, tangible or intangible;
(Be) any Contract with agreement concerning confidentiality or non-competition;
(f) any Employee that provides collective bargaining agreement;
(g) any agreement for retention or stay bonusthe employment of any individual on a full-time, severance or advance notice of termination that extends beyond what is required pursuant to applicable Lawspart-time, change in control bonus or accelerated vestingconsulting, or other material compensation basis excluding, however, verbal agreements for employment of any individual which are terminable without cause on an at will basis;
(h) any agreement under which it has advanced or loaned any amount to any of its directors, officers, and employees outside the Ordinary Course of Business;
(i) any consulting agreement with an individual consultant, firm or other organization, other than agreements entered into in connection with the transactions contemplated by this Agreement;
(j) any agreement or plan, including any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits that, in each case, of which will be payable increased, or due as a result the vesting of benefits of which will be accelerated, by the occurrence of any of the consummation transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(xxivk) any Contract that provides that fees agreement, contract or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement commitment relating to Capital Expenditures and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with respect to actions in such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involves: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value involving future payments in excess of $200,000 individually, or $1,000,000 50,000 per year in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; andaggregate;
(xxviil) any material managementagreement, consulting, contractor, relocation, repatriation contract or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Laws.
(b) All Contracts set forth or required to be set forth in Section 3.12 of the Disclosure Schedule (including, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding and in full force and effect, subject, as to enforcement, to the Enforceability Exceptions. The true, correct and complete copies of all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws commitment relating to the safeguarding leasing, licensing, disposition or acquisition of Personal Data). Section 3.12(bassets or any interest in any business enterprise outside the ordinary course of Sellers’ business;
(m) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit;
(n) any dealer, distribution, joint marketing, sales representative, value added, re-marketer or other agreement for distribution of Sellers’ products or services; or
(o) any Contract for the purchase of substantially all of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Scheduleassets of, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default under the Business Contracts, and, to the Knowledge of Seller, no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, that (with or without notice or lapse of time) will or would reasonably be expected to (i) result in a material violation equity interest in or breach of merger or consolidation with any of the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, to the Knowledge of Seller, other communication regarding any actual or possible violation or breach of, or material default under, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights under any Business ContractPerson.
Appears in 1 contract
Contracts. (a) Section 3.12(aExcept for Excluded Assets, SCHEDULE 3.14(A) lists the following contracts and other arrangements, commitments or agreements that are currently in effect and to which any Canberra Affiliate is a party, or by which it or any of the Disclosure Schedule sets forth, as of Acquired Assets is bound or to which any other Seller Party is a party and which relates to the date hereof, each Transferred Contract of the following typesCanberra Business or any Acquired Asset:
(i) a collective bargaining Any written agreement (or other Contract with group of related agreements) for the lease of personal property to or from any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”)Person providing for lease payments in excess of $50,000 per annum;
(ii) a Contract with any Top Customer As of November 9, 2000 (and will list as defined belowof the third day preceding the Closing Date), including any written agreement (or group of related agreements) for the purchase orders covering or sale of raw materials, commodities, supplies, products, or other personal property, or for the furnishing or receipt of services, the performance of which will extend over a payment amount period of more than one year or involve consideration in excess of $2,000,000 or more, other than 50,000 (A) in the ordinary course aggregate in the case of business, (B) non-disclosure any group of related agreements, (C) sales acknowledgments, (D) purchase orders covering a payment amount of under $2,000,000 or (E) statements of work that have been satisfied in full);
(iii) Any material written agreement concerning a Contract with any Top Vendor (as defined below)partnership, including a purchase joint venture, or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in fullcooperative research and development;
(iv) a Contract under which any Transferred Subsidiary has borrowed any money from, Any written agreement for sales distribution or issued any note, bond, debenture representation with respect to products or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to or as of the Closing)services;
(v) a Contract Any written agreement concerning the establishmentconfidentiality, controlinvention assignment or non-competition, maintenance or operation with any employee of a partnership, joint venture Seller Party (other than the standard form agreements contained in Seller's employee manual furnished to Buyer or other substantially similar agreement agreements or arrangement, standard invention assignment executed in each case that is material to the Businessconnection with any patent application);
(vi) all Any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or other material Leasesplan or arrangement for the benefit of current or former directors, officers, or employees of Seller or any Canberra Affiliate;
(vii) Any agreement for the employment or consultancy of any individual on a Contract full-time, part-time, consulting, or other basis providing annual compensation in excess of $50,000 or for periods greater than one year or providing material severance benefits;
(Aviii) pursuant Any written agreement (or group of related agreements) under which Seller or any Canberra Affiliate has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, in excess of $50,000; or under which it has imposed a Security Interest on any of its assets, tangible or intangible;
(ix) Any agreement under which Seller or any Canberra Affiliate has advanced or loaned (or agreed to advance or loan) any amount to any of its directors, officers, or employees, which a distributor advance or loan constitutes an Acquired Asset; and
(including any affiliate x) Any other written agreement (or group of Sellerrelated agreements) has the right to distribute or resell products performance of the Business and (B) involving aggregate payments which involves consideration in excess of $100,000 (or in the twelve (12)-month period ended January 31, 2023;
(viii) any Contract that is a mortgage, indenture, guaranty, financial, loan or credit agreement, security agreement or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted Liens;
(ix) any Contract that is a hedging, futures, options or other derivative Contract;
(x) any Contract for the acquisition of any Person or any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereof;
(xi) any royalty or similar Contract based on the revenues or profits of any Transferred Subsidiary;
(xii) any Contract of indemnification or guaranty to any Person not made in the ordinary course of business;
(xiii) any Contract with any Governmental Entity;
(xiv) any Contract relating to the acquisition or disposition of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);
(xv) any Contract under which the Transferred Subsidiaries have an obligation aggregate with respect to an “earn out,” contingent purchase price, any group of related agreements). Seller has delivered or similar contingent payment obligation;made available to Buyer a correct and complete copy of each agreement listed in SCHEDULE 3.14(A) (as amended to date).
(xvib) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete Except as set forth on SCHEDULE 3.14(B), with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of each such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract agreement that is required to be filed by Seller Guarantor as a “material contract” assigned to Buyer pursuant to Item 601(b)(10)(i) the terms of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof;
(xxii) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with respect to actions in such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involves: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will assignable without the payment consent of severance or any other termination payments or benefits beyond that which Person, and is required by applicable Laws.
(b) All Contracts set forth or required to be set forth in Section 3.12 of the Disclosure Schedule (includinglegal, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding binding, enforceable, and in full force and effecteffect in all material respects against Seller (or, subject, as to enforcementsuch other Seller Party that is a party thereto) and, to the Enforceability Exceptions. The trueKnowledge of Seller, correct and complete copies of all written Business Contracts against the other party(ies) thereto; (including all amendmentsB) Seller (or, supplements, modifications, annexes or schedules such other Seller Party that is a party thereto) have been made available to Purchaser (subject to redactions is not, and, to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding Knowledge of Personal Data). Section 3.12(b) of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure ScheduleSeller no other party is, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default under the Business Contractsdefault, and, to the Knowledge of Seller, no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No event has occurred, and, to occurred (or will occur by consummation of the Knowledge of Seller, no circumstance or condition exists, that (transactions contemplated hereby) which with or without notice or lapse of time) will or time would reasonably be expected to (i) result in constitute a material violation breach or breach of any of the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, to the Knowledge of Seller, other communication regarding any actual or possible violation or breach ofdefault, or permit termination, modification, or acceleration, under such agreement; and (C) no party has repudiated in writing any material default under, any Business Contract. No member provision of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates such agreement or has waived any of their material rights under any Business Contractexpressed in writing an intent to so repudiate.
Appears in 1 contract
Contracts. (a) Section 3.12(a) 2.13 of the Disclosure Schedule sets forthlists the following agreements (written or oral) to which Empire is a party, as of the date hereof, each Transferred Contract of the following typesthis Agreement:
(i) any agreement (or group of related agreements) for the lease of personal property from or to third parties providing for lease payments in excess of $25,000 per annum or having a collective bargaining agreement or other Contract with any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”)remaining term longer than 12 months;
(ii) a Contract with any Top Customer agreement (as defined below), including or group of related agreements) for the purchase orders covering a payment amount or sale of $2,000,000 products or more, other than for the furnishing or receipt of services (A) in the ordinary course which calls for performance over a period of businessmore than one year, (B) non-disclosure agreementswhich involves more than the sum of $25,000, or (C) sales acknowledgments, (D) in which Empire has granted “most favored nation” pricing provisions or marketing or distribution rights relating to any products or territory or has agreed to purchase orders covering a payment amount minimum quantity of under $2,000,000 goods or (E) statements of work that have been satisfied in fullservices or has agreed to purchase goods or services exclusively from a certain party;
(iii) a Contract with any Top Vendor (as defined below), including a purchase or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in full;
(iv) a Contract under which any Transferred Subsidiary has borrowed any money from, or issued any note, bond, debenture or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to or as of the Closing);
(v) a Contract agreement concerning the establishment, control, maintenance establishment or operation of a partnership, joint venture or limited liability company;
(iv) any agreement (or group of related agreements) under which Empire created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) involving more than $25,000 or under which Empire has imposed (or may impose) a Security Interest on any of its assets, tangible or intangible;
(v) any agreement for the disposition of any significant portion of the assets or business of Empire (other similar than sales of products in the Ordinary Course of Business) or any agreement for the acquisition of the assets or arrangement, business of any other entity (other than purchases of Inventory or components in each case that is material to the Ordinary Course of Business);
(vi) all material Leasesany agreement concerning confidentiality or noncompetition;
(vii) a Contract (A) pursuant to which a distributor (including any affiliate of Seller) has the right to distribute employment or resell products of the Business and (B) involving aggregate payments in excess of $100,000 in the twelve (12)-month period ended January 31, 2023consulting agreement;
(viii) any Contract that is a mortgageagreement involving any current or former officer, indenture, guaranty, financial, loan director or credit agreement, security agreement stockholder of Empire or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted Liensan Affiliate thereof;
(ix) any Contract that is agreement under which the consequences of a hedging, futures, options default or other derivative Contracttermination would reasonably be expected to have a Business Material Adverse Effect;
(x) any Contract agreement which contains any provisions requiring Empire to indemnify any other party (excluding indemnities contained in agreements for the acquisition purchase, sale or license of any Person or any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory products entered into in the ordinary course Ordinary Course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereof;Business); and
(xi) any royalty other agreement (or similar Contract based on the revenues group of related agreements) either involving more than $25,000 or profits of any Transferred Subsidiary;
(xii) any Contract of indemnification or guaranty to any Person not made in the ordinary course of business;
(xiii) any Contract with any Governmental Entity;
(xiv) any Contract relating to the acquisition or disposition of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);
(xv) any Contract under which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course Ordinary Course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof;
(xxii) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with respect to actions in such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involves: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable LawsBusiness.
(b) All Contracts set forth or required Empire has provided to be set forth Parent a complete and accurate copy of each agreement listed in Section 3.12 2.12(d) or Section 2.13 of the Disclosure Schedule Schedule. With respect to each agreement so listed: (includingi) the agreement is legal, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding and enforceable and in full force and effect, subject, as to enforcement, to the Enforceability Exceptions. The true, correct and complete copies of all written Business Contracts ; (including all amendments, supplements, modifications, annexes or schedules theretoii) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that is not in written form.
(c) Except except as set forth in Section 3.12(c) 2.13 of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and agreement will continue to be subject 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 ongoing obligations in connection therewiththe Closing; and (iii) in material breach or default under the Business Contracts, andnone of Empire nor, to the Knowledge knowledge of SellerEmpire, no any other party to any Business Contract party, is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or violation of, or default thereunder. No under, any such agreement, and no event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, that (with or without notice or lapse of time) will or would reasonably be expected to (i) result in a material violation or breach of any of the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice is pending or, to the Knowledge knowledge of SellerEmpire, other communication regarding any actual or possible violation or breach ofis threatened, which, after the giving of notice, with lapse of time, or material otherwise, would constitute a breach or default underby Empire or, to the knowledge of Empire, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights other party under any Business Contractsuch agreement.
Appears in 1 contract
Sources: Merger Agreement (Fonix Corp)
Contracts. (a) Section 3.12(a) The Company has Made Available to Parent a correct and complete copy of each of the Disclosure Schedule sets forthfollowing written 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, that are in effect as of the date hereof, each Transferred Contract of the following types:
(i) a collective bargaining agreement any contract (or group of related contracts) involving the performance of services or the purchase of goods, materials or other Contract with assets by or to the Company or any labor organizationof its Subsidiaries, trade unionthe performance of which will involve (A) annual payments to or from the Company or any of its Subsidiaries of $100,000 or more, works council or similar bargaining representative (a “Collective Agreement”)B) aggregate payments (including termination penalties) to or from the Company or any of its Subsidiaries of $500,000 or more;
(ii) any contract concerning a Contract with any Top Customer (as defined below), including purchase orders covering a payment amount of $2,000,000 partnership or more, other than (A) in the ordinary course of business, (B) non-disclosure agreements, (C) sales acknowledgments, (D) purchase orders covering a payment amount of under $2,000,000 or (E) statements of work that have been satisfied in fulljoint venture;
(iii) a Contract with any Top Vendor contract (as defined below)or group of related contracts) under which it has created, including a purchase incurred, assumed, or service order covering a payment amount guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, in excess of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in full500,000;
(iv) a Contract under which any Transferred Subsidiary has borrowed contract concerning noncompetition that materially limits or otherwise materially restricts the Company or any money fromof its Subsidiaries or that would, after either the Acceptance Time or issued the Effective Time, limit or restrict Parent, the Surviving Corporation or any noteof their respective Affiliates, bond, debenture from engaging or other evidence competing in any line of indebtedness of borrowed money to, business or in any persongeographic area, including any guarantee relating thereto (other than contract containing any Contract that will be terminated prior “radius clause” applicable to markets in which the Company or as any of the Closing)its Subsidiaries has operations;
(v) a Contract concerning the establishment, control, maintenance any contract relating to collective bargaining or operation of a partnership, joint venture or other similar agreement or arrangement, in each case that is material to the Businessemployee association;
(vi) all material Leasesany contract for the employment of any individual on a full-time, part-time, consulting, or other basis who is an officer or director of the Company or any of its Subsidiaries that provides for annual compensation in excess of $200,000;
(vii) any contract under which the consequences of a Contract (A) pursuant default or termination would reasonably be expected to which have a distributor (including any affiliate of Seller) has the right to distribute or resell products of the Business and (B) involving aggregate payments in excess of $100,000 in the twelve (12)-month period ended January 31, 2023Company Material Adverse Effect;
(viii) any Contract that is a mortgagecontract providing for the sale or exchange of, indentureor option to sell or exchange, guarantyany material Company Property, financialor for the purchase or exchange of, loan or credit agreementoption to purchase or exchange, security agreement or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted Liensreal estate;
(ix) any Contract that is a hedging, futures, options or other derivative Contract;
(x) any Contract contract for the acquisition or disposition, directly or indirectly (by merger or otherwise), of any Person assets or any business unit thereof or the disposition Equity Interests of any assetsanother person for aggregate consideration in excess of $100,000, in each case other than (A) Contracts for acquisitions or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereof;
(xi) any royalty or similar Contract based on the revenues or profits of any Transferred Subsidiary;
(xii) any Contract of indemnification or guaranty to any Person not made in the ordinary course of business;
(xiiix) any Contract with any Governmental Entity;
(xiv) any Contract relating to the acquisition license, royalty or disposition of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);
(xv) any Contract under which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary other contract concerning Intellectual Property (other than shrink-wrap software and databases licensed to the Transferred Company or any of its Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available nonexclusive software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to end-user customers by third parties in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;third parties’ businesses); and
(xixxi) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary)each written amendment, on the one hand, supplement and any Transferred Subsidiaries, on the other hand, that is currently modification in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof;
(xxii) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation respect of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with respect to actions in such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involves: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Lawsforegoing.
(b) All Contracts set forth or required to be set forth in Section 3.12 of the Disclosure Schedule (including, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding and in full force and effect, subject, as to enforcement, to the Enforceability Exceptions. The true, correct and complete copies of all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that is not in written form.
(c) Except as set forth in Section 3.12(c4.14(b) of the Company Disclosure ScheduleLetter, none with respect to each such contract to which the Company or any of its Subsidiaries is a party, or by which the Company or any of its Subsidiaries is bound, of a type described in Section 4.14(a) and in effect as of the Transferred Subsidiaries nor any date hereof: (i) the contract is legal, valid, binding, and enforceable against the Company and/or certain of their affiliates is orits Subsidiaries, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default under the Business Contractsas applicable, and, to the Knowledge Company’s knowledge, the other party thereto, and in full force and effect; (ii) except for any such contract that expires in accordance with its terms, the contract will continue to be legal, valid, binding and enforceable against the Surviving Corporation and/or certain of Sellerits Subsidiaries, as applicable, and, to the Company’s knowledge, the other party thereto, and in full force and effect on identical terms following each of the Acceptance Time and the Effective Time; (iii) neither the Company nor any of its Subsidiaries, as applicable, is in material breach or default, and no event has occurred that with the passage of time or giving of notice would constitute a material breach or default by the Company or any of its Subsidiaries, or permit termination or acceleration by the other party, under the contract; and (iv) to the Company’s knowledge, no other party to any Business Contract the contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No default, and no event has occurred, and, to occurred that with the Knowledge passage of Seller, no circumstance time or condition exists, that (with or without giving of notice or lapse of time) will or would reasonably be expected to (i) result in constitute a material violation breach or breach of any of the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, to the Knowledge of Seller, by such other communication regarding any actual or possible violation or breach ofparty, or material default underpermit termination or acceleration by the Company or its Subsidiary, any Business Contract. No member of under the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights under any Business Contractcontract.
Appears in 1 contract
Contracts. (a) Section 3.12(a) 2.15 of the Disclosure Schedule sets forth, lists the following agreements (written or oral) to which the Company or any Subsidiary is a party as of the date hereof, each Transferred Contract of the following typesthis Agreement:
(i) any agreement (or group of related agreements) for the lease of personal property from or to third parties providing for lease payments in excess of $10,000 per annum or having a collective bargaining agreement or other Contract with any labor organization, trade union, works council or similar bargaining representative remaining term longer than twelve (a “Collective Agreement”)12) months;
(ii) a Contract with any Top Customer agreement (as defined below), including or group of related agreements) for the purchase orders covering a payment amount or sale of $2,000,000 products or more, other than for the furnishing or receipt of services (A) in the ordinary course which calls for performance over a period of business, more than one year or (B) non-disclosure agreementsin which the Company or any Subsidiary has granted manufacturing rights, (C) sales acknowledgments, (D) “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to any products or territory or has agreed to purchase orders covering a payment amount minimum quantity of under $2,000,000 goods or (E) statements of work that have been satisfied in fullservices or has agreed to purchase goods or services exclusively from a certain party;
(iii) a Contract with any Top Vendor (as defined below), including a purchase or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in full;
(iv) a Contract under which any Transferred Subsidiary has borrowed any money from, or issued any note, bond, debenture or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to or as of the Closing);
(v) a Contract agreement concerning the establishment, control, maintenance establishment or operation of a partnership, joint venture or limited liability company;
(iv) any agreement (or group of related agreements) under which the Company or any Subsidiary has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) involving more than $25,000 or under which the Company or any Subsidiary has imposed (or may impose) a Security Interest on any of its assets, tangible or intangible;
(v) any agreement for the disposition of any significant portion of the assets or business of the Company or any Subsidiary (other similar than sales of products in the Ordinary Course of Business) or any agreement for the acquisition of the assets or arrangement, business of any other entity (other than purchases of inventory or components in each case that is material to the Ordinary Course of Business);
(vi) all material Leasesany agreement concerning confidentiality or noncompetition;
(vii) a Contract (A) pursuant to which a distributor (including any affiliate of Seller) has the right to distribute employment or resell products of the Business and (B) involving aggregate payments in excess of $100,000 in the twelve (12)-month period ended January 31, 2023consulting agreement;
(viii) any Contract that is a mortgageagreement involving any current or former officer, indenture, guaranty, financial, loan director or credit agreement, security agreement stockholder of the Company or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted Liensan Affiliate thereof;
(ix) any Contract that is agreement under which the consequences of a hedging, futures, options default or other derivative Contracttermination would reasonably be expected to have a Company Material Adverse Effect;
(x) any Contract agreement which contains any provisions requiring the Company or any Subsidiary to indemnify any other party (excluding indemnities contained in agreements for the acquisition purchase, sale or license of any Person or any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory products entered into in the ordinary course Ordinary Course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereofBusiness);
(xi) any royalty agreement that could reasonably be expected to have the effect of prohibiting or similar Contract based on impairing the revenues conduct of the business of the Company or profits of any Transferred SubsidiarySubsidiary as currently conducted and as currently proposed to be conducted;
(xii) any Contract agreement under which the Company or any Subsidiary is restricted from selling, licensing or otherwise distributing any of indemnification its technology or guaranty to products, or providing services to, customers or potential customers or any Person not made class of customers, in any geographic area, during any period of time or any segment of the ordinary course market or line of business;
(xiii) any Contract with agreement which would entitle any Governmental Entity;third party to receive a license or any other right to Intellectual Property of the Buyer or any of the Buyer’s Affiliates following the Closing; and
(xiv) any Contract relating to the acquisition other agreement (or disposition group of any business related agreements) either involving more than $25,000 or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);
(xv) any Contract under which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks not entered into in the ordinary course Ordinary Course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof;
(xxii) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with respect to actions in such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involves: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable LawsBusiness.
(b) All Contracts set forth or required The Company has delivered to be set forth the Buyer a complete and accurate copy of each agreement listed in Section 3.12 2.13 or 2.15 of the Disclosure Schedule Schedule. With respect to each agreement so listed: (includingi) the agreement is legal, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding and to the knowledge of the Company enforceable and in full force and effect; (ii) the agreement will continue to be legal, subjectvalid, binding and to its knowledge enforceable and in full force and effect immediately following the Closing in accordance with the terms thereof as in effect immediately prior to enforcementthe Closing; and (iii) neither the Company nor any Subsidiary nor, to the Enforceability Exceptions. The trueknowledge of the Company, correct any other party, is in breach or violation of, or default under, any such agreement, and complete copies of all written Business Contracts (including all amendmentsno event has occurred, supplementsis pending or, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply knowledge of the Company, is threatened, which, after the giving of notice, with applicable Information Privacy and Security Laws relating lapse of time, or otherwise, would constitute a breach or default by the Company or any Subsidiary or, to the safeguarding of Personal Data). Section 3.12(b) knowledge of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that is not in written formCompany, any other party under such agreement.
(c) Except as set forth in Section 3.12(c) Neither the Company nor any Subsidiary has been suspended or debarred from bidding on contracts or subcontracts with any Governmental Entity; no such suspension or debarment has been threatened to the Company or initiated. To the Company’s knowledge, neither the Company nor any Subsidiary has been or is now being audited or investigated by the United States Government Accounting Office, the United States Department of Defense or any of its agencies, the Defense Contract Audit Agency, the contracting or auditing function of any Governmental Entity with which it is contracting, the United States Department of Justice, the Inspector General of the Disclosure ScheduleUnited States, none of the Transferred Subsidiaries nor or any of their affiliates is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default under the Business Contracts, andprime contractor with a Governmental Entity; nor, to the Knowledge knowledge of Seller, no other party to any Business Contract is or, since July 31, 2021the Company, has any such audit or investigation been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunderthreatened. No event has occurredTo the knowledge of the Company, and, to the Knowledge of Seller, there is no circumstance or condition exists, that (with or without notice or lapse of time) will or would reasonably be expected to valid basis for (i) result in a material violation the suspension or breach debarment of the Company or any Subsidiary from bidding on contracts or subcontracts with any Governmental Entity or (ii) any claim (including any claim for return of funds to the Governmental Entity) pursuant to an audit or investigation by any of the provisions of entities named in the foregoing sentence. The Company has no agreements, contracts or commitments which require it to obtain or maintain a security clearance with any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, to the Knowledge of Seller, other communication regarding any actual or possible violation or breach of, or material default under, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights under any Business ContractGovernmental Entity.
Appears in 1 contract
Sources: Merger Agreement (Netezza Corp)
Contracts. (a) Section 3.12(a) 2.14 of the Disclosure Schedule sets forth, lists the following agreements (written or oral) to which the Seller is a party as of the date hereof, each Transferred Contract of the following typesthis Agreement:
(i) a collective bargaining any agreement (or other Contract with any labor organization, trade union, works council group of related agreements) for the lease of personal property from or similar bargaining representative (a “Collective Agreement”)to third parties;
(ii) a Contract with any Top Customer agreement (as defined below)or group of related agreements) for the purchase or sale of products or for the furnishing or receipt of services, including purchase orders covering a payment amount of $2,000,000 or more, other than specifying in each case all such agreements (A) in the ordinary course which call for performance over a period of businessmore than one year, or (B) non-disclosure agreementsin which the Seller has granted manufacturing rights, (C) sales acknowledgments, (D) "most favored nation" pricing provisions or exclusive marketing or distribution rights relating to any products or territory or has agreed to purchase orders covering a payment amount minimum quantity of under $2,000,000 goods or (E) statements of work that have been satisfied in fullservices or has agreed to purchase goods or services exclusively from a certain party;
(iii) a Contract with any Top Vendor (as defined below), including a purchase or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in full;
(iv) a Contract under which any Transferred Subsidiary has borrowed any money from, or issued any note, bond, debenture or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to or as of the Closing);
(v) a Contract agreement concerning the establishment, control, maintenance establishment or operation of a partnership, joint venture or limited liability company;
(iv) any agreement (or group of related agreements) under which it has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) or under which it has imposed (or may impose) a Security Interest on any of its assets, tangible or intangible;
(v) any agreement for the disposition of any significant portion of the assets or business of the Seller (other similar than sales of products in the Ordinary Course of Business) or any agreement for the acquisition of the assets or arrangement, business of any other entity (other than purchases of inventory or components in each case that is material to the Ordinary Course of Business);
(vi) all material Leasesany agreement concerning confidentiality or noncompetition;
(vii) a Contract (A) pursuant to which a distributor (including any affiliate of Seller) has the right to distribute employment or resell products of the Business and (B) involving aggregate payments in excess of $100,000 in the twelve (12)-month period ended January 31, 2023consulting agreement;
(viii) any Contract that is a mortgageagreement involving any current or former officer, indenture, guaranty, financial, loan director or credit agreement, security agreement stockholder of the Seller or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted Liensan Affiliate thereof;
(ix) any Contract that is agreement under which the consequences of a hedging, futures, options default or other derivative Contracttermination would reasonably be expected to have a Seller Material Adverse Effect;
(x) any Contract agreement which contains any provisions requiring the Seller to indemnify any other party (excluding indemnities contained in agreements for the acquisition purchase, sale or license of any Person or any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory products entered into in the ordinary course Ordinary Course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereof;Business); and
(xi) any royalty other agreement (or similar Contract based on the revenues group of related agreements) either involving more than $25,000 or profits of any Transferred Subsidiary;
(xii) any Contract of indemnification or guaranty to any Person not made in the ordinary course of business;
(xiii) any Contract with any Governmental Entity;
(xiv) any Contract relating to the acquisition or disposition of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);
(xv) any Contract under which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course Ordinary Course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof;
(xxii) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with respect to actions in such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involves: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable LawsBusiness.
(b) All Contracts set forth or required The Seller has delivered to the Buyer a complete and accurate copy of each agreement to be set forth in Section 3.12 of the Disclosure Schedule (includingassigned to, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contractsassumed by, the “Business Contracts”Buyer. With respect to each agreement so listed: (i) are the agreement is legal, valid, binding and enforceable and in full force and effect; (ii) for those agreements to which the Seller is a party, subject, as to enforcement, the agreement is assignable by the Seller to the Enforceability Exceptions. The true, correct and complete copies Buyer without the consent or approval of all written Business Contracts any party (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that is not in written form.
(c) Except except as set forth in Section 3.12(c) 2.4 of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been () and will continue to be subject 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 ongoing obligations in connection therewiththe Closing; and (iii) in material breach or default under neither the Business Contracts, andSeller nor, to the Knowledge knowledge of the Seller, no any other party to any Business Contract party, is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or violation of, or default thereunder. No under, any such agreement, and no event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, that (with or without notice or lapse of time) will or would reasonably be expected to (i) result in a material violation or breach of any of the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice is pending or, to the Knowledge knowledge of the Seller, other communication regarding any actual or possible violation or breach ofis threatened, which, after the giving of notice, with lapse of time, or material otherwise, would constitute a breach or default underby the Seller or, to the knowledge of the Seller, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights other party under any Business Contractsuch agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Boston Communications Group Inc)
Contracts. Schedule 3.11 of the Transport Disclosure Schedule lists each of the following contracts, leases, subleases, licenses, sublicenses, plans, arrangements, commitments and other documents and instruments ("CONTRACTS") to which Transport and its Subsidiaries are a party:
(a) Section 3.12(aany written arrangement (or group of related written arrangements) for the lease of the Disclosure Schedule sets forth, as of the date hereof, each Transferred Contract of the following types:
(i) personal property from or to third parties with annual payments exceeding $100,000 or with a collective bargaining agreement or other Contract with any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”)term exceeding one year;
(iib) any written arrangement concerning a Contract with partnership or joint venture;
(c) any Top Customer written arrangement (as defined below), including purchase orders covering a payment amount or group of $2,000,000 related written arrangements) under which any of Transport or more, other than its Subsidiaries has (A) in the ordinary course of businesscreated, (B) non-disclosure agreementsincurred, (C) sales acknowledgments, (D) purchase orders covering a payment amount of under $2,000,000 or (E) statements of work that have been satisfied in full;
(iii) a Contract with any Top Vendor (as defined below), including a purchase or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in full;
(iv) a Contract under which any Transferred Subsidiary has borrowed any money fromassumed, or issued any noteguaranteed (or may create, bondincur, debenture assume, or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to or as of the Closing);
(vguarantee) a Contract concerning the establishment, control, maintenance or operation of a partnership, joint venture or other similar agreement or arrangement, in each case that is material to the Business;
(vi) all material Leases;
(vii) a Contract (A) pursuant to which a distributor (including any affiliate of Seller) has the right to distribute or resell products of the Business and (B) involving aggregate payments Indebtedness in excess of $100,000 in the twelve (12)-month period ended January 31, 2023;
(viii) any Contract that is a mortgage, indenture, guaranty, financial, loan or credit agreement, security agreement or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted Liens;
(ix) any Contract that is a hedging, futures, options or other derivative Contract;
(x) any Contract for the acquisition of any Person or any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory in the ordinary course of business or (B) for acquisitions imposed (or dispositions that were consummated more than three (3may impose) years prior to the date hereofa Security Interest on any of its material assets, tangible or intangible;
(xid) any royalty or similar Contract based written arrangement concerning a non-competition obligation binding on the revenues or profits of any Transferred SubsidiaryTransport;
(xiie) any Contract of indemnification or guaranty written arrangement not disclosed in the Transport Disclosure Schedule pursuant to any Person not made other provision in this Section 3.11 under which the ordinary course consequences of businessa default or termination could reasonably be expected to have a Transport Material Adverse Effect;
(xiiif) any Contract contract with any Governmental Entitylabor union or contract for the employment of any officer, individual employee or other Person on a full-time, part-time or consulting basis;
(xivg) any Contract relating to the acquisition or disposition guaranty of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets obligation for borrowed money or otherwise), other than endorsements made for collection in the Ordinary Course of Business;
(xvh) any Contract under which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, material agreement or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete commitment with respect to the Business with any Person lending or investing of funds to or in other Persons;
(i) any geographic area license or royalty agreement;
(j) any other contract or group of related contracts with the ability same party (or group of any affiliate related parties) either (A) requiring payments after the date hereof to or by Transport or its Subsidiaries of any Transferred Subsidiary (other more than the Transferred Subsidiaries themselves) to solicit customers $100,000 or employees; (B) involving the grant of “most favored nation” status to any Person; not terminable by Transport or its Subsidiaries on sixty (C60) granting any exclusive rights to sell days or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Personless notice;
(xviik) any Contract that contains agreement with any employee, the benefits of which are contingent or the terms of which are materially altered upon the occurrence of a license, sublicense transaction of the nature contemplated by this Agreement involving Transport or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposesits Subsidiaries;
(xviiil) any Contract that contains a license, sublicense or other provision under agreement the benefits of which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to will be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof;
(xxii) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus increased or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of by the consummation of any occurrence of the transactions contemplated by this Agreement;
(xxivm) any Contract that provides that fees contract or expenses agreement pertaining to the acquisition or disposition of any assets outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification Ordinary Course of any officer, director, manager or employee by a Transferred Subsidiary (with respect to actions in such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involves: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliatesBusiness; and
(xxviin) any material managementother written arrangement or group of related written arrangements not entered into in the Ordinary Course of Business. Except for the equipment leases, consulting, contractor, relocation, repatriation Transport has delivered or expatriation agreement or other Contract between otherwise made available to USF a Transferred Subsidiary correct and any Business Service Provider that is not terminable at will without the payment complete copy of severance or other termination payments or benefits beyond that which is required by applicable Laws.
each written arrangement (bincluding all amendments thereto) All Contracts set forth or required to be set forth listed in Section 3.12 Schedule 3.11 of the Transport Disclosure Schedule Schedule. With respect to each written arrangement so listed: (includingi) the written arrangement is legal, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding and enforceable against Transport or its Subsidiaries which is a party thereto and in full force and effect, subject, as to enforcement, to the Enforceability Exceptions. The true, correct and complete copies of effect in all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default under the Business Contracts, and, to the Knowledge of Seller, no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, that (with or without notice or lapse of time) will or would reasonably be expected to (i) result in a material violation or breach of any of the provisions of any Business Contractrespects; (ii) give any Person assuming all consents required pursuant to Schedule 3.4 of the right Transport Disclosure Schedule are obtained, the written arrangement will continue to declare a be legal, valid, binding and enforceable and in full force and effect on identical terms immediately after the Closing Date in all material default or exercise any remedy under any Business Contractrespects; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) neither Transport nor any of its affiliates has received any written notice Subsidiaries or, to the Knowledge of SellerTransport, any other communication regarding any actual party is in material breach or possible violation default, and no event has occurred which, with notice or breach oflapse of time, or material both, would constitute a breach or default underor permit termination, modification, or acceleration under the written arrangement, except for any Business Contract. No member breaches, defaults, terminations, modifications or accelerations which have been cured or waived or which would not cause a Transport Material Adverse Effect; and (iv) to the Knowledge of the Seller Group Transport, no party (including the Transferred other than Transport or its Subsidiaries) has repudiated any provision of any such written arrangement. Neither Transport nor any of its affiliates Subsidiaries is a party to any verbal contract, agreement or other arrangement which, if reduced to written form, would be required to be listed in the Transport Disclosure Schedule under the terms of this Section 3.11. No confidentiality agreement executed in connection with potential acquisitions of or by Transport or its Subsidiaries, other than USF, grants any party exclusivity with respect to such acquisition. Transport or its Subsidiaries has waived any delivered or otherwise made available to USF correct and complete copies of their material rights under any Business Contractthe general forms of customer invoices currently used by Transport and its Subsidiaries.
Appears in 1 contract
Sources: Merger Agreement (Transport Corporation of America Inc)
Contracts. (a) Section 3.12(a3(o) of the Disclosure Schedule sets forth, as lists the following Contracts to which any of the date hereofAcquired Asset Entities is a party with respect to the Acquired Assets or the Assumed Liabilities, each Transferred Contract of the following typesin whole or in part:
(i) a collective bargaining agreement or other Contract with any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”);
(ii) a Contract with any Top Customer (as defined below), including purchase orders covering a payment amount of $2,000,000 or more, other than (A) in the ordinary course of business, (B) non-disclosure agreements, (C) sales acknowledgments, (D) purchase orders covering a payment amount of under $2,000,000 or (E) statements of work that have been satisfied in full;
(iii) a Contract with any Top Vendor (as defined below), including a purchase or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in full;
(iv) a Contract under which any Transferred Subsidiary has borrowed any money from, or issued any note, bond, debenture or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior (or group of related Contracts) for the lease of personal property to or as of the Closing);
(v) a Contract concerning the establishment, control, maintenance or operation of a partnership, joint venture or other similar agreement or arrangement, in each case that is material to the Business;
(vi) all material Leases;
(vii) a Contract (A) pursuant to which a distributor (including from any affiliate of Seller) has the right to distribute or resell products of the Business and (B) involving aggregate Person providing for lease payments in excess of $100,000 per annum;
(ii) any Contract (or group of related Contracts) for the purchase or sale of raw materials, commodities, supplies, products, or other personal property, or for the furnishing or receipt of services, the performance of which will extend over a period of more than one year, or involve consideration in excess of $100,000;
(iii) any Contract concerning a partnership or joint venture;
(iv) any Contract (or group of related Contracts) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, in excess of $100,000 or under which it has imposed a Security Interest on any of its assets, tangible or intangible;
(v) any Contract as to the twelve collection, processing, storing, sale, delivery or distribution of plasma or plasma-related products;
(12)-month period ended January 31vi) any confidentiality Contract or Contract pursuant to which any Acquired Asset Entity has agreed not to compete in any business activity;
(vii) any Contract between any Acquired Asset Entity and any of their Affiliates, 2023members or managers;
(viii) any Contract that is a mortgage, indenture, guaranty, financial, loan or credit agreement, security agreement or is a Contract relating to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties the acquisition of any Transferred Subsidiary, other than Permitted LiensAcquired Center or any material portion of any Acquired Asset Entity’s assets that would be included in the Acquired Assets if owned by the Acquired Asset Entities on the date hereof;
(ix) any Contract profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or other plan or arrangement for the benefit of any Employee or former Employee that is a hedging, futures, options or other derivative Contractnot an Employee Benefit Plan listed in §3(w) of the Disclosure Schedule;
(x) any Contract for the acquisition of any Person or any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereofcollective bargaining Contract;
(xi) any royalty or similar Contract based on for the revenues or profits employment of any Transferred SubsidiaryEmployee or prospective Employee on a full-time, part-time, consulting, or other basis providing annual compensation in excess of $75,000 or providing severance benefits;
(xii) any Contract of indemnification under which it has advanced or guaranty loaned any amount to any Person not made in Employees outside the ordinary course Ordinary Course of businessBusiness;
(xiii) any Contract with any Governmental Entityunder which the consequences of a default or termination would reasonably be expected to have a Material Adverse Effect;
(xiv) any Contract relating to the acquisition with medical directors or disposition of other licensed physicians for any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);Acquired Centers; or
(xv) any Contract under which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;
(xvi) any other Contract (Aor group of related Contracts) containing covenants that restrict or limit in any material respect the ability performance of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary involves consideration in excess of $1,500,000 in the aggregate, whether 100,000 or not made in the ordinary course of business consistent with past practices, which has is material ongoing obligations following the date hereof;
(xxii) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation operation of any of the transactions contemplated by this Agreement;
Acquired Centers. The Acquired Asset Entities have delivered to the Buyer a correct and complete copy of each written Contract listed in §3(o) of the Disclosure Schedule (xxivas amended to date) any and a written summary setting forth the terms and conditions of each oral Contract that provides that fees or expenses referred to in §3(o) of any outside accountantsthe Disclosure Schedule. Such Contracts constitute all Contracts necessary to operate the Acquired Centers, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with as presently operated. With respect to actions in each such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involvesContract: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individuallyContract is legal, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Laws.
(b) All Contracts set forth or required to be set forth in Section 3.12 of the Disclosure Schedule (including, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding binding, enforceable, and in full force and effect, subject, as to enforcement, effect with respect to the Enforceability Exceptions. The true, correct and complete copies of all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default under the Business Contracts, Acquired Asset Entity and, to the Knowledge of Sellerthe Acquired Asset Entities, with respect to each other party thereto; (B) the Contract will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated hereby (including the assignments and assumptions referred to in §2 above); (C) the applicable Acquired Asset Entity is not, and to the Knowledge of the Acquired Asset Entities, no other party to any Business Contract thereto is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No default, and no event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, that (occurred which with or without notice or lapse of time) will time would constitute a breach or would reasonably be expected to default by the applicable Acquired Asset Entity (i) result in a material violation or breach of any of the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, to the Knowledge of Sellerthe Acquired Asset Entities, by any other communication regarding any actual or possible violation or breach ofparty thereto), or material default underpermit termination, modification, or acceleration, under the Contract; and (D) no party has repudiated any Business Contract. No member provision of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights under any Business Contract.
Appears in 1 contract
Sources: Asset Purchase Agreement (Talecris Biotherapeutics Holdings Corp.)
Contracts. (a) Section 3.12(a) 3.14 of the Disclosure Schedule sets forth, Schedules lists the following agreements (written or oral) to which BMR or CCT is a party as of the date hereof, each Transferred Contract of the following typesthis Agreement:
(i) any agreement (or group of related agreements) for the lease of personal property from or to third parties providing for lease payments in excess of $10,000 per annum or having a collective bargaining agreement or other Contract with any labor organization, trade union, works council or similar bargaining representative remaining term longer than twelve (a “Collective Agreement”)12) months;
(ii) a Contract with any Top Customer agreement (as defined below), including or group of related agreements) for the purchase orders covering a payment amount or sale of $2,000,000 products or more, other than for the furnishing or receipt of services (A) in the ordinary course which calls for performance over a period of businessmore than one year, (B) non-disclosure agreements, which involves more than the sum of $500,000 (C) sales acknowledgments, in which BMR or CCT has granted "most favored nation" pricing provisions or (D) purchase orders covering a payment amount of under $2,000,000 which is not terminable (without additional consideration or penalty) upon not more than ninety (E90) statements of work that have been satisfied in fulldays prior written notice to the other party;
(iii) a Contract with any Top Vendor (as defined below), including a purchase or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in full;
(iv) a Contract under which any Transferred Subsidiary has borrowed any money from, or issued any note, bond, debenture or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to or as of the Closing);
(v) a Contract agreement concerning the establishment, control, maintenance establishment or operation of a partnership, joint venture or other similar agreement or arrangement, in each case that is material to the Businesslimited liability company;
(viiv) all material Leasesany agreement (or group of related agreements) under which BMR or CCT has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) involving more than $10,000 or under which BMR or CCT has imposed (or may impose) a Lien on any of its assets, tangible or intangible;
(viiv) a Contract (A) pursuant to which a distributor (including any affiliate agreement for the disposition of Seller) has the right to distribute or resell products any significant portion of the Business and (B) involving aggregate payments in excess of $100,000 in the twelve (12)-month period ended January 31, 2023;
(viii) any Contract that is a mortgage, indenture, guaranty, financial, loan or credit agreement, security agreement or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties business of BMR or CCT or any Transferred Subsidiary, other than Permitted Liens;
(ix) any Contract that is a hedging, futures, options or other derivative Contract;
(x) any Contract agreement for the acquisition of any Person the assets or any business unit thereof or the disposition of any assets, other entity (other than (A) Contracts for acquisitions or dispositions purchases of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereof;
(xi) any royalty or similar Contract based on the revenues or profits of any Transferred Subsidiary;
(xii) any Contract of indemnification or guaranty to any Person not made in the ordinary course of business;
(xiii) any Contract with any Governmental Entity;
(xiv) any Contract relating to the acquisition or disposition of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);
(xvvi) any Contract agreement concerning exclusivity or confidentiality;
(vii) any employment or consulting agreement;
(viii) any agreement involving any current or former officer, director or stockholder of BMR or CCT or an affiliate thereof;
(ix) any agreement under which the Transferred Subsidiaries consequences of a default or termination would reasonably be expected to have an obligation with respect to an “earn out,” contingent purchase price, a material adverse effect on BMR or similar contingent payment obligationCCT;
(xvix) any Contract agreement which contains any provisions requiring BMR or CCT to indemnify any other party (A) containing covenants that restrict or limit excluding indemnities contained in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely agreements for the inclusion provision of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course of business for inclusion in BMR and CCT's customary form a copy of such Trademark in a customer list or similar immaterial marketing purposeswhich has been provided to Buyer);
(xixxi) a Contract any agreement that is required could reasonably be expected to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) have the effect of Regulation S-K under prohibiting or impairing the Securities Actconduct of the business of BMR, CCT or Buyer or any of their respective Subsidiaries;
(xxxii) any Contract between agreement under which BMR or CCT is restricted from providing services to customers or potential customers in any member geographic area, during any period of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;time; and
(xxixiii) except for Excluded Obligations, any Contract other agreement (or group of related agreements) either involving capital expenditures by a Transferred Subsidiary in excess of more than $1,500,000 in the aggregate, whether 500,000 or not made entered into in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof;
(xxii) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with respect to actions in such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involves: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Lawsbusiness.
(b) All Contracts set forth or required BMR has delivered to be set forth Buyer a complete and accurate copy of each agreement listed in Section 3.12 3.14 of the Disclosure Schedule Schedules (includingthe "Scheduled Contracts"). With respect to each agreement so listed: (i) the agreement is legal, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding and enforceable and in full force and effect; (ii) for those agreements to which BMR is a party, subjectexcept for agreements requiring Third Party Consent referenced in Section 5.10 below, the agreement is assignable by BMR to Buyer without the consent or approval of any party and 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 enforcementthe Closing; (iii) neither BMR nor CCT nor, to the Enforceability Exceptions. The trueknowledge of BMR or CCT, correct and complete copies of all written Business Contracts (including all amendmentsany other party, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default under the Business Contractsviolation of, and, to the Knowledge of Seller, no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No under, any such agreement, and no event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, that (with or without notice or lapse of time) will or would reasonably be expected to (i) result in a material violation or breach of any of the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice is pending or, to the Knowledge knowledge of SellerBMR or CCT, other communication regarding any actual or possible violation or breach ofis threatened, which, after the giving of notice, with lapse of time, or material otherwise, would constitute a breach or default underby BMR or CCT or, to the knowledge of BMR or CCT, any Business Contract. No member other party under such agreement and (iv) all services rendered or performed by or on behalf of BMR or CCT pursuant to the Seller Group (including clinical trials contracts that are included in the Transferred Subsidiaries) nor any of its affiliates has waived any of their CCT Contracts at the date hereof and prior to the Closing Date will have been rendered and performed in all material rights respects in compliance with the provisions and protocols established under any Business Contractsuch contracts and in a professional, efficient and timely manner.
Appears in 1 contract
Contracts. (a) As of the date of this Agreement, except as set forth in Section 3.12(a) 2.7 of the Disclosure Schedule sets forthSchedule, the Acquired Contracts do not include, and, except for the Shared Contracts, there are no Contracts of Seller in effect on the date hereof that relate primarily to the Acquired Assets and to which, effective as of the date hereofClosing, each Transferred Contract of the following typesAcquired Assets will be subject that include:
(i) a collective bargaining any agreement or other Contract with any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”);
(ii) a Contract with any Top Customer (as defined below), including purchase orders covering a payment amount of $2,000,000 or more, entered into other than (A) in the ordinary course of business, (B) non-disclosure agreements, (C) sales acknowledgments, (D) purchase orders covering a payment amount of under $2,000,000 or (E) statements of work that have been satisfied in full;
(iii) a Contract with any Top Vendor (as defined below), including a purchase or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in full;
(iv) a Contract under which any Transferred Subsidiary has borrowed any money from, or issued any note, bond, debenture or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to or as of the Closing);
(v) a Contract concerning the establishment, control, maintenance or operation of a partnership, joint venture or other similar agreement or arrangement, in each case that is material to the Business;
(vi) all material Leases;
(vii) a Contract (A) business pursuant to which a distributor (including any affiliate of Seller) has the right to distribute or resell products of the Business and (B) involving aggregate payments in excess of Seller received more than $100,000 [***] in the twelve (12)-month period year ended January December 31, 2022 or would reasonably be expected to receive more than such amount in the year ending December 31, 2023;
(viiiii) any Contract lease or other agreement under which Seller is lessee of, or holds or operates, any machinery, equipment or other tangible personal property owned by a third party that is material to the ownership, operation and control of the Acquired Assets, taken as a mortgage, indenture, guaranty, financial, loan or credit agreement, security whole.
(iii) any agreement or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, entered into other than Permitted Liens;
(ix) any Contract that is a hedging, futures, options or other derivative Contract;
(x) any Contract for the acquisition of any Person or any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory in the ordinary course of business for the purchase of services, materials, supplies or (B) for acquisitions or dispositions that were consummated equipment which involved the payment by Seller of more than three (3) years prior $[***] in the year ended December 31, 2022 or would reasonably be expected to involve the date hereofpayment of more than such amount in the year ending December 31, 2023;
(xiiv) any royalty agreement establishing a partnership or similar Contract based on the revenues joint venture or profits of any Transferred Subsidiary;
(xii) any Contract of indemnification research, collaboration or guaranty to any Person not made in the ordinary course of business;
(xiii) any Contract with any Governmental Entity;
(xiv) any Contract relating to the acquisition or disposition of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);
(xv) any Contract under which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Propertydevelopment agreement, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of any such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks agreement entered into in the ordinary course of business for inclusion of such Trademark in a customer list that is terminable by Seller without penalty with 60 days’ or similar immaterial marketing purposesless notice;
(xixv) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under any agreement evidencing indebtedness for borrowed money or any guaranty thereof or any Security Interest in the Securities ActAcquired Assets;
(xxvi) any Contract agreement between Seller and any member director, officer or employee of the Seller Group or any of its affiliates (Seller, other than a Transferred Subsidiary), on the one hand, and offer letters for at-will employment that do not provide for any Transferred Subsidiaries, on the other hand, that is currently in effectseverance benefit upon termination of employment;
(xxivii) any Contract involving capital expenditures contract, agreement or other arrangement granting a right of first offer, right of first refusal, or any purchase rights to any Acquired Asset that is material to the ownership and use of the Acquired Assets;
(viii) any contract, agreement or other arrangement imposing a non-competition or non-solicitation obligation, including exclusive dealing arrangements, that, following the Closing, would be binding on Buyer, except for any such contract, agreement or arrangement that is terminable by Seller without penalty or payment upon 60 days’ or less notice;
(ix) any licenses of any material Intellectual Property owned by a Transferred Subsidiary in excess of $1,500,000 in the aggregatethird party, whether other than “off-the-shelf” or not made “shrink wrap” licenses entered in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof;business; or
(xxiix) any Contract relating settlement agreements related to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;Acquired Assets.
(xxiiib) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that Seller has been made available to Purchaser Buyer a correct and (B) any complete copy of each Acquired Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant and Shared Contract. With respect to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;Acquired Contract and Shared Contract:
(xxivi) any such Contract that provides that fees or expenses is a legal, valid, binding and enforceable obligation of any outside accountantsSeller and, external legal counsel or to Seller’s Knowledge, of each other outside advisors retained party thereto (except as enforceability may be limited by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with respect to actions in such capacityEnforceability Exceptions);
(xxviii) any Contract entered into since January 31there exist no material breaches or defaults of Seller thereunder;
(iii) to Seller’s Knowledge, 2023 (other than Employee Benefit Plans) no event has occurred and no condition exists that contemplates or involves: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individuallyconstitutes, or $1,000,000 in which, with notice and/or the aggregate when taken together with all other Contracts involving passage of time would constitute, a material breach, a default or event of default by Seller under such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliatesContract; and
(xxviiiv) Seller has not made a claim with respect to, or to Seller’s Knowledge, received notice of, any material management, consulting, contractor, relocation, repatriation material breach or expatriation agreement or other Contract between a Transferred Subsidiary and default by any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Laws.party thereto.
(bc) All Contracts set forth or required to be set forth in Section 3.12 of the Disclosure Schedule (including, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding and in full force and effect, subject, as to enforcement, to the Enforceability Exceptions. The true, correct and complete copies of all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b2.7(c) of the Disclosure Schedule provides an accurate and complete description sets forth all of the material terms of each Business Contract that is not Milestone Payments (as defined in written form.
(cthe [***] License) Except as set forth in Section 3.12(c) previously paid by Seller under the [***] License and all of the Disclosure Schedule, none credits that have accrued to either Seller or [***] (“[***]”) under the [***] Agreements as of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (Closing Date. There are no payments currently due and continue payable to be subject to ongoing obligations [***] under or in connection therewith) in material breach or default under with the Business Contracts, and, to the Knowledge of Seller, no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, that (with or without notice or lapse of time) will or would reasonably be expected to (i) result in a material violation or breach of any of the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, to the Knowledge of Seller, other communication regarding any actual or possible violation or breach of, or material default under, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights under any Business Contract[***] Agreements.
Appears in 1 contract
Sources: Asset Purchase Agreement (Precision Biosciences Inc)
Contracts. (a) Section 3.12(a) Schedule 4.28 sets forth a list of the Disclosure Schedule sets forth, as of the date hereof, each Transferred Contract of the following types:
(i) a collective bargaining agreement or other Contract with any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”);
(ii) a Contract with any Top Customer (as defined below), including purchase orders covering a payment amount of $2,000,000 or more, other than (A) in the ordinary course of business, (B) non-disclosure agreements, (C) sales acknowledgments, (D) purchase orders covering a payment amount of under $2,000,000 or (E) statements of work that have been satisfied in full;
(iii) a Contract with any Top Vendor (as defined below), including a purchase or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in full;
(iv) a Contract under which any Transferred Subsidiary has borrowed any money from, or issued any note, bond, debenture or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to or as of the Closing);
(v) a Contract concerning the establishment, control, maintenance or operation of a partnership, joint venture or other similar agreement or arrangement, in each case that is material to the Business;
(vi) all material Leases;
(vii) a Contract (A) pursuant contracts to which a distributor (including Vintacom or any affiliate of Seller) has the right to distribute or resell products of the Business and (B) involving aggregate payments in excess of $100,000 in the twelve (12)-month period ended January 31, 2023;
(viii) any Contract that is a mortgage, indenture, guaranty, financial, loan or credit agreement, security agreement or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted Liens;including (the “Designated Contracts”):
(ixa) any Contract that is a hedgingagreement (or group of related agreements) for the purchase or sale of raw materials, futurescommodities, options supplies, products, or other derivative Contract;
(x) any Contract personal property, or for the acquisition furnishing or receipt of any Person or any business unit thereof or the disposition of any assetsservices, other than (A) Contracts for acquisitions or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereof;
(xi) any royalty or similar Contract based on the revenues or profits of any Transferred Subsidiary;
(xii) any Contract of indemnification or guaranty to any Person not made entered into in the ordinary course of business;
(xiiib) any Contract with any Governmental Entityagreement concerning a partnership, joint venture or limited liability company venture;
(xivc) any Contract relating agreement (or group of related agreements) under which any of them has created, incurred, assumed, or guaranteed any Indebtedness for borrowed money, in excess of $10,000 or pursuant to the acquisition which a Lien has been placed on any of their assets, tangible or disposition intangible, in excess of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise)$10,000;
(xvd) any Contract under which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, agreement concerning confidentiality or similar contingent payment obligationnon-competition;
(xvie) any Contract agreement between any Shareholder or their Affiliates and Vintacom or any Subsidiary;
(Af) containing covenants that restrict any agreement under which Vintacom or limit in any material respect the ability Subsidiary has advanced or loaned monies to any director, officer, or employee of Vintacom or any Transferred Subsidiary;
(g) any agreement which restricts Vintacom or any Subsidiary to engage from engaging in the Business anywhere in the world;
(h) any settlement or compete with respect similar agreement, the performance of which will require Vintacom or any Subsidiary to pay, or entitles Vintacom or any Subsidiary to receive, after the Business with Closing Date consideration in excess of $10,000;
(i) any Person agreement relating to any acquisition, divestiture, merger or similar transaction involving consideration in excess of $10,000, which contains representations, warranties, covenants, indemnities or other obligations which are still in effect;
(j) any geographic area or the ability powers of any affiliate of any Transferred Subsidiary attorney (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant a power of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into attorney given in the ordinary course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposesroutine Tax matters);
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xxk) any Contract between any member contract relating to pending capital expenditures of the Seller Group Vintacom or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof10,000;
(xxiil) any Contract relating to agreement under which Vintacom or any Subsidiary has advanced or loaned any other Person amounts in the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;aggregate exceeding $10,000; and
(xxiii) (Am) any Contract with an Employee that provides for annual base compensation other agreement (or group of related agreements) the performance of which involves consideration in excess of $80,000 that materially deviates from 50,000. To the standard form extent reflected on Schedule 4.28, Vintacom has delivered, or made available, to THK, a correct and complete copy of employment each written agreement listed in Schedule 4.28 (as amended to date) and a written summary setting forth the material terms and conditions of each oral agreement, if any, referred to in Schedule 4.28. Each agreement is the legal, valid, binding obligation of the Transferred Subsidiaries parties thereto, enforceable against each party. No party to any agreement is in material breach or default, and no event has occurred that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention notice or stay bonus, severance lapse of time would constitute a material breach or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vestingdefault, or other material compensation amount permit termination, modification, or benefits thatacceleration, in each case, will be payable or due as a result of under the consummation of any of agreement. Consummating the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby other Documents will be owed and paid by a Transferred Subsidiary;
(xxv) not cause Vintacom or any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with respect to actions in such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involves: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Laws.
(b) All Contracts set forth or required to be set forth in Section 3.12 of the Disclosure Schedule (including, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding and in full force and effect, subject, as to enforcement, to the Enforceability Exceptions. The true, correct and complete copies of all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default under the Business Contracts, and, to the Knowledge of Seller, no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, that (with or without notice or lapse of time) will or would reasonably be expected to (i) result in a material violation or breach of any of the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, to the Knowledge of Seller, other communication regarding any actual or possible violation or breach of, or material in default under, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights under any Business ContractDesignated Contracts.
Appears in 1 contract
Contracts. (a) Section 3.12(a3(p) of the Company Disclosure Schedule sets forth, as of the date hereof, each Transferred Contract of lists the following typescontracts and other agreements, written or oral, to which the Company or any of its Subsidiary is a party:
(i) a collective bargaining any agreement (or other Contract with group of related agreements) for the lease of personal property to or from any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”)Person providing for lease payments in excess of $40,000 per annum;
(ii) any agreement (or group of related agreements) for the purchase or sale of raw materials, commodities, supplies, products, or other personal property, or for the furnishing or receipt of services, the performance of which will extend over a Contract with any Top Customer (as defined below)period of more than one year, including purchase orders covering or which to the Knowledge of the Company, will result in a payment amount loss to the Company or its Subsidiary, or which involves consideration, in excess of $2,000,000 or more, other than (A) in the ordinary course of business, (B) non-disclosure agreements, (C) sales acknowledgments, (D) purchase orders covering a payment amount of under $2,000,000 or (E) statements of work that have been satisfied in full;40,000; 25
(iii) any agreement concerning a Contract with any Top Vendor (as defined below), including a purchase partnership or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in fulljoint venture;
(iv) a Contract any agreement (or group of related agreements) under which any Transferred Subsidiary either of them has borrowed any money fromcreated, incurred, assumed, or issued guaranteed any noteIndebtedness, bondunder which either of them has imposed a Security Interest on any of its assets, debenture tangible or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to or as of the Closing)intangible;
(v) any agreement imposing a Contract concerning confidentiality or noncompetition obligation on the establishment, control, maintenance Company or operation of its Subsidiary or any material agreement imposing a partnership, joint venture confidentiality or other similar agreement or arrangement, in each case that is material to the Businessnoncompetition obligation on any third party;
(vi) all material Leasesany agreement involving the Shareholders to which the Company or its Subsidiary is a party;
(vii) a Contract (A) pursuant to which a distributor (including any affiliate profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or other plan or arrangement for the benefit of Seller) has the right to distribute any of its current or resell products of the Business former directors, officers, and (B) involving aggregate payments in excess of $100,000 in the twelve (12)-month period ended January 31, 2023employees;
(viii) any Contract that is a mortgage, indenture, guaranty, financial, loan or credit agreement, security agreement or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties (A) for the employment of any Transferred Subsidiaryindividual on a full-time, part-time, consulting, or other than Permitted Liensbasis providing annual compensation in excess of $60,000 or (B) providing severance benefits;
(ix) any Contract that is a hedgingagreement under which any of them have advanced or loaned any amount to any of their directors, futuresofficers, options or other derivative Contractand employees;
(x) any Contract for agreement under which the acquisition consequences of any Person a default or any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory termination would have an adverse effect in the ordinary course amount of business $40,000 or (B) for acquisitions more on the business, financial condition, or dispositions that were consummated more than three (3) years prior to operations of the date hereof;Company or its Subsidiary; or
(xi) any royalty other agreement (or similar Contract based on group of related agreements) the revenues or profits performance of any Transferred Subsidiary;
(xii) any Contract of indemnification or guaranty to any Person not made in the ordinary course of business;
(xiii) any Contract with any Governmental Entity;
(xiv) any Contract relating to the acquisition or disposition of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);
(xv) any Contract under which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary involves consideration in excess of $1,500,000 40,000. The Company has delivered or made available to the Buyer a true, correct and complete copy of each written agreement listed in Section 3(p) of the aggregateCompany Disclosure Schedule (as amended to date) and a written summary setting forth the terms and conditions of each oral agreement referred to in Section 3(p) of the Company Disclosure Schedule. Except as described in Section 3(p) of the Company Disclosure Schedule, whether there is no written agreement between either the Company or not made in its Subsidiary and Hermetic-Pumpen GmbH or its affiliates, which relates to the ordinary course Hermetic Pump Business. With respect to the customer orders of business the Company and its Subsidiary, all such orders have been priced at an amount consistent with past practices, which has material ongoing obligations following the date hereof;
(xxii) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with practice. With respect to actions in each such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involvesagreement: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individuallyagreement is legal, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Laws.
(b) All Contracts set forth or required to be set forth in Section 3.12 of the Disclosure Schedule (including, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding binding, enforceable, and in full force and effect, subjecteffect against the Company or its Subsidiary, as to enforcementthe case may be, and to the Enforceability Exceptions. The trueKnowledge of the Company against the other parties thereto, correct and complete copies of all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions applicable bankruptcy, insolvency, fraudulent conveyance or transfer, reorganization, arrangement, moratorium or other similar laws from time to time affecting creditor’s rights generally; (B) to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) Knowledge of the Disclosure Schedule provides an accurate and complete description of Company, the material terms of each Business Contract that is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and agreement will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated hereby, subject to ongoing obligations in connection therewithapplicable bankruptcy, insolvency, fraudulent conveyance or transfer, reorganization, arrangement, moratorium or other similar laws from time to time affecting creditor’s rights generally; (C) neither the Company nor its Subsidiary are, and to the Knowledge of the Company, no other party, is in material breach or default default, and no event has occurred which with notice or lapse of time would constitute a material breach or default, or permit termination, modification, or acceleration, under such agreement; (D) neither the Business ContractsCompany nor its Subsidiary, and, and to the Knowledge of Seller, the Company no other party to has repudiated any Business Contract is or, since July 31, 2021, has been provision of such agreement; and (and continue to be subject to ongoing obligations E) such agreement does not prohibit or require consent in connection therewith) in material breach the event of a change of control of the Company or default thereunderits Subsidiary. No event has occurred, and, to Neither the Knowledge of Seller, no circumstance or condition exists, that (with or without notice or lapse of time) will or would reasonably be expected to Company nor its Subsidiary (i) result in a material violation has engaged the Arbitrator Firm to perform any services for either of them during the three (3) year period ending on the date hereof or breach of any of the provisions of any Business Contract; (ii) give is currently engaged in any Person kind of discussions with the right Arbitrator Firm with respect to declare a material default its possible engagement to perform any services for the Company or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, to the Knowledge of SellerSubsidiary, other communication regarding any actual or possible violation or breach of, or material default under, any Business Contract. No member than as contemplated by Section 2(j)(iii) of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights under any Business Contractthis Agreement.
Appears in 1 contract
Contracts. (a) Section 3.12(a4(p) of the Disclosure Schedule sets forth, as of the date hereof, each Transferred Contract of lists the following typescontracts and other agreements to which Strobic is a party:
(i) a collective bargaining any agreement (or other Contract with group of related agreements) for the lease of personal property to or from any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”)Person;
(ii) any agreement (or group of related agreements) for the purchase or sale of raw materials, commodities, supplies, products, or other personal property, or for the furnishing or receipt of services, the performance of which will extend over a Contract with any Top Customer (as defined below), including purchase orders covering period of more than one year or result in a payment amount of $2,000,000 or more, other than (A) in the ordinary course of business, (B) non-disclosure agreements, (C) sales acknowledgments, (D) purchase orders covering a payment amount of under $2,000,000 or (E) statements of work that have been satisfied in fullloss to Strobic;
(iii) any agreement concerning a Contract with any Top Vendor (as defined below), including a purchase partnership or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in fulljoint venture;
(iv) a Contract any agreement (or group of related agreements) under which any Transferred Subsidiary it has borrowed any money fromcreated, incurred, assumed, or issued guaranteed any noteindebtedness for borrowed money, bondor any capitalized lease obligation, debenture or other evidence under which it has imposed a Security Interest on any of indebtedness of borrowed money toits assets, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to tangible or as of the Closing)intangible;
(v) a Contract any agreement concerning the establishment, control, maintenance confidentiality or operation of a partnership, joint venture or other similar agreement or arrangement, in each case that is material to the Businessnon-competition;
(vi) all material Leasesany agreement involving Stockholders of Strobic or its Affiliates;
(vii) a Contract (A) pursuant to which a distributor (including any affiliate profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or other plan or arrangement for the benefit of Seller) has the right to distribute its current or resell products of the Business former directors, officers, and (B) involving aggregate payments in excess of $100,000 in the twelve (12)-month period ended January 31, 2023employees;
(viii) any Contract that is a mortgage, indenture, guaranty, financial, loan or credit collective bargaining agreement, security agreement or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted Liens;
(ix) any Contract that is agreement for the employment of any individual on a hedgingfull-time, futurespart-time, options consulting, or other derivative Contractbasis or providing severance benefits;
(x) any Contract for agreement under which it has advanced or loaned any amount to any of its directors, officers, and employees outside the acquisition Ordinary Course of any Person or any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereofBusiness;
(xi) any royalty agreement under which the consequences of a default or similar Contract based termination could have a material adverse effect on the revenues business, financial condition, operations, results of operations, or profits future prospects of any Transferred Subsidiary;Strobic; or
(xii) any Contract other agreement (or group of indemnification or guaranty to any Person not made in related agreements) the ordinary course performance of business;
(xiii) any Contract with any Governmental Entity;
(xiv) any Contract relating to the acquisition or disposition of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);
(xv) any Contract under which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary involves consideration in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof;5,000.
(xxii) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with respect to actions in such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involves: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individuallyagreement is legal, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Laws.
(b) All Contracts set forth or required to be set forth in Section 3.12 of the Disclosure Schedule (including, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding binding, enforceable, and in full force and effect; (B) with the exception of a certain Salary Continuation Benefits Agreement between ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and Strobic dated April 1, subject1984, as to enforcementwhich is hereby terminated, to the Enforceability Exceptions. The true, correct and complete copies of all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and agreement will continue to be subject to ongoing obligations legal, valid, binding, enforceable, and in connection therewithfull force and effect on identical terms following the consummation of the transactions contemplated hereby; (C) no party is in material breach or default under the Business Contractsdefault, and, to the Knowledge of Seller, and no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, that (occurred which with or without notice or lapse of timetime would constitute a breach or default, or permit termination, modification, or acceleration, under the agreement; and (D) will or would reasonably be expected to (i) result in a material violation or breach of no party has repudiated any provision of the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, to the Knowledge of Seller, other communication regarding any actual or possible violation or breach of, or material default under, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights under any Business Contractagreement.
Appears in 1 contract
Sources: Merger Agreement (Met Pro Corp)
Contracts. (a) Section 3.12(a) 2.13 of the Disclosure Schedule sets forth, lists the following agreements (written or oral) to which the Company or any Company Subsidiary is a party as of the date hereof, each Transferred Contract of this Agreement (other than the following types:Transaction Documentation):
(i) any agreement (or group of related agreements) for the lease of personal property from or to third parties providing for lease payments in excess of $1,000 per annum or having a collective bargaining agreement or other Contract with any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”)remaining term longer than 12 months;
(ii) a Contract with any Top Customer agreement (as defined below), including or group of related agreements) for the purchase orders covering a payment amount or sale of $2,000,000 products or more, other than for the furnishing or receipt of services (A) in the ordinary course which calls for performance over a period of businessmore than one year, (B) non-disclosure agreementswhich and involves more than the sum of $1,000, or (C) sales acknowledgmentsin which the Company or any Company Subsidiary has granted manufacturing rights, (D) “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to any products or territory or has agreed to purchase orders covering a payment amount minimum quantity of under $2,000,000 goods or (E) statements of work that have been satisfied in fullservices or has agreed to purchase goods or services exclusively from a certain party;
(iii) any agreement which, to the knowledge of the Company, establishes a Contract with any Top Vendor (as defined below), including a purchase partnership or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in fulljoint venture;
(iv) a Contract any agreement (or group of related agreements) under which it has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) involving more than $1,000 or under which it has imposed (or may impose) a Security Interest on any Transferred Subsidiary has borrowed any money fromof its assets, tangible or issued any note, bond, debenture or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to or as of the Closing)intangible;
(v) a Contract any agreement concerning the establishment, control, maintenance confidentiality or operation of a partnership, joint venture or other similar agreement or arrangement, in each case that is material to the Businessnoncompetition;
(vi) all material Leasesany employment with a term of more than one year or consulting agreement;
(vii) a Contract (A) pursuant to which a distributor (including any agreement involving any officer, director or stockholder of the Company or any affiliate of Seller(as defined in Rule 12b-2 under the Exchange Act) has the right to distribute or resell products of the Business and thereof (B) involving aggregate payments in excess of $100,000 in the twelve (12)-month period ended January 31, 2023an “Affiliate”);
(viii) any Contract that is a mortgage, indenture, guaranty, financial, loan or credit agreement, security agreement or is commitment for capital expenditures in excess of $1,000, for a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted Lienssingle project (it being represented and warranted that the liability under all undisclosed agreements and commitments for capital expenditures does not exceed $1,000 in the aggregate for all projects);
(ix) any Contract that is agreement under which the consequences of a hedging, futures, options default or other derivative Contracttermination would reasonably be expected to have a Company Material Adverse Effect;
(x) any Contract agreement which contains any provisions requiring the Company or any Company Subsidiary to indemnify any other party thereto (excluding indemnities contained in agreements for the acquisition purchase, sale or license of any Person or any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory products entered into in the ordinary course Ordinary Course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereofBusiness);
(xi) any royalty other agreement (or similar Contract based on group of related agreements) either involving more than $1,000 or not entered into in the revenues or profits Ordinary Course of any Transferred Subsidiary;Business; and
(xii) any Contract of indemnification or guaranty to any Person not made in the ordinary course of business;
(xiii) any Contract with any Governmental Entity;
(xiv) any Contract relating to the acquisition or disposition of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);
(xv) any Contract under which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Propertyagreement, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof;
(xxii) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) , relating to the future sales of securities of the Company or any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Company Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with respect to actions in such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involves: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Laws.
(b) All Contracts set forth The Company has delivered or required made available to be the Parent a complete and accurate copy of each agreement listed in Section 2.13 of the Disclosure Schedule. With respect to each agreement so listed, and except as set forth in Section 3.12 2.13 of the Disclosure Schedule Schedule: (includingi) the agreement is legal, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding and enforceable and in full force and effect; (ii) the agreement will continue to be legal, subjectvalid, 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 enforcementthe Closing; and (iii) neither the Company nor any Company Subsidiary nor, to the Enforceability Exceptions. The true, correct and complete copies of all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) knowledge of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that Company, any other party, is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default under the Business Contractsviolation of, and, to the Knowledge of Seller, no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No under, any such agreement, and no event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, that (with or without notice or lapse of time) will or would reasonably be expected to (i) result in a material violation or breach of any of the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice is pending or, to the Knowledge knowledge of Sellerthe Company, is threatened, which, after the giving of notice, with lapse of time, or otherwise, would constitute a breach or default by the Company or any Company Subsidiary or, to the knowledge of the Company, any other communication regarding party under such contract, except for any actual or possible breach, violation or breach of, or material default under, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates that has waived any of their material rights under any Business Contractnot had and would not reasonably be anticipated to have a Company Material Adverse Effect.
Appears in 1 contract
Contracts. (a) Section 3.12(a) 2.14 of the Disclosure Schedule sets forth, lists the following agreements (written or oral) to which the Company is a party as of the date hereof, each Transferred Contract of this Agreement (other than this Agreement and the following types:Ancillary Agreements):
(i) any agreement (or group of related agreements) for the lease of personal property from or to third parties providing for lease payments in excess of $5,000 per annum or having a collective bargaining agreement or other Contract with any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”)remaining term longer than three months;
(ii) a Contract with any Top Customer agreement (as defined below), including or group of related agreements) for the purchase orders covering a payment amount or sale of $2,000,000 products or more, other than for the furnishing or receipt of services (A) in the ordinary course which calls for performance over a period of businessmore than one year, (B) non-disclosure agreementswhich involves more than the sum of $5,000, or (C) sales acknowledgmentsin which the Company has granted manufacturing rights, (D) "most favored nation" pricing provisions or marketing or distribution rights relating to any products or territory or has agreed to purchase orders covering a payment amount minimum quantity of under $2,000,000 goods or (E) statements of work that have been satisfied in fullservices or has agreed to purchase goods or services exclusively from a certain party;
(iii) a Contract with any Top Vendor (as defined below), including a purchase or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in full;
(iv) a Contract under which any Transferred Subsidiary has borrowed any money from, or issued any note, bond, debenture or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to or as of the Closing);
(v) a Contract agreement concerning the establishment, control, maintenance establishment or operation of a partnership, joint venture or limited liability company;
(iv) any agreement (or group of related agreements) under which it has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) involving more than $5,000 or under which it has imposed (or may impose) a Security Interest on any of its assets, tangible or intangible;
(v) any agreement for the disposition of any significant portion of the assets or business of the Company (other similar than sales of products in the Ordinary Course of Business) or any agreement for the acquisition of the assets or arrangement, business of any other entity (other than purchases of inventory or components in each case that is material to the Ordinary Course of Business);
(vi) all material Leasesany agreement concerning exclusivity or confidentiality;
(vii) a Contract (A) pursuant to which a distributor (including any affiliate of Seller) has the right to distribute employment or resell products of the Business and (B) involving aggregate payments in excess of $100,000 in the twelve (12)-month period ended January 31, 2023consulting agreement;
(viii) any Contract that is a mortgageagreement involving any current or former officer, indenture, guaranty, financial, loan manager or credit agreement, security agreement Shareholder or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted Liensan Affiliate thereof;
(ix) any Contract that is agreement under which the consequences of a hedging, futures, options default or other derivative Contracttermination would reasonably be expected to have a Company Material Adverse Effect;
(x) any Contract agreement which contains any provisions requiring the Company to indemnify any other party (excluding indemnities contained in agreements for the acquisition purchase, sale or license of any Person or any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory products entered into in the ordinary course Ordinary Course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereofBusiness);
(xi) any royalty agreement that could reasonably be expected to have the effect of prohibiting or similar Contract based on impairing the revenues conduct of the business of the Company or profits of the Buyer or any Transferred Subsidiaryof its subsidiaries as currently conducted and as currently proposed to be conducted;
(xii) any Contract agreement under which the Company is restricted from selling, licensing or otherwise distributing any of indemnification its technology or guaranty to products, or providing services to, customers or potential customers or any Person not made class of customers, in any geographic area, during any period of time or any segment of the ordinary course market or line of business;
(xiii) any Contract with agreement which would entitle any Governmental Entity;third party to receive a license or any other right to intellectual property of the Buyer or any of the Buyer's Affiliates following the Closing; and
(xiv) any Contract relating to the acquisition other agreement (or disposition group of any business related agreements) either involving more than $10,000 or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);
(xv) any Contract under which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks not entered into in the ordinary course Ordinary Course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof;
(xxii) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with respect to actions in such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involves: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable LawsBusiness.
(b) All Contracts set forth or required The Company will deliver to be set forth the Buyer a complete and accurate copy of each agreement listed in Section 3.12 2.13 or Section 2.14 of the Disclosure Schedule (including, for the avoidance of doubt, any Contract that would have been required Schedule. With respect to be identified each agreement so listed and except as disclosed in Section 3.12 2.14 of the Disclosure Schedule had Section 3.12 of Schedules: (i) the Disclosure Schedule been made at the Closing)agreement is legal, all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding and enforceable and in full force and effect; (ii) for those agreements to which the Company is a party, subjectthe agreement is assignable by the Company by operation of law to the Buyer without the consent or approval of any party and 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 enforcementthe Closing; and (iii) neither the Company nor, to the Enforceability Exceptions. The true, correct and complete copies of all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) knowledge of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that Shareholders, any other party, is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default under the Business Contractsviolation of, and, to the Knowledge of Seller, no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No under, any such agreement, and no event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, that (with or without notice or lapse of time) will or would reasonably be expected to (i) result in a material violation or breach of any of the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice is pending or, to the Knowledge knowledge of Sellerthe Shareholders, other communication regarding any actual or possible violation or breach ofis threatened, which, after the giving of notice, with lapse of time, or material otherwise, would constitute a breach or default underby the Company or, to the knowledge of the Shareholders, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights other party under any Business Contractsuch agreement.
Appears in 1 contract
Contracts. (i) Section 3.18 of the TeamStaff Disclosure Schedule lists the following contracts and other agreements to which TeamStaff is a party:
(a) Section 3.12(aany agreement (or group of related agreements) for the lease of the Disclosure Schedule sets forth, as of the date hereof, each Transferred Contract of the following types:
(i) a collective bargaining agreement or other Contract with any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”);
(ii) a Contract with any Top Customer (as defined below), including purchase orders covering a payment amount of $2,000,000 or more, other than (A) in the ordinary course of business, (B) non-disclosure agreements, (C) sales acknowledgments, (D) purchase orders covering a payment amount of under $2,000,000 or (E) statements of work that have been satisfied in full;
(iii) a Contract with any Top Vendor (as defined below), including a purchase or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in full;
(iv) a Contract under which any Transferred Subsidiary has borrowed any money from, or issued any note, bond, debenture or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior personal property to or as of the Closing);
(v) a Contract concerning the establishment, control, maintenance or operation of a partnership, joint venture or other similar agreement or arrangement, in each case that is material to the Business;
(vi) all material Leases;
(vii) a Contract (A) pursuant to which a distributor (including from any affiliate of Seller) has the right to distribute or resell products of the Business and (B) involving aggregate Person providing for lease payments in excess of $100,000 in the twelve (12)-month period ended January 31, 202350,000 per annum;
(viiib) any Contract that is a mortgage, indenture, guaranty, financial, loan or credit agreement, security agreement or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted Liens;
(ix) any Contract that is a hedging, futures, options or other derivative Contract;
(x) any Contract contracts for the acquisition of any Person or any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereof;
(xi) any royalty or similar Contract based on the revenues or profits of any Transferred Subsidiary;
(xii) any Contract of indemnification or guaranty to any Person not made in the ordinary course of business;
(xiii) any Contract with any Governmental Entity;
(xiv) any Contract relating to the acquisition or disposition of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);
(xv) any Contract under which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or PEO services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course Ordinary Course of business Business, any agreement (or group of related agreements) for inclusion the furnishing or receipt of such Trademark services, the performance of which will extend over a period of more than one year, result in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required loss to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary TeamStaff in excess of $1,500,000 50,000, or involve consideration in the aggregate, whether or not made in the ordinary course excess of business consistent with past practices, which has material ongoing obligations following the date hereof$50,000;
(xxiic) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary agreement concerning a partnership or the Business will have any material outstanding obligations after the Closingjoint venture;
(xxiii) (Ad) any Contract agreement (or group of related agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, in excess of $50,000 or under which it has imposed a Security Interest on any of its assets, tangible or intangible;
(e) any agreement concerning confidentiality or noncompetition, other than agreements arising in the Ordinary Course of Business in contracts with an Employee that provides PEO clients, employees, vendors or licensors of software products;
(f) any agreement with any of TeamStaff shareholders and their Affiliates;
(g) any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or other plan or arrangement for the benefit of its current or former directors, officers, and employees;
(h) any collective bargaining agreement;
(j) other than a contract for PEO Services in the Ordinary Course of Business, any agreement for the employment of any individual on a full-time, part-time, consulting, or other basis providing annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention 50,000 or stay bonus, providing severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreementbenefits;
(xxivk) any Contract that provides that fees agreement under which it has advanced or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with respect to actions in such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involves: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value loaned in excess of $200,000 individually5,000 to any of its directors, officers or $1,000,000 employees;
(l) any agreement under which the consequences of a default or termination could have a TeamStaff Material Adverse Effect; or
(m) other than a contract for PEO Services in the aggregate when taken together with all Ordinary Course of Business, any other Contracts involving such Person agreement (or such Person’s affiliates; or (Bgroup of related agreements) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value which involves consideration in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Laws50,000.
(b) All Contracts set forth or required to be set forth in Section 3.12 of the Disclosure Schedule (including, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding and in full force and effect, subject, as to enforcement, to the Enforceability Exceptions. The true, correct and complete copies of all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default under the Business Contracts, and, to the Knowledge of Seller, no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, that (with or without notice or lapse of time) will or would reasonably be expected to (i) result in a material violation or breach of any of the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, to the Knowledge of Seller, other communication regarding any actual or possible violation or breach of, or material default under, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights under any Business Contract.
Appears in 1 contract
Contracts. (a) Section 3.12(a) SCHEDULE 3.19 lists the following Contracts and other agreements to which the Company or any of the Disclosure Schedule sets forth, its Subsidiaries is a party as of the date hereof:
(a) any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for lease payments;
(b) any agreement (or group of related agreements) for the purchase or sale of raw materials, each Transferred Contract commodities, supplies, products or other personal property, or for the furnishing or receipt of services;
(c) any partnership or joint venture agreement; THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT REQUESTED
(d) any agreement (or group of related agreements) under which it has created, incurred, assumed or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, or under which it has imposed a Security Interest on any of its Assets, tangible or intangible;
(e) any agreement concerning confidentiality or noncompetition;
(f) any agreement with any of the following types:Stockholders and their respective Affiliates;
(g) any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance or other *** plan or arrangement (including any Employee Benefit Plan) for the benefit of its current or former directors, officers and employees;
(h) any collective bargaining agreement;
(i) any agreement for the employment of any individual on a collective bargaining agreement full-time, part-time, consulting or other Contract with any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”)basis;
(ii) a Contract with any Top Customer (as defined below), including purchase orders covering a payment amount of $2,000,000 or more, other than (A) in the ordinary course of business, (B) non-disclosure agreements, (C) sales acknowledgments, (D) purchase orders covering a payment amount of under $2,000,000 or (E) statements of work that have been satisfied in full;
(iii) a Contract with any Top Vendor (as defined below), including a purchase or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in full;
(iv) a Contract under which any Transferred Subsidiary has borrowed any money from, or issued any note, bond, debenture or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to or as of the Closing);
(v) a Contract concerning the establishment, control, maintenance or operation of a partnership, joint venture or other similar agreement or arrangement, in each case that is material to the Business;
(vi) all material Leases;
(vii) a Contract (A) pursuant to which a distributor (including any affiliate of Seller) has the right to distribute or resell products of the Business and (B) involving aggregate payments in excess of $100,000 in the twelve (12)-month period ended January 31, 2023;
(viiij) any Contract that is a mortgage, indenture, guaranty, financial, loan or credit agreement, security agreement or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted Liens;
(ix) any Contract that is a hedging, futures, options or other derivative Contract;
(x) any Contract for the acquisition of any Person or any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereof;
(xi) any royalty or similar Contract based on the revenues or profits of any Transferred Subsidiary;
(xii) any Contract of indemnification or guaranty to any Person not made in the ordinary course of business;
(xiii) any Contract with any Governmental Entity;
(xiv) any Contract relating to the acquisition or disposition of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);
(xv) any Contract under which the Transferred Subsidiaries consequences of a default or termination could have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;a Company Material Adverse Effect; or
(xvik) any Contract other agreement (A) containing covenants that restrict or limit in any material respect the ability group of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure related agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof;
(xxii) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with respect to actions in such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involves: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value which involves consideration in excess of $200,000 individually*** . The Company has delivered to Parent a correct and complete copy of each written agreement listed in SCHEDULE 3.19 and a written summary setting forth the material terms and conditions of each oral agreement referred to in SCHEDULE 3.19. With respect to each such agreement, or $1,000,000 and except as otherwise disclosed in the aggregate when taken together with all other Contracts involving SCHEDULE 3.19: (i) such Person or such Person’s affiliates; and
(xxvii) any material managementagreement is legal, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Laws.
(b) All Contracts set forth or required to be set forth in Section 3.12 of the Disclosure Schedule (including, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding binding, enforceable and in full force and effect, subject, as to enforcement, to the Enforceability Exceptions. The true, correct and complete copies of effect in all written Business Contracts material respects; (including all amendments, supplements, modifications, annexes or schedules theretoii) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and such agreement will continue to be subject to ongoing obligations legal, valid, binding, enforceable and in connection therewithfull force and effect in all material respects following the consummation of the transactions contemplated hereby; (iii) no party is in material breach or default under the Business Contractsdefault, and, to the Knowledge of Seller, and no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, that (occurred which with or without notice or lapse of time) will time would constitute a breach or would reasonably be expected to (i) result in a material violation default, or breach permit termination, modification of any of the provisions of any Business Contractmaterial term or condition or acceleration, under such agreement; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or and (iv) give no party has repudiated any Person the right to cancel, terminate or materially modify or declare void any Business Contractprovision of such agreement. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, to the Knowledge of Seller, other communication regarding any actual or possible violation or breach of, or material default under, any Business ContractTHIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights under any Business Contract.REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT REQUESTED
Appears in 1 contract
Sources: Merger Agreement (Daou Systems Inc)
Contracts. (a) Section 3.12(a) Schedule 5.10 sets forth a true and complete list of each contract to which the Disclosure Schedule sets forth, as Company or any of the date hereof, each Transferred Contract its Subsidiaries is a party or by which it is bound of the following types:types (collectively, the “Material Contracts”):
(i) a collective bargaining agreement or other Contract contracts containing covenants limiting the freedom of the HOB Entities after the date hereof to (A) engage in any line of business in any geographic area, (B) compete with any labor organizationPerson, trade unionor (C) sell any food or beverage, works council (D) grant any sponsorship or similar bargaining representative naming rights, (E) engage any competitor of any vendor or agent, (F) solicit any potential employee, or (G) use of any of their respective owned Proprietary Rights, in each case, the violation of which would materially impair the operation of the business of the HOB Entities taken as a “Collective Agreement”)whole;
(ii) a Contract with any Top Customer (as defined below)partnership, including purchase orders covering a payment amount of $2,000,000 limited liability company or more, other than (A) in the ordinary course of business, (B) non-disclosure joint venture agreements, (C) sales acknowledgments, (D) purchase orders covering a payment amount of under $2,000,000 or (E) statements of work that have been satisfied in full;
(iii) a Contract with management agreements or exclusive booking agreements that provide any Top Vendor (as defined belowHOB Entity the exclusive right to promote concerts at one or more venue(s), including a purchase or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in full;
(iv) a Contract under single event performance contracts which any Transferred Subsidiary has borrowed any money from, or issued any note, bond, debenture or other evidence provide for guaranteed payments by the HOB Entities after the date hereof in excess of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to or as of the Closing)$500,000;
(v) a Contract concerning contracts (other than any single or multi-event performance contract) which requires payments by any HOB Entity after the establishment, control, maintenance date hereof in excess of $500,000 during any one-year period and which is not terminable on notice of thirty (30) days or operation of a partnership, joint venture or other similar agreement or arrangement, in each case that is material to the Businessless without penalty;
(vi) all material Leasesmortgages, pledges, security agreements, deeds of trust or other instruments creating or purporting to create a Lien affecting any Leased Property, Owned Improvements or Owned Real Property;
(vii) a Contract contracts (Aother than this Agreement) pursuant to which a distributor (including any affiliate of Seller) has for the right to distribute or resell products of the Business and (B) involving aggregate payments in excess of $100,000 in the twelve (12)-month period ended January 31, 2023;
(viii) any Contract that is a mortgage, indenture, guaranty, financial, loan or credit agreement, security agreement or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties sale of any Transferred Subsidiary, material assets of any HOB Entity after the date hereof other than Permitted Liens;
(ix) any Contract that is a hedging, futures, options or other derivative Contract;
(x) any Contract for the acquisition of any Person or any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereof;
(xi) any royalty or similar Contract based on the revenues or profits of any Transferred Subsidiary;
(xii) any Contract of indemnification or guaranty to any Person not contracts made in the ordinary course of business;
(xiiiviii) contracts for any Contract with any Governmental Entity;
(xiv) any Contract relating HOB Entity to the acquisition or disposition of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);
(xv) any Contract under which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business provide to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof;
(xxii) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with respect to actions in such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involves: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individually500,000 during any one-year period where such services have not yet been performed, or $1,000,000 in the aggregate when taken together with all other Contracts involving such for any HOB Entity to receive services from any Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 500,000 during any one-year period where such services have not yet been paid for;
(ix) contracts under which any HOB Entity would be liable for an amount in excess of $500,000 during any one-year period;
(x) Leases or contracts involving the lease of personal property involving annual expenditures, individually, in excess of $100,000;
(xi) contracts relating to the incurrence of indebtedness or any sale and leaseback transactions or leasing transaction of the type required to be capitalized in accordance with GAAP;
(xii) contracts providing for the guarantee of indebtedness of any other Person above $1,000,000 200,000;
(xiii) collective bargaining agreement or similar contracts with any labor union or other employee organization;
(xiv) Employment Contracts which provide for annual salary in the aggregate when taken together excess of $75,000;
(xv) contracts that provide for exclusivity arrangements with all respect to any proposed transaction or contracts with any broker, finder, investment banker, financial advisor or other Contracts involving such Person or such Person’s affiliates; and
(xxviixvi) contracts pursuant to which the HOB Entities use Proprietary Rights owned by any third party that are material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without to the payment conduct of severance or other termination payments or benefits beyond that which is required by applicable Lawsthe HOB Entities’ business.
(b) All Contracts Except as set forth or on Schedule 5.10, each of the HOB Entities has performed in all material respects all of the obligations required to be performed by it under each Material Contract, and is not, and to the Knowledge of the Company no other party to a Material Contract is, in violation or default in any material respect of any Material Contract. Except as set forth in Section 3.12 on Schedule 5.10, each of the Disclosure Schedule (including, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding and is in full force and effect, subjectand is a legal, as to enforcementvalid and binding obligation of the Company or the applicable Subsidiary and, to the Enforceability ExceptionsKnowledge of the Company, of each other party thereto, enforceable against each such party in accordance with its terms, in each in all material respects. The trueExcept as set forth on Schedule 5.10, to the Company’s Knowledge, there exists no default or event of default or event, occurrence, condition or act, with respect to the applicable HOB Entity or, to the Knowledge of the Company, with respect to the other contracting party, which, with the giving of notice, the lapse of time or the happening of any other event or conditions, would become a default or event of default under any Material Contract or permit the termination, modification, cancellation or acceleration of the obligations of the Company or any of its Subsidiaries, as the case may be, or any other party to a Material Contract. Except as set forth on Schedule 5.10, the execution and performance of this Agreement and the consummation of the transactions contemplated hereby will not require the consent of any third party or result in any change, payment or loss of rights under any Material Contract that would be material to the HOB Entities taken as a whole. True, correct and complete copies of all written Business Material Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that is not in written formParent.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is orSchedule 5.10, since July 31the Balance Sheet Date, 2021, no third party to any Material Contract has been canceled or otherwise terminated any Material Contract or has provided written notice to any HOB Entity of its intent to do so and (and continue to be subject to ongoing obligations in connection therewithii) in material breach or default under the Business Contracts, and, to the Knowledge of Sellerthe Company, no other third party to any Business Material Contract is or, since July 31, 2021, has been (and unable to continue to be subject to ongoing perform its obligations in connection therewith) in material breach or default thereunder. No event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, that (with or without notice or lapse of time) will or would reasonably be expected to (i) result in a material violation or breach of any of the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, to the Knowledge of Seller, other communication regarding any actual or possible violation or breach of, or material default under, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights under any Business Contract.
Appears in 1 contract
Sources: Merger Agreement (Live Nation, Inc.)
Contracts. Section 3.18 of the SELLER Disclosure Schedule lists the following written arrangements (including without limitation written agreements) to which any of the TARGETS is a party:
(a) Section 3.12(aany written arrangement (or group of related written arrangements) for the lease of the Disclosure Schedule sets forth, as of the date hereof, each Transferred Contract of the following types:
(i) a collective bargaining agreement personal property from or other Contract with any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”);
(ii) a Contract with any Top Customer (as defined below), including purchase orders covering a payment amount of $2,000,000 or more, other than (A) in the ordinary course of business, (B) non-disclosure agreements, (C) sales acknowledgments, (D) purchase orders covering a payment amount of under $2,000,000 or (E) statements of work that have been satisfied in full;
(iii) a Contract with any Top Vendor (as defined below), including a purchase or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in full;
(iv) a Contract under which any Transferred Subsidiary has borrowed any money from, or issued any note, bond, debenture or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to or as of the Closing);
(v) a Contract concerning the establishment, control, maintenance or operation of a partnership, joint venture or other similar agreement or arrangement, in each case that is material to the Business;
(vi) all material Leases;
(vii) a Contract (A) pursuant to which a distributor (including any affiliate of Seller) has the right to distribute or resell products of the Business and (B) involving aggregate third parties providing for lease payments in excess of $100,000 in the twelve (12)-month period ended January 31, 202325,000 per annum;
(viiib) any Contract that is written arrangement (or group of related written arrangements) for the purchase or sale of raw materials, commodities, supplies, products or other personal property or for the furnishing or receipt of services (i) which calls for performance over a mortgageperiod of more than one year, indenture(ii) which involves more than the sum of $25,000, guaranty, financial, loan or credit agreement, security agreement or is a Contract to (iii) in which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted Liens;
(ix) any Contract that is a hedging, futures, options or other derivative Contract;
(x) any Contract for the acquisition of any Person or any business unit thereof or the disposition of any assets, other than TARGETS (A) Contracts for acquisitions or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereof;
(xi) any royalty or similar Contract based on the revenues or profits of any Transferred Subsidiary;
(xii) any Contract of indemnification or guaranty to any Person not made in the ordinary course of business;
(xiii) any Contract with any Governmental Entity;
(xiv) any Contract relating to the acquisition or disposition of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);
(xv) any Contract under which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is has granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials)manufacturing rights, (B) for non-specific Intellectual Property Rights has granted under a Transferred Subsidiary’s standard forms for employees and contractors"most favored nation" pricing provisions or exclusive marketing or distribution rights relating to any products or territory, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses has agreed to purchase a minimum quantity of third party Trademarks solely for the inclusion of such Trademarks in a customer list goods or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiaryservices, or (D) non-exclusive licenses has agreed to Trademarks purchase goods or services exclusively from a certain party;
(c) any written arrangement establishing a partnership or joint venture;
(d) any written arrangement (or group of related written arrangements) under which it has created, incurred, assumed, or guaranteed (or may create, incur, assume, or guarantee) indebtedness (including capitalized lease obligations) involving more than $25,000 or under which it has imposed (or may impose) a Security Interest on any of its assets, tangible or intangible;
(e) any written arrangement concerning confidentiality or noncompetition;
(f) any written arrangement involving SELLER or any of his Affiliates;
(g) any written arrangement under which the consequences of a default or termination, taken as a whole, could have a Material Adverse Effect on the assets, business, financial condition, results of operations or future prospects of any of the TARGETS; and
(h) any other written arrangement (or group of related written arrangements) currently in existence or which any provisions thereof are currently binding on any of the TARGETS either (x) involving more than $25,000 or (y) not entered into in the ordinary course Ordinary Course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which Business. SELLER has material ongoing obligations following the date hereof;
(xxii) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser HSOA a correct and complete copy of each written arrangement (Bas amended to date) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change listed in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result Section 3.18 of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with SELLER Disclosure Schedule. With respect to actions in such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involveseach written arrangement so listed: (Ai) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individuallywritten arrangement is legal, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Laws.
(b) All Contracts set forth or required to be set forth in Section 3.12 of the Disclosure Schedule (including, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding and enforceable and in full force and effect; (ii) the written arrangement will continue to be legal, subjectvalid, binding and enforceable and in full force and effect on and immediately following the Closing Date in accordance with the terms thereof as to enforcement, in effect prior to the Enforceability Exceptions. The trueClosing Date, correct and complete copies of all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions obtaining any consents required by such arrangement that are listed on Section 3.6 of the SELLER Disclosure Schedule; and (iii) TARGETS are not in breach or default, and to the extent required Knowledge of SELLER, the other party to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that such agreements is not in breach or default, and no event has occurred which with notice or lapse of time would constitute a breach or default or permit termination, modification, or acceleration, under the written form.
(c) arrangement. Except as set forth disclosed in Section 3.12(c) 3.18 of the SELLER Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates TARGETS is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default under the Business Contracts, and, to the Knowledge of Seller, no other a party to any Business Contract is ororal contract, since July 31agreement or other arrangement that, 2021if reduced to written form, has been (and continue would be required to be subject to ongoing obligations listed in connection therewith) in material breach or default thereunder. No event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, that (with or without notice or lapse of time) will or would reasonably be expected to (i) result in a material violation or breach of any Section 3.18 of the provisions SELLER Disclosure Schedule under the terms of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, to the Knowledge of Seller, other communication regarding any actual or possible violation or breach of, or material default under, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights under any Business Contractthis Section 3.18.
Appears in 1 contract
Sources: Plan of Merger and Stock Purchase Agreement (Home Solutions of America Inc)
Contracts. (a) Section 3.12(a) 2.13 of the Disclosure Schedule sets forth, lists the following agreements (written or oral) to which the Company or any Company Subsidiary is a party as of the date hereof, each Transferred Contract of the following typesthis Agreement:
(i) any agreement (or group of related agreements) for the lease of personal property from or to third parties providing for lease payments in excess of $25,000 per annum or having a collective bargaining agreement or other Contract with any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”)remaining term longer than 12 months;
(ii) a Contract with any Top Customer agreement (as defined below), including or group of related agreements) for the purchase orders covering a payment amount or sale of $2,000,000 products or more, other than for the furnishing or receipt of services (A) in the ordinary course which calls for performance over a period of businessmore than one year, (B) non-disclosure agreementswhich involves more than the sum of $25,000, or (C) sales acknowledgmentsin which the Company or any Company Subsidiary has granted manufacturing rights, (D) “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to any products or territory or has agreed to purchase orders covering a payment amount minimum quantity of under $2,000,000 goods or (E) statements of work that have been satisfied in fullservices or has agreed to purchase goods or services exclusively from a certain party;
(iii) any agreement which, to the knowledge of the Company, establishes a Contract with any Top Vendor (as defined below), including a purchase partnership or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in fulljoint venture;
(iv) a Contract any agreement (or group of related agreements) under which it has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) involving more than $25,000 or under which it has imposed (or may impose) a Security Interest on any Transferred Subsidiary has borrowed any money fromof its assets, tangible or issued any note, bond, debenture or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to or as of the Closing)intangible;
(v) a Contract any agreement concerning the establishment, control, maintenance confidentiality or operation of a partnership, joint venture or other similar agreement or arrangement, in each case that is material to the Businessnoncompetition;
(vi) all material Leasesany employment or consulting agreement;
(vii) a Contract (A) pursuant to which a distributor (including any agreement involving any officer, director or stockholder of the Company or any affiliate of Seller(as defined in Rule 12b-2 under the Exchange Act) has the right to distribute or resell products of the Business and thereof (B) involving aggregate payments in excess of $100,000 in the twelve (12)-month period ended January 31, 2023an “Affiliate”);
(viii) any Contract that is agreement under which the consequences of a mortgage, indenture, guaranty, financial, loan default or credit agreement, security agreement or is termination would reasonably be expected to have a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted LiensCompany Material Adverse Effect;
(ix) any Contract that is a hedgingagreement which contains any provisions requiring the Company or any Company Subsidiary to indemnify any other party thereto (excluding indemnities contained in agreements for the purchase, futures, options sale or other derivative Contractlicense of products entered into in the Ordinary Course of Business);
(x) any Contract for the acquisition other agreement (or group of any Person related agreements) either involving more than $25,000 or any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory not entered into in the ordinary course Ordinary Course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereof;Business; and
(xi) any royalty or similar Contract based on the revenues or profits of any Transferred Subsidiary;
(xii) any Contract of indemnification or guaranty to any Person not made in the ordinary course of business;
(xiii) any Contract with any Governmental Entity;
(xiv) any Contract relating to the acquisition or disposition of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);
(xv) any Contract under which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Propertyagreement, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof;
(xxii) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) , relating to the sales of securities of the Company or any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by Company Subsidiary to which the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with respect to actions in such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involves: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person Company or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having Company Subsidiary is a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Lawsparty.
(b) All Contracts set forth The Company has delivered or required made available to be the Parent a complete and accurate copy of each agreement listed in Section 2.13 of the Disclosure Schedule. With respect to each agreement so listed, and except as set forth in Section 3.12 2.13 of the Disclosure Schedule Schedule: (includingi) the agreement is legal, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding and enforceable and in full force and effect; (ii) the agreement will continue to be legal, subjectvalid, 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 enforcementthe Closing; and (iii) neither the Company nor any Company Subsidiary nor, to the Enforceability Exceptions. The true, correct and complete copies of all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) knowledge of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that Company, any other party, is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default under the Business Contractsviolation of, and, to the Knowledge of Seller, no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No under, any such agreement, and no event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, that (with or without notice or lapse of time) will or would reasonably be expected to (i) result in a material violation or breach of any of the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice is pending or, to the Knowledge knowledge of Sellerthe Company, is threatened, which, after the giving of notice, with lapse of time, or otherwise, would constitute a breach or default by the Company or any Company Subsidiary or, to the knowledge of the Company, any other communication regarding party under such contract, except for any actual or possible breach, violation or breach of, or material default under, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates that has waived any of their material rights under any Business Contractnot had and would not reasonably be anticipated to have a Company Material Adverse Effect.
Appears in 1 contract
Contracts. (a) Section 3.12(a) 2.13 of the Disclosure Schedule sets forth, lists the following agreements (written or oral) to which the Company or any Company Subsidiary is a party as of the date hereof, each Transferred Contract of the following typesthis Agreement:
(i) any agreement (or group of related agreements) for the lease of personal property from or to third parties providing for lease payments in excess of $25,000 per annum or having a collective bargaining agreement or other Contract with any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”)remaining term longer than 12 months;
(ii) a Contract with any Top Customer agreement (as defined below), including or group of related agreements) for the purchase orders covering a payment amount or sale of $2,000,000 products or more, other than for the furnishing or receipt of services (A) in the ordinary course which calls for performance over a period of businessmore than one year, (B) non-disclosure agreementswhich involves more than the sum of $25,000, or (C) sales acknowledgmentsin which the Company or any Company Subsidiary has granted manufacturing rights, (D) "most favored nation" pricing provisions or exclusive marketing or distribution rights relating to any products or territory or has agreed to purchase orders covering a payment amount minimum quantity of under $2,000,000 goods or (E) statements of work that have been satisfied in fullservices or has agreed to purchase goods or services exclusively from a certain party;
(iii) any agreement establishing a Contract with any Top Vendor (as defined below), including a purchase partnership or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in fulljoint venture;
(iv) a Contract any agreement (or group of related agreements) under which it has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) involving more than $25,000 or under which it has imposed (or may impose) a Security Interest on any Transferred Subsidiary has borrowed any money fromof its assets, tangible or issued any note, bond, debenture or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to or as of the Closing)intangible;
(v) a Contract any agreement concerning the establishment, control, maintenance confidentiality or operation of a partnership, joint venture or other similar agreement or arrangement, in each case that is material to the Businessnoncompetition;
(vi) all material Leasesany employment or consulting agreement;
(vii) a Contract (A) pursuant to which a distributor (including any affiliate of Seller) has the right to distribute agreement involving any officer, director or resell products stockholder of the Business and Company or any affiliate, as defined in Rule 12b-2 under the Exchange Act (B) involving aggregate payments in excess of $100,000 in the twelve (12)-month period ended January 31an "Affiliate"), 2023thereof;
(viii) any Contract that is agreement under which the consequences of a mortgage, indenture, guaranty, financial, loan default or credit agreement, security agreement or is termination would reasonably be expected to have a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted LiensCompany Material Adverse Effect;
(ix) any Contract that is a hedgingagreement which contains any provisions requiring the Company or any Company Subsidiary to indemnify any other party thereto (excluding indemnities contained in agreements for the purchase, futures, options sale or other derivative Contract;license of products entered into in the Ordinary Course of Business); and
(x) any Contract for the acquisition other agreement (or group of any Person or any business unit thereof or the disposition of any assets, other than (Arelated agreements) Contracts for acquisitions or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated either involving more than three (3) years prior to the date hereof;
(xi) any royalty $25,000 or similar Contract based on the revenues or profits of any Transferred Subsidiary;
(xii) any Contract of indemnification or guaranty to any Person not made in the ordinary course of business;
(xiii) any Contract with any Governmental Entity;
(xiv) any Contract relating to the acquisition or disposition of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);
(xv) any Contract under which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course Ordinary Course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof;
(xxii) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with respect to actions in such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involves: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable LawsBusiness.
(b) All Contracts set forth The Company has delivered or required made available to be set forth the Parent a complete and accurate copy of each agreement listed in Section 3.12 2.13 of the Disclosure Schedule Schedule. With respect to each agreement so listed: (includingi) the agreement is legal, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding and enforceable and in full force and effect; (ii) the agreement will continue to be legal, subjectvalid, 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 enforcementthe Closing; and (iii) neither the Company nor any Company Subsidiary nor, to the Enforceability Exceptions. The true, correct and complete copies of all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) knowledge of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that Company, any other party, is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default under the Business Contractsviolation of, and, to the Knowledge of Seller, no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No under, any such agreement, and no event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, that (with or without notice or lapse of time) will or would reasonably be expected to (i) result in a material violation or breach of any of the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice is pending or, to the Knowledge knowledge of Sellerthe Company, other communication regarding any actual or possible violation or breach ofis threatened, which, after the giving of notice, with lapse of time, or material otherwise, would constitute a breach or default underby the Company or any Company Subsidiary or, to the knowledge of the Company, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights other party under any Business Contractsuch contract.
Appears in 1 contract
Contracts. (a) Section 3.12(a3(o) of the Disclosure Schedule sets forth, as of the date hereof, each Transferred Contract of lists the following typescontracts and other agreements to which the Seller is a party:
(i) a collective bargaining any agreement (or other Contract with any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”);
(iigroup of related agreements) a Contract with any Top Customer (as defined below), including purchase orders covering a payment amount for the lease of $2,000,000 or more, other than (A) in the ordinary course of business, (B) non-disclosure agreements, (C) sales acknowledgments, (D) purchase orders covering a payment amount of under $2,000,000 or (E) statements of work that have been satisfied in full;
(iii) a Contract with any Top Vendor (as defined below), including a purchase or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in full;
(iv) a Contract under which any Transferred Subsidiary has borrowed any money from, or issued any note, bond, debenture or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior personal property to or as of the Closing);
(v) a Contract concerning the establishment, control, maintenance or operation of a partnership, joint venture or other similar agreement or arrangement, in each case that is material to the Business;
(vi) all material Leases;
(vii) a Contract (A) pursuant to which a distributor (including from any affiliate of Seller) has the right to distribute or resell products of the Business and (B) involving aggregate Person providing for lease payments in excess of $100,000 per annum;
(ii) any agreement for the purchase or sale of raw materials, commodities, supplies, products, or other personal property, or for the furnishing or receipt of services;
(iii) any agreement concerning a partnership or joint venture;
(iv) any agreement (or group of related agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, in excess of $100,000 or under which it has imposed a Security Interest on any of its assets, tangible or intangible;
(v) any agreement concerning confidentiality or noncompetition;
(vi) any agreement involving the twelve Seller and/or its Affiliates;
(12)-month period ended January 31vii) any profit sharing, 2023stock option, stock purchase, stock appreciation, deferred compensation, severance, or other plan or arrangement for the benefit of its current or former directors, officers, and employees;
(viii) any Contract that is a mortgage, indenture, guaranty, financial, loan or credit collective bargaining agreement, security agreement or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted Liens;
(ix) any Contract that is agreement for the employment of any individual on a hedgingfull-time, futurespart-time, options consulting, or other derivative Contractbasis providing annual compensation in excess of $100,000 or providing severance benefits;
(x) any Contract for agreement under which it has advanced or loaned any amount to any of its directors, officers, and employees outside the acquisition Ordinary Course of any Person or any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereofBusiness;
(xi) any royalty agreement under which the consequences of a default or similar Contract based termination could have an adverse effect on the revenues business, financial condition, operations, results of operations, or profits future prospects of any Transferred Subsidiary;the Seller; or
(xii) any Contract other agreement (or group of indemnification or guaranty to any Person not made in related agreements) the ordinary course performance of business;
(xiii) any Contract with any Governmental Entity;
(xiv) any Contract relating to the acquisition or disposition of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);
(xv) any Contract under which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary involves consideration in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which 100,000. The Seller has material ongoing obligations following the date hereof;
(xxii) any Contract relating delivered to the settlement Purchaser a correct and complete copy of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiiieach written agreement listed in Section 3(o) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available Disclosure Schedule (as amended to Purchaser date) and (Ba written summary setting forth the material terms and conditions of each oral agreement referred to in Section 3(o) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with Disclosure Schedule. With respect to actions in each such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involvesagreement: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individuallyagreement is legal, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Laws.
(b) All Contracts set forth or required to be set forth in Section 3.12 of the Disclosure Schedule (including, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding binding, enforceable, and in full force and effect, subject, as to enforcement, to effect in all material respects; (B) the Enforceability Exceptions. The true, correct and complete copies of all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and agreement will continue to be subject to ongoing obligations legal, valid, binding, enforceable, and in connection therewithfull force and effect on identical terms following the Closing; (C) no party is in material breach or default under the Business Contractsdefault, and, to the Knowledge of Seller, and no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, occurred that (with or without notice or lapse of timetime would constitute a breach or default, or permit termination, modification, or acceleration, under the agreement; and (D) will or would reasonably be expected to (i) result in a material violation or breach of no party has repudiated any provision of the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, to the Knowledge of Seller, other communication regarding any actual or possible violation or breach of, or material default under, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights under any Business Contractagreement.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Emerge Interactive Inc)
Contracts. (a) Section 3.12(aAttached as Schedule 5.8(a) is a list of all real -------- ------ property leases in effect on the Disclosure date of this Agreement pursuant to which any RECI Company leases real property (the "Real Property Leases"); ---- -------- ------
(b) Attached as Schedule sets forth, 5.8(b) is a list of all personal -------- ------ property leases to which any RECI Company is a party as of the date hereof, each Transferred Contract of the following types:
(i) a collective bargaining agreement or other Contract with any labor organization, trade union, works council or similar bargaining representative (a “Collective this Agreement”);
(ii) a Contract with any Top Customer (as defined below), including purchase orders covering a payment amount of $2,000,000 or more, other than (A) in the ordinary course of business, (B) non-disclosure agreements, (C) sales acknowledgments, (D) purchase orders covering a payment amount of under $2,000,000 or (E) statements of work any such lease that have been satisfied in full;
(iii) a Contract with any Top Vendor (as defined below), including a purchase or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in full;
(iv) a Contract under which any Transferred Subsidiary has borrowed any money from, or issued any note, bond, debenture or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to or as of the Closing);
(v) a Contract concerning the establishment, control, maintenance or operation of a partnership, joint venture or other similar agreement or arrangement, in each case that is material to the Business;
(vi) all material Leases;
(vii) a Contract (A) pursuant to which a distributor (including any affiliate of Seller) has the right to distribute or resell products of the Business and (B) involving aggregate payments in excess of $100,000 in the twelve (12)-month period ended January 31, 2023;
(viii) any Contract that is a mortgage, indenture, guaranty, financial, loan or credit agreement, security agreement or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted Liens;
(ix) any Contract that is a hedging, futures, options or other derivative Contract;
(x) any Contract for the acquisition of any Person or any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereof;
(xi) any royalty or similar Contract based on the revenues or profits of any Transferred Subsidiary;
(xii) any Contract of indemnification or guaranty to any Person not made in the ordinary course of business;
(xiii) any Contract with any Governmental Entity;
(xiv) any Contract relating to the acquisition or disposition of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);
(xv) any Contract under which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks was entered into in the ordinary course of business prior to the date of this Agreement and does not require payments of more than $50,000 per annum and any project-specific personal property leases included in the contracts referred to in paragraph (c) below;
(c) Attached as Schedule 5.8(c) is a list of all the -------- ------ contracts, bids, subcontracts and other agreements outstanding as of the date of this Agreement for inclusion the provision or prospective provision by any RECI Company of engineering, design, procurement, construction, operation, maintenance or other services (collectively, the "E&C Services"), other than: --- --------
(i) contracts, subcontracts and other agreements for the provision or prospective provision by any RECI Company of any E&C Services entered into in the ordinary course conduct of the Purchased Business that do not involve the payment to or by any RECI Company of more than $500,000 and do not provide for compensation on a fixed fee or lump sum basis;
(ii) in addition to the bids listed in Schedule -------- 5.8(c), any bids for the provision or prospective provision by any RECI ------ Company of any E&C Services outstanding on the date of this Agreement and made in the ordinary course conduct of the Purchased Business that do not (including the contract contemplated by such bid) involve the payment to or by any RECI Company of more than $500,000 or provide for compensation on a fixed fee or lump sum basis; and
(iii) in connection with the contracts, bids, subcontracts and agreements listed in Schedule 5.8(c) or described in -------- ------ any of (i) or (ii) above, all related purchase orders, completed and uncompleted job orders, change orders, extra work orders, amendments, modifications, subcontracts and similar agreements, and any ancillary contracts entered into in connection with such contracts, subcontracts and agreements, such as project-specific hedging or currency swap agreements and any services agreements (other than any agency or representative agreement).
(d) Except as set forth on Schedule 5.8(d) or listed on -------- ------ Schedule 5.8(c), as of the date of this Agreement none of the RECI Companies is -------- ------ a party to any joint venture or consortium agreements other than any such agreements that are no longer binding on any RECI Company.
(e) Except as listed on Schedule 5.8(e) (the "Listed -------- ------ ------ Confidentiality Agreements"), as of the date of this Agreement none of the RECI --------------- ---------- Companies are party to any confidentiality or secrecy agreements other than any confidentiality or secrecy agreements entered into in the ordinary course operation of the Purchased Business or that are no more restrictive than any of the agreements listed on Schedule 5.8(e) and other than any such agreements that -------- ------ are no longer binding on any RECI Company.
(f) Except for (A) the contracts, agreements and other arrangements referred to in Sections 5.8(a)-(e), (B) the ERISA Plans and Non-ERISA Plans (as defined in Section 5.20), (C) the Support Agreements (as defined in Section 8.8), (D) the agreements listed in Schedule 5.12(b), (E) the contracts, agreements and -------- ------- other arrangements listed or described on Schedule 5.8(f), (E) the Retained RECI -------- ------ Contracts and Retained Risk E&C Contracts, (F) the contracts and other arrangements listed in Schedule 7.12, (G) any guarantee by a RECI Company of the -------- ---- obligations of another RECI Company of any of the contracts, agreements or other arrangements referred to in the foregoing clauses (A) through (F), and (H) any contracts, agreements or other arrangements that have been fully performed and with respect to which no RECI Company has any further obligations or liabilities, as of the date of this Agreement no RECI Company is a party to or otherwise bound by any:
(i) mortgage, indenture, note, installment obligation or other instrument relating to the borrowing of money;
(ii) guarantee of any obligation or any letter of credit or bond (excluding endorsements of instruments for collection in the ordinary course of the operation of their business);
(iii) offset, countertrade, distributor, sales representative or sales agency (including any foreign agents or representatives) agreement;
(iv) agreement for the sale or lease of any of its assets requiring the payment of more than $250,000;
(v) agreement requiring the payment by such RECI Company of more than $250,000 for the purchase or lease of any real estate, machinery, equipment or other capital assets;
(vi) contract, agreement, legal commitment or proposal for the sale of products or the performance of services which would involve payment to such RECI Company of more than $1,000,000;
(vii) personal property lease with an annual rent of $50,000 or more and an original term of more than one year;
(viii) real property lease or sublease (as lessee, lessor, sublessee or sublessor);
(ix) contract or agreement requiring such RECI Company to purchase all or substantially all of its requirements for a particular product from a supplier;
(x) except for the standard form of employee confi- dentiality agreement that the RECI Companies attempt to enter into with respect to all of their employees (the current form of which is included as part of Schedule 5.8(f)), (A) employment agreement, (B) -------- ------ consulting agreement, (C) agreement providing for severance payments or (D) agreement providing for any rights or benefits (whether or not optional or subject to other conditions) in the event of the sale or other change in control of such Trademark RECI Company or sale of all or substantially all of its assets;
(xi) contract or other agreement with any current or former officer, director, employee or consultant of such RECI Company or any other member of the Raytheon Group (other than as set forth in Schedule 5.20 or Schedule 5.21) or any present or former shareholder of -------- ---- -------- ---- such RECI Company (other than another RECI Company or a customer list member of the Raytheon Group) or with any partnership, corporation, joint venture or any other entity in which any such Person has a material interest;
(xii) joint venture or similar immaterial marketing purposesagreement;
(xiii) agreement imposing non-competition or exclusive dealing obligations on such RECI Company;
(xiv) any tax-sharing or other contract or agreement between any RECI Company and any other member of the Raytheon Group (other than another RECI Company);
(xv) contract or agreement that is material to the Purchased Business as a whole and that was not entered into in the ordinary course operation of the business of such RECI Company;
(xvi) take-or-pay agreement;
(xvii) contract, agreement or arrangement granting to any Person any preferential rights to purchase any assets or services from such RECI Company;
(xviii) contract or agreement pursuant to which such RECI Company provides or has provided consulting or remediation services with respect to the Year 2000 problem;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;project specific hedging or currency swap agreement; or
(xx) contract, agreement or arrangement obligating such RECI Company to make any Contract between equity investment in any member of the Seller Group Person, to make payments to develop any project or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof;
(xxii) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vestingprovide, or other material compensation amount or benefits thatarrange for the provision of, in each case, will be payable or due as a result of the consummation of financing for any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with respect to actions in such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involves: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Lawsproject.
(bg) All Contracts set forth The Sellers have delivered, made available or required offered to be set forth in Section 3.12 of the Disclosure Schedule (including, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding and in full force and effect, subject, as to enforcement, make available to the Enforceability Exceptions. The true, Buyer correct and complete copies (or in the case of any oral contracts, agreements or arrangements, summaries that are accurate in all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(bmaterial respects) of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that is not contract, agreement or other arrangement, as amended to date, listed in written form.
Schedules 5.8 (c) Except as set forth in Section 3.12(c) of the Disclosure Schedulea), none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default under the Business Contracts, and, to the Knowledge of Seller, no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, that (with or without notice or lapse of time) will or would reasonably be expected to (i) result in a material violation or breach of any of the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, to the Knowledge of Seller, other communication regarding any actual or possible violation or breach of, or material default under, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights under any Business Contract.--------- -------
Appears in 1 contract
Contracts. Section 5.17 of the Inbox Disclosure Schedule lists the following contracts, agreements, commitments and other arrangements to which Inbox is a party or by which Inbox or any of its assets is bound:
(a) Section 3.12(aany agreement (or group of related agreements) for the lease of personal property to or from any Person or license of any software or Intellectual Property which involves the Disclosure Schedule sets forthpayment by or to Inbox of more than $25,000 per year;
(b) any agreement (or group of related agreements) for the purchase or sale of raw materials, as commodities, supplies, products, or other personal property, or for the furnishing or receipt of services, the date hereofperformance of which will extend over a period of more than one year or involve consideration in excess of $25,000;
(c) any agreement for the purchase of supplies, each Transferred Contract components, products or services from single source suppliers, custom manufacturers or subcontractors which involves the payment by Inbox of more than $25,000 per year;
(d) any agreement concerning a partnership or joint venture;
(e) any agreement (or group of related agreements) under which Inbox has created, incurred, assumed, or guaranteed any indebtedness for borrowed money or any capitalized lease obligation in excess of $25,000 or under which a Security Interest has been imposed on any of its assets, tangible or intangible;
(f) any agreement concerning noncompetition or restraint of trade or any agreement on currently active projects which involves confidentiality;
(g) any agreement with any Inbox shareholder or any of such shareholder's Affiliates (other than Inbox) or with any Affiliate of Inbox;
(h) any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or other plan or arrangement for the following types:benefit of its current or former directors, officers or employees;
(i) a any collective bargaining agreement or other Contract with any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”)agreement;
(iij) any agreement for the employment of any individual on a Contract with any Top Customer (as defined below)full-time, including purchase orders covering a payment amount of $2,000,000 part-time, consulting, or more, other than (A) in the ordinary course of business, (B) non-disclosure agreements, (C) sales acknowledgments, (D) purchase orders covering a payment amount of under $2,000,000 or (E) statements of work that have been satisfied in fullbasis;
(iiik) a Contract with any Top Vendor (as defined below)agreement under which it has advanced or loaned any amount to any of its directors, including a purchase or service order covering a payment amount of $1,000,000 or moreofficers, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in fulland employees;
(ivl) a Contract under any agreement pursuant to which Inbox is obligated to provide services, maintenance, support or training which involves payments to Inbox of more than $50,000 per year;
(m) any Transferred Subsidiary has borrowed any money fromstandard form agreement used by Inbox, or issued any noteincluding, bond, debenture or other evidence of indebtedness of borrowed money but not limited to, any personpurchase order, including any guarantee relating thereto (other than any Contract that will be terminated prior to statement of standard terms and conditions of sale, or as of the Closing);employment offer letter; and
(vn) a Contract concerning any other agreement (or group of related agreements) the establishment, control, maintenance or operation performance of a partnership, joint venture or other similar agreement or arrangement, in each case that is material to the Business;
(vi) all material Leases;
(vii) a Contract (A) pursuant to which a distributor (including any affiliate of Seller) has the right to distribute or resell products of the Business and (B) involving aggregate payments involves consideration in excess of $100,000 25,000 or which is expected to continue for more than twelve (12) months from the date hereof (or, in the twelve (12)-month period ended January 31case of maintenance contracts, 2023;
(viii) any Contract that is a mortgage, indenture, guaranty, financial, loan or credit agreement, security agreement or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted Liens;
(ix) any Contract that is a hedging, futures, options or other derivative Contract;
(x) any Contract for the acquisition of any Person or any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereof;
(xi) any royalty or similar Contract based on the revenues or profits of any Transferred Subsidiary;
(xii) any Contract of indemnification or guaranty to any Person not made in the ordinary course of business;
(xiii) any Contract with any Governmental Entity;
(xiv) any Contract relating to the acquisition or disposition of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);
(xv) any Contract under which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course of business consistent with past practices, 50,000) and which has material ongoing obligations following is expected to continue for more than twelve (12) months from the date hereof;
(xxii) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that . Inbox has been made available to Purchaser Aspec a correct and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice complete copy of termination that extends beyond what is required pursuant to applicable Laws, change each written agreement listed in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result Section 5.17 of the consummation Inbox Disclosure Schedule (as amended to date) and a written summary setting forth the terms and conditions of any each oral agreement referred to in Section 5.17 of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with Inbox Disclosure Schedule. With respect to actions in each such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involvesagreement: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individuallyagreement is legal, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Laws.
(b) All Contracts set forth or required to be set forth in Section 3.12 of the Disclosure Schedule (including, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding binding, enforceable, and in full force and effect, subject, as to enforcement, to effect in all respects against Inbox and the Enforceability Exceptions. The true, correct and complete copies of all written Business Contracts other parties thereto; (including all amendments, supplements, modifications, annexes or schedules theretoB) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that Inbox is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default under the Business Contracts, and, to the Knowledge knowledge of SellerInbox, no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No default, and no event has occurred, which with notice or lapse of time would constitute a breach or default, or permit termination, modification, or acceleration, under the agreement; (C) Inbox has not and, to the Knowledge knowledge of SellerInbox, no circumstance or condition exists, other party has repudiated any provision of the agreement; and (D) Inbox does not have any reason to believe that (the service called for thereunder cannot be supplied in accordance with or its terms and without notice or lapse of time) will or would reasonably be expected to (i) result resulting in a material violation or breach of loss to any of the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, to the Knowledge of Seller, other communication regarding any actual or possible violation or breach of, or material default under, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights under any Business ContractInbox.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Aspec Technology Inc)
Contracts. (a) Section 3.12(a) 2.14 of the Disclosure Schedule sets forth, lists the following agreements (written or oral) to which the Seller or any Subsidiary is a party as of the date hereof, each Transferred Contract of the following typesthis Agreement:
(i) any agreement (or group of related agreements) for the lease of personal property from or to third parties providing for lease payments in excess of $1,000 per annum or having a collective bargaining agreement or other Contract with any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”)remaining term longer than 12 months;
(ii) a Contract with any Top Customer agreement (as defined below), including or group of related agreements) for the purchase orders covering a payment amount or sale of $2,000,000 products or more, other than for the furnishing or receipt of services (A) in the ordinary course which calls for performance over a period of businessmore than one year, (B) non-disclosure agreementswhich involves more than the sum of $10,000, or (C) sales acknowledgmentsin which the Seller or any Subsidiary has granted manufacturing rights, (D) “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to any products or territory or has agreed to purchase orders covering a payment amount minimum quantity of under $2,000,000 goods or (E) statements of work that have been satisfied in fullservices or has agreed to purchase goods or services exclusively from a certain party;
(iii) a Contract with any Top Vendor (as defined below), including a purchase or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in full;
(iv) a Contract under which any Transferred Subsidiary has borrowed any money from, or issued any note, bond, debenture or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to or as of the Closing);
(v) a Contract agreement concerning the establishment, control, maintenance establishment or operation of a partnership, joint venture or limited liability company;
(iv) any agreement (or group of related agreements) under which it has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) involving more than $10,000 or under which it has imposed (or may impose) a Security Interest on any of its assets, tangible or intangible;
(v) any agreement for the disposition of any significant portion of the assets or business of the Seller or any Subsidiary (other similar than sales of products in the Ordinary Course of Business) or any agreement for the acquisition of the assets or arrangement, business of any other entity (other than purchases of inventory or components in each case that is material to the Ordinary Course of Business);
(vi) all material Leasesany agreement concerning confidentiality or noncompetition;
(vii) a Contract (A) pursuant to which a distributor (including any affiliate of Seller) has the right to distribute employment or resell products of the Business and (B) involving aggregate payments in excess of $100,000 in the twelve (12)-month period ended January 31, 2023consulting agreement;
(viii) any Contract that is a mortgageagreement involving any current or former officer, indenture, guaranty, financial, loan director or credit agreement, security agreement member of the Seller or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted Liensan Affiliate thereof;
(ix) any Contract that is agreement under which the consequences of a hedging, futures, options default or other derivative Contracttermination would reasonably be expected to have a Seller Material Adverse Effect;
(x) any Contract agreement which contains any provisions requiring the Seller or any Subsidiary to indemnify any other party (excluding indemnities contained in agreements for the acquisition purchase, sale or license of any Person or any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory products entered into in the ordinary course Ordinary Course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereof;Business); and
(xi) any royalty other agreement (or similar Contract based on the revenues group of related agreements) either involving more than $10,000 or profits of any Transferred Subsidiary;
(xii) any Contract of indemnification or guaranty to any Person not made in the ordinary course of business;
(xiii) any Contract with any Governmental Entity;
(xiv) any Contract relating to the acquisition or disposition of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);
(xv) any Contract under which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course Ordinary Course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof;
(xxii) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with respect to actions in such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involves: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable LawsBusiness.
(b) All Contracts set forth or required The Seller has delivered to be set forth the Buyer a complete and accurate copy of each agreement listed in Section 3.12 2.12 or Section 2.14 of the Disclosure Schedule (includingSchedule, for the avoidance of doubt, any Contract that would have been required to be identified except as otherwise indicated in such Section 3.12 2.14 of the Disclosure Schedule had Section 3.12 of Schedule. With respect to each agreement so listed: (i) the Disclosure Schedule been made at the Closing)agreement is legal, all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding and enforceable and in full force and effect; (ii) for those agreements to which the Seller is a party, subject, as to enforcement, the agreement is assignable by the Seller to the Enforceability Exceptions. The true, correct and complete copies Buyer without the consent or approval of all written Business Contracts any party (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that is not in written form.
(c) Except except as set forth in Section 3.12(c) 2.3 and 2.14 of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been () and will continue to be subject 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 ongoing obligations in connection therewiththe Closing; and (iii) in material breach or default under neither the Business Contracts, andSeller nor any Subsidiary nor, to the Knowledge knowledge of the Seller, no any other party to any Business Contract party, is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or violation of, or default thereunder. No under, any such agreement, and no event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, that (with or without notice or lapse of time) will or would reasonably be expected to (i) result in a material violation or breach of any of the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice is pending or, to the Knowledge knowledge of the Seller, other communication regarding any actual or possible violation or breach ofis threatened, which, after the giving of notice, with lapse of time, or material otherwise, would constitute a breach or default underby the Seller or any Subsidiary or, to the knowledge of the Seller, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights other party under any Business Contractsuch agreement.
Appears in 1 contract
Sources: Membership Interests Purchase Agreement (Nayna Networks, Inc.)
Contracts. (a) Section 3.12(ass.3(l) of the Disclosure Schedule sets forthlists all material contracts, as of the date hereof, each Transferred Contract of including the following typescontracts and other agreements to which the Seller is a party:
(i) a collective bargaining any agreement (or other Contract with group of related agreements) for the lease of personal property to or from any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”)Person providing for lease payments in excess of $3,000.00 per annum;
(ii) any agreement (or group of related agreements) for the purchase or sale of machinery, equipment or supplies, products, or other personal property, or for the furnishing or receipt of services, the performance of which will extend over a Contract with any Top Customer (as defined below)period of more than one year, including purchase orders covering result in a payment amount material loss to the Seller, or involve consideration in excess of $2,000,000 or more, other than (A) in the ordinary course of business, (B) non-disclosure agreements, (C) sales acknowledgments, (D) purchase orders covering a payment amount of under $2,000,000 or (E) statements of work that have been satisfied in full5,000.00;
(iii) any agreement concerning a Contract with any Top Vendor (as defined below), including a purchase partnership or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in fulljoint venture;
(iv) a Contract any agreement (or group of related agreements) under which any Transferred Subsidiary it has borrowed any money fromcreated, incurred, assumed, or issued guaranteed any noteindebtedness for borrowed money, bondor any capitalized lease obligation, debenture in excess of $5,000.00 or other evidence under which it has imposed a Security Interest on any of indebtedness of borrowed money toits assets, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to tangible or as of the Closing)intangible;
(v) a Contract any agreement concerning the establishment, control, maintenance confidentiality or operation of a partnership, joint venture or other similar agreement or arrangement, in each case that is material to the Businessnoncompetition;
(vi) all material Leasesany agreement involving the Stockholder and any of his Affiliates;
(vii) any agreement for the employment of any individual on a Contract (A) pursuant to which a distributor (including any affiliate of Seller) has the right to distribute full-time, part-time, consulting, or resell products of the Business and (B) involving aggregate payments other basis providing annual compensation in excess of $100,000 in the twelve (12)-month period ended January 31, 20235,000.00 or providing severance benefits;
(viii) any Contract that is a mortgageagreement under which it has advanced or loaned any amount to any of the directors, indentureofficers, guaranty, financial, loan or credit agreement, security agreement or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties and employees of any Transferred Subsidiary, other than Permitted Liensthe Seller outside the Ordinary Course of Business;
(ix) any Contract that is agreement under which the consequences of a hedgingdefault or termination could have a material adverse effect on the business, futuresfinancial condition, options operations, results of operations, or other derivative Contract;future prospects of the Seller; or
(x) any Contract for other agreement (or group of related agreements) the acquisition performance of any Person or any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereof;
(xi) any royalty or similar Contract based on the revenues or profits of any Transferred Subsidiary;
(xii) any Contract of indemnification or guaranty to any Person not made in the ordinary course of business;
(xiii) any Contract with any Governmental Entity;
(xiv) any Contract relating to the acquisition or disposition of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);
(xv) any Contract under which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary involves consideration in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which 5,000.00. The Seller has material ongoing obligations following the date hereof;
(xxii) any Contract relating delivered to the settlement Buyer a correct and complete copy of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiiieach written agreement listed in ss.3(l) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available Disclosure Schedule (as amended to Purchaser date) and (Ba written summary setting forth the terms and conditions of each oral agreement referred to in ss.3(l) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with Disclosure Schedule. With respect to actions in each such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involvesagreement: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individuallyagreement is legal, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Laws.
(b) All Contracts set forth or required to be set forth in Section 3.12 of the Disclosure Schedule (including, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding binding, enforceable, and in full force and effect, subject, as to enforcement, to ; (B) the Enforceability Exceptions. The true, correct and complete copies of all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and agreement will continue to be subject legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated hereby (including the assignments and assumptions referred to ongoing obligations in connection therewithss.2 above); (C) no party is in material breach or default under the Business Contractsdefault, and, to the Knowledge of Seller, and no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, that (occurred which with or without notice or lapse of timetime would constitute a breach or default, or permit termination, modification, or acceleration, under the agreement; and (D) will or would reasonably be expected to (i) result in a material violation or breach of no party has repudiated any provision of the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, to the Knowledge of Seller, other communication regarding any actual or possible violation or breach of, or material default under, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights under any Business Contractagreement.
Appears in 1 contract
Contracts. (a) Section 3.12(a) of the The MSI Disclosure Schedule Letter sets forth, as of the date hereof, each Transferred Contract forth an accurate and complete list of the following typeswritten arrangements (including without limitation written agreements) to which MSI Solutions or MSI Services is a party:
1. any written arrangement (ior group of related written arrangements) a collective bargaining agreement for the lease of personal property from or other Contract with any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”);
(ii) a Contract with any Top Customer (as defined below), including purchase orders covering a payment amount of $2,000,000 or more, other than (A) in the ordinary course of business, (B) non-disclosure agreements, (C) sales acknowledgments, (D) purchase orders covering a payment amount of under $2,000,000 or (E) statements of work that have been satisfied in full;
(iii) a Contract with any Top Vendor (as defined below), including a purchase or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in full;
(iv) a Contract under which any Transferred Subsidiary has borrowed any money from, or issued any note, bond, debenture or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to or as of the Closing);
(v) a Contract concerning the establishment, control, maintenance or operation of a partnership, joint venture or other similar agreement or arrangement, in each case that is material to the Business;
(vi) all material Leases;
(vii) a Contract (A) pursuant to which a distributor (including any affiliate of Seller) has the right to distribute or resell products of the Business and (B) involving aggregate third parties providing for lease payments in excess of $100,000 in the twelve (12)-month period ended January 31, 202350,000 per annum;
2. any written arrangement (viiior group of related written arrangements) for the provision of products or services to customers of MSI Services or MSI Solutions since 1991;
3. any Contract that is written arrangement (or group of related written arrangements) in which MSI Solutions or MSI Services has granted manufacturing rights, most favored nation pricing provisions or exclusive marketing or distribution rights relating to any products or territory or has agreed to purchase a mortgageminimum quantity of goods or services or has agreed to purchase goods or services exclusively from a certain party;
4. any written arrangement establishing a partnership or joint venture;
5. any written arrangement (or group of related written arrangements) under which it has created, indentureincurred, guarantyassumed, financialor guaranteed (or may create, loan incur, assume, or credit agreement, security agreement guarantee) indebtedness (including capitalized lease obligations) involving more than $50,000 or is under which it has imposed (or may impose) a Contract to which any Transferred Subsidiary is a party creating or granting any Lien Security Interest on any assets of its assets, tangible or properties of any Transferred Subsidiary, other than Permitted Liensintangible;
(ix) 6. any Contract that is a hedging, futures, options written arrangement concerning confidentiality or other derivative Contractnoncompetition;
(x) 7. any Contract for the acquisition of written arrangement involving any Person or any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereof;
(xi) any royalty or similar Contract based on the revenues or profits of any Transferred Subsidiary;
(xii) any Contract of indemnification or guaranty to any Person not made in the ordinary course of business;
(xiii) any Contract with any Governmental Entity;
(xiv) any Contract relating to the acquisition or disposition of any business or material portion of the assets MSI Shareholders or their "affiliates", as that term is defined in Rule 12b-2 under the Securities Exchange Act of any Person 1934, as amended (whether by merger, sale of stock, sale of assets or otherwisethe "Exchange Act")(the "MSI Affiliates");
(xv) 8. any Contract written arrangement under which the Transferred Subsidiaries consequences of a default or termination could have an obligation with respect to an “earn out,” contingent purchase price, MSI Material Adverse Effect; and
9. any other written arrangement (or similar contingent payment obligation;
group of related written arrangements) (xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (Bi) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other more than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, $50,000 annually and (Dii) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks not entered into in the ordinary course Ordinary Course of Business. With the exception of those written arrangements listed in the MSI Disclosure Letter pursuant to Section 16.14.6, MSI has delivered or made available to Eclipsys a correct and complete copy of each written arrangement (as amended to date) listed in the MSI Disclosure Letter pursuant to this Section 16.14. With respect to each such written arrangement so listed:
1. the written arrangement is legal, valid, binding and enforceable against MSI Solutions or MSI Services, as the case may be, to the extent material to the business for inclusion and operations of such Trademark in MSI Solutions and MSI Services taken as a customer list or similar immaterial marketing purposeswhole;
(xix) a Contract that is required 2. the written arrangement will continue to be filed by Seller Guarantor legal, valid, binding and enforceable against MSI Solutions and MSI Services, as the case may be, following the Closing in accordance with the terms in effect prior to the Closing, but only to the extent material to the business and operations of MSI Solutions and MSI Services taken as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations whole following the date hereof;
(xxii) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available 3. neither MSI Solutions nor MSI Services is, and to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with respect to actions in such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involves: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Laws.
(b) All Contracts set forth or required to be set forth in Section 3.12 of the Disclosure Schedule (including, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding and in full force and effect, subject, as to enforcement, to the Enforceability Exceptions. The true, correct and complete copies of all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default under the Business Contracts, and, to the Knowledge of SellerMSI's knowledge, no other party to any Business Contract is oris, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No default, and no event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, that (occurred which with or without notice or lapse of time) will time would constitute a breach or default or permit termination, modification, or acceleration, under any such written agreement, other than such breaches, defaults, terminations, modifications or accelerations as would reasonably not have an MSI Material Adverse Effect; and
4. neither MSI Solutions nor MSI Services is a party to any oral contract, agreement or other arrangement which, if reduced to written form, would be expected required to (i) result be listed in a material violation or breach of any of the MSI Disclosure Letter pursuant to the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, to the Knowledge of Seller, other communication regarding any actual or possible violation or breach of, or material default under, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights under any Business Contractthis Section 16.14.
Appears in 1 contract
Sources: Merger Agreement (Eclipsys Corp)
Contracts. (a) Section 3.12(a) 2.13 of the Disclosure Schedule sets forth, lists the following agreements (written or oral) to which Raditaz or any Raditaz Subsidiary is a party as of the date hereof, each Transferred Contract of the following typesthis Agreement:
(i) any agreement (or group of related agreements) for the lease of personal property from or to third parties providing for lease payments in excess of $25,000 per annum or having a collective bargaining agreement or other Contract with any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”)remaining term longer than 12 months;
(ii) a Contract with any Top Customer agreement (as defined below), including or group of related agreements) for the purchase orders covering a payment amount or sale of $2,000,000 products or more, other than for the furnishing or receipt of services (A) in the ordinary course which calls for performance over a period of businessmore than one year, (B) non-disclosure agreementswhich involves more than the sum of $25,000, or (C) sales acknowledgmentsin which Raditaz has granted manufacturing rights, (D) “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to any products or territory or has agreed to purchase orders covering a payment amount minimum quantity of under $2,000,000 goods or (E) statements of work that have been satisfied in fullservices or has agreed to purchase goods or services exclusively from a certain party;
(iii) any agreement which, to the knowledge of Raditaz or any Majority Holder, establishes a Contract with any Top Vendor (as defined below), including a purchase partnership or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in fulljoint venture;
(iv) a Contract any agreement (or group of related agreements) under which it has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) involving more than $25,000 or under which it has imposed (or may impose) a Security Interest on any Transferred Subsidiary has borrowed any money fromof its assets, tangible or issued any note, bond, debenture or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to or as of the Closing)intangible;
(v) a Contract concerning the establishment, control, maintenance any agreement which imposes any current obligation on Raditaz or operation of a partnership, joint venture any Raditaz Subsidiary with respect to confidentiality or other similar agreement or arrangement, in each case that is material to the Businessnoncompetition;
(vi) all material Leasesany employment or consulting agreement;
(vii) a Contract any agreement involving any officer, director or Member of Raditaz, any Raditaz Subsidiary or any affiliate, as defined in Rule 12b-2 under Exchange Act, thereof (A) pursuant to which a distributor (including any affiliate of Seller) has the right to distribute or resell products of the Business and (B) involving aggregate payments in excess of $100,000 in the twelve (12)-month period ended January 31, 2023an “Affiliate”);
(viii) any Contract that is agreement under which the consequences of a mortgage, indenture, guaranty, financial, loan default or credit agreement, security agreement or is termination would reasonably be expected to have a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted LiensRaditaz Material Adverse Effect;
(ix) any Contract that is a hedgingagreement which contains any provisions requiring Raditaz or any Raditaz Subsidiary to indemnify any other party thereto (excluding indemnities contained in agreements for the purchase, futures, options sale or other derivative Contractlicense of products entered into in the Ordinary Course of Business);
(x) any Contract for the acquisition other agreement (or group of any Person related agreements) either involving more than $25,000 or any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory not entered into in the ordinary course Ordinary Course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereof;Business; and
(xi) any royalty or similar Contract based on the revenues or profits of any Transferred Subsidiary;
(xii) any Contract of indemnification or guaranty to any Person not made in the ordinary course of business;
(xiii) any Contract with any Governmental Entity;
(xiv) any Contract agreement, other than as contemplated by this Agreement relating to the acquisition sales of securities of Raditaz or disposition of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);
(xv) any Contract under which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Raditaz Subsidiary to engage in the Business which Raditaz or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Raditaz Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof;
(xxii) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with respect to actions in such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involves: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Lawsparty.
(b) All Contracts set forth Raditaz has delivered or required made available to be Pubco a complete and accurate copy of each agreement listed in Section 2.13 of the Disclosure Schedule. With respect to each agreement so listed, and except as set forth in Section 3.12 2.13 of the Disclosure Schedule Schedule: (includingi) the agreement is legal, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding and enforceable and in full force and effect; (ii) the agreement will continue to be legal, subjectvalid, 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 enforcementthe Closing; and (iii) neither Raditaz nor any Raditaz Subsidiary is, nor, to the Enforceability Exceptions. The trueknowledge of Raditaz and the Majority Holder, correct and complete copies of all written Business Contracts (including all amendmentsis any other party, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default under the Business Contractsviolation of, and, to the Knowledge of Seller, no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No under, any such agreement, and no event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, that (with or without notice or lapse of time) will or would reasonably be expected to (i) result in a material violation or breach of any of the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice is pending or, to the Knowledge knowledge of SellerRaditaz and the Majority Holder, other communication regarding any actual or possible violation or breach ofis threatened, which, after the giving of notice, with lapse of time, or material otherwise, would constitute a breach or default underby Raditaz or any Raditaz Subsidiary or, to the knowledge of Raditaz and the Majority Holder, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights other party under any Business Contractsuch contract.
Appears in 1 contract
Contracts. SECTION 4.14 OF THE DISCLOSURE SCHEDULE lists the following Contracts to which the Company is a party:
(a) Section 3.12(aany Contract for the lease of personal property to or from any Person;
(b) of the Disclosure Schedule sets forth, as of the date hereof, each Transferred any Contract of the following types:
for (i) a collective bargaining agreement the purchase or sale of supplies, products or other personal property, the performance of which will extend over a period of more than one year or involve consideration in excess of $10,000 or (ii) for the furnishing or receipt of services, the performance of which will extend over a period of more than one year or involve consideration in excess of $50,000;
(c) any Contract under which the Company has created, incurred, assumed or guaranteed any indebtedness for borrowed money or any capitalized lease obligation, in excess of $15,000 or under which it has imposed a Lien on any of its assets, tangible or intangible;
(d) any Contract concerning noncompetition;
(e) any Contract with the Seller or any labor organization, trade union, works council or similar bargaining representative Affiliate of the Seller (a “Collective Agreement”other than the Company);
(iif) a any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance or other material Contract, plan or arrangement for the benefit of its current or former directors, officers or employees;
(g) any Contract with any Top Customer concerning collective bargaining;
(as defined below), including purchase orders covering a payment amount of $2,000,000 or more, other than (Ah) in except for standard employee confidentiality agreements entered into the ordinary course of business, (B) non-disclosure agreements, (C) sales acknowledgments, (D) purchase orders covering a payment amount of under $2,000,000 or (E) statements of work that have been satisfied in full;
(iii) a Contract with any Top Vendor (as defined below), including a purchase or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in full;
(iv) a Contract under which any Transferred Subsidiary has borrowed any money from, or issued any note, bond, debenture or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to or as of the Closing);
(v) a Contract concerning the establishment, control, maintenance or operation of a partnership, joint venture or other similar agreement or arrangement, in each case that is material to the Business;
(vi) all material Leases;
(vii) a Contract (A) pursuant to which a distributor (including any affiliate of Seller) has the right to distribute or resell products of the Business and (B) involving aggregate payments in excess of $100,000 in the twelve (12)-month period ended January 31, 2023;
(viii) any Contract that is a mortgage, indenture, guaranty, financial, loan or credit agreement, security agreement or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted Liens;
(ix) any Contract that is a hedging, futures, options or other derivative Contract;
(x) any Contract for the acquisition employment of any Person individual on a full-time, part-time, consulting or any business unit thereof other basis or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereofproviding severance benefits;
(xii) any royalty Contract under which the Company has advanced or similar Contract based on the revenues loaned any amount to any of its directors, officers or profits of any Transferred Subsidiaryemployees;
(xii) any Contract of indemnification or guaranty to any Person not made in the ordinary course of business;
(xiiij) any Contract with any Governmental Entity;or Regulatory Authority other than Contracts transferred as part of the Government Business Divestiture; and
(xivk) any other Contract relating to the acquisition or disposition of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);
(xv) any Contract under which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which practice. The Seller has material ongoing obligations following caused the date hereof;
(xxii) any Contract relating Company to make available to the settlement Buyer a correct and complete copy of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any each written Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with respect to actions in such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involves: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Laws.
(b) All Contracts set forth or required to be set listed on SECTION 4.14 OF THE DISCLOSURE SCHEDULE and a written summary setting forth in Section 3.12 the material terms and conditions of the Disclosure Schedule (includingeach oral Contract, for the avoidance of doubtif any, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or listed on SECTION 4.14 OF THE DISCLOSURE SCHEDULE. With respect to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise each Contract required to be set forth in Section 3.12 of listed on SECTION 4.14 OF THE DISCLOSURE SCHEDULE: (x) the Disclosure Schedule Contract is valid and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contractsbinding, the “Business Contracts”) are valid, binding and in full force and effect, subject, as to enforcementeffect and enforceable against the Company and, to the Enforceability Exceptions. The trueKnowledge of the Seller, correct and complete copies of all written Business Contracts (including all amendmentseach other party thereto in accordance with its terms, supplementsexcept as limited by bankruptcy, modificationsinsolvency, annexes reorganization, moratorium or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security similar Laws relating to creditors' rights generally, (y) the safeguarding of Personal Data). Section 3.12(b) of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that Company is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default under the Business Contractsnot, and, to the Knowledge of the Seller, no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No under, the Contract, and no event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, that (occurred which with or without notice or lapse of timetime would constitute a breach or default or permit termination, modification or acceleration under the Contract, except for such breaches or events which would not have a Material Adverse Effect and (z) will or would reasonably be expected to (i) result in a material violation or breach of no party has repudiated any provision of the provisions of any Business Contract; (ii) give any Person the right to declare Contract except for such repudiation which would not have a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, to the Knowledge of Seller, other communication regarding any actual or possible violation or breach of, or material default under, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights under any Business ContractMaterial Adverse Effect.
Appears in 1 contract
Contracts. (a) Section 3.12(aSchedule 4.9(a) sets forth an accurate and complete list of the Disclosure Schedule sets forth, as each Contract (including a description of the date hereof, each Transferred Contract any oral Contract) that is described in any of the following types:subsections and either binds or affects any of the Purchased Assets or that Seller is a party to or is bound in connection with the Business or the Purchased Assets (collectively, the “Material Contracts”):
(i) a collective bargaining agreement or other Contract with any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”);
(ii) a Contract with any Top Customer (as defined below), including purchase orders covering a payment amount of $2,000,000 or more, other than (A) in the ordinary course of business, (B) non-disclosure agreements, (C) sales acknowledgments, (D) purchase orders covering a payment amount of under $2,000,000 or (E) statements of work that have been satisfied in full;
(iii) a Contract with any Top Vendor (as defined below), including a purchase or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in full;
(iv) a Contract under which any Transferred Subsidiary has borrowed any money from, or issued any note, bond, debenture or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to or as of the Closing);
(v) a Contract concerning the establishment, control, maintenance or operation of a partnership, joint venture or other similar agreement or arrangement, in each case that is material to the Business;
(vi) all material Leases;
(vii) a Contract (A) pursuant to which a distributor (including any affiliate of Seller) has the right to distribute or resell products of the Business and (B) Contracts involving aggregate payments consideration in excess of $100,000 in the twelve (12)-month period ended January 31, 2023;
(viii) 500,000 or requiring performance by any Contract that is a mortgage, indenture, guaranty, financial, loan or credit agreement, security agreement or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted Liens;
(ix) any Contract that is a hedging, futures, options or other derivative Contract;
(x) any Contract for the acquisition of any Person or any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to one year from the date hereof;
(xiii) any royalty or similar Contract based on the revenues or profits of any Transferred Subsidiaryall Commodity Contracts;
(xiiiii) any Contract all Contracts that (i) cannot be cancelled without penalty or without more than sixty (60) days’ notice and (ii) involve aggregate consideration in excess of indemnification or guaranty to any Person not made in the ordinary course of business$250,000;
(xiiiiv) any Contract with any Governmental Entity;
(xiv) any Contract relating all Contracts that relate to the acquisition or disposition of any business business, a material amount of stock or material portion of the assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise);
(xvv) any Contract under which all Contracts that contain non-competition or non-solicitation provisions restricting the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase priceconduct of the Business, or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect restricting the ability conduct of any Transferred Subsidiary to engage in Person potentially competing with the Business or compete with respect to the Business with any Person or Business, in any geographic area or the ability during any period of any affiliate of any Transferred Subsidiary time;
(other than the Transferred Subsidiaries themselvesvi) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) all Contracts granting any exclusive rights, rights of first refusal, rights of first negotiation, options or similar rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xviivii) except for agreements relating to trade receivables and any Contract that contains a licenseagreement relating to Liabilities for borrowed money or in respect of loans or advances or Liabilities evidenced by bonds, sublicense debentures, notes or other provision under which similar instruments or debt securities, all Contracts relating to Indebtedness (including guarantees) of the Seller or exclusively related to the Business, the Facility or the Purchased Assets, or imposing an Encumbrance on any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual PropertyPurchased Asset, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposesPermitted Encumbrances;
(xviiiviii) any Contract that contains a license, sublicense all Contracts between or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary)among Seller, on the one hand, and any Transferred SubsidiariesSeller Affiliate, on the other hand, in each case that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary in excess of $1,500,000 in the aggregate, whether will not be terminated at or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof;
(xxii) any Contract relating prior to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiiiix) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract all collective bargaining agreements or Contracts with any Employee that provides for retention labor organization, union or stay bonus, severance association;
(x) all employment agreements and Contracts with independent contractors or advance notice of termination that extends beyond what is required consultants (or similar arrangements);
(xi) all Contracts pursuant to applicable Laws, change in control bonus which material payments are required upon a sale of substantially all the assets that constitute the Business;
(xii) all Contracts that provide for severance pay or accelerated vestingany other material post-employment payment by, or other material compensation amount financial obligation of, Seller;
(xiii) all joint venture, partnership or benefits that, in each case, will be payable or due as a result similar Contracts that provide for the sharing of profits relating to the consummation Business (excluding the organizational documents of Seller);
(xiv) all Contracts for the sale of any of the transactions contemplated by this AgreementPurchased Assets or for the grant to any Person of any option, right of first refusal or preferential or similar right to purchase any of the Purchased Assets;
(xxivxv) any Contract all Contracts that provides that fees or expenses provide for the indemnification of any outside accountantsPerson or the assumption of any Tax, external legal counsel environmental or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred SubsidiaryLiability of any Person;
(xxvxvi) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary all Third Party Leases and Tenant Leases;
(with respect to actions in such capacityxvii) all Assumed Leases described on Schedule 2.1(b);
(xxvixviii) any Contract entered into since January 31, 2023 all Easements described on Schedule 2.1(c);
(other than Employee Benefit Plansxix) that contemplates or involves: (A) the payment or delivery all Intellectual Property Contracts of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliatesSeller; and
(xxviixx) any all other Contracts material management, consulting, contractor, relocation, repatriation to the Purchased Assets or expatriation agreement or other Contract between the operation of the Business and not previously listed in a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Lawscategory set forth in Sections 4.9(a)(i)-(xvi) above.
(b) All Contracts set forth or required to be set forth Each Material Contract is valid and binding on Seller in Section 3.12 of the Disclosure Schedule (including, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 accordance with its terms and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding and is in full force and effect, subject, as to enforcementeffect and enforceable in accordance with its terms against Seller and, to the Enforceability Exceptions. The true, correct and complete copies Knowledge of all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) Seller as of the Disclosure Schedule provides an accurate and complete description date of this Agreement, the material terms of each Business Contract that is not in written form.
other parties thereto, except (ci) Except as set forth in Section 3.12(con Schedule 4.9(b) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been or (ii) as may be limited by applicable bankruptcy or other Laws affecting creditors’ rights generally and continue to except as enforceability may be subject to ongoing general principles of equity. Seller has properly conducted and paid all amounts owed by Seller, as applicable, and otherwise performed all material obligations in connection therewith) in material required to be performed by Seller, under each Material Contract and Seller has not received any notice of termination, cancellation, breach or default under any Material Contract in any material respect. No event has occurred that, with the Business Contractspassage of time or the giving of notice or both, andwould result in a default, breach or event of noncompliance by Seller under any Material Contract, or result in the termination thereof, or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder, except as set forth on Schedule 4.9(b) and except for defaults, breaches or events of noncompliance that have not been and would not reasonably be expected to be material to the Facility or the Purchased Assets. To the Knowledge of Seller, no other party to any Business Material Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach thereof or default thereunder in any material respect or has acted in any manner that could result in the termination of such Material Contract or that could cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. No event has occurred, andexcept as set forth on Schedule 4.9(b) and except for defaults or breaches that have not been, to the Knowledge of Seller, no circumstance or condition exists, that (with or without notice or lapse of time) will or and would not reasonably be expected to (i) result in a be, material violation or breach of any of the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, to the Knowledge Facility or the Purchased Assets. A true, correct and complete copy of Seller, other communication regarding any actual or possible violation or breach of, or material default under, any Business Contract. No member each written Material Contract and an accurate written description setting forth the terms and conditions of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates each oral Material Contract has waived any of their material rights under any Business Contractbeen delivered to Buyer.
Appears in 1 contract
Contracts. (a) Section 3.12(a) 2.14 of the Disclosure Schedule sets forth, lists the following agreements (written or oral) to which the Seller is a party as of the date hereof, each Transferred Contract of this Agreement (other than this Agreement and the following types:Ancillary Agreements):
(i) any agreement (or group of related agreements) for the lease of personal property from or to third parties providing for lease payments in excess of $5,000 per annum or having a collective bargaining agreement or other Contract with any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”)remaining term longer than three months;
(ii) a Contract with any Top Customer agreement (as defined below), including or group of related agreements) for the purchase orders covering a payment amount or sale of $2,000,000 products or more, other than for the furnishing or receipt of services (A) in the ordinary course which calls for performance over a period of businessmore than one year, (B) non-disclosure agreementswhich involves more than the sum of $5,000, or (C) sales acknowledgmentsin which the Seller has granted manufacturing rights, (D) "most favored nation" pricing provisions or marketing or distribution rights relating to any products or territory or has agreed to purchase orders covering a payment amount minimum quantity of under $2,000,000 goods or (E) statements of work that have been satisfied in fullservices or has agreed to purchase goods or services exclusively from a certain party;
(iii) a Contract with any Top Vendor (as defined below), including a purchase or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in full;
(iv) a Contract under which any Transferred Subsidiary has borrowed any money from, or issued any note, bond, debenture or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to or as of the Closing);
(v) a Contract agreement concerning the establishment, control, maintenance establishment or operation of a partnership, joint venture or limited liability company;
(iv) any agreement (or group of related agreements) under which it has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) involving more than $5,000 or under which it has imposed (or may impose) a Security Interest on any of its assets, tangible or intangible;
(v) any agreement for the disposition of any significant portion of the assets or business of the Seller (other similar than sales of products in the Ordinary Course of Business) or any agreement for the acquisition of the assets or arrangement, business of any other entity (other than purchases of inventory or components in each case that is material to the Ordinary Course of Business);
(vi) all material Leasesany agreement concerning exclusivity or confidentiality;
(vii) a Contract (A) pursuant to which a distributor (including any affiliate of Seller) has the right to distribute employment or resell products of the Business and (B) involving aggregate payments in excess of $100,000 in the twelve (12)-month period ended January 31, 2023consulting agreement;
(viii) any Contract that is a mortgageagreement involving any current or former officer, indenture, guaranty, financial, loan manager or credit agreement, security agreement Shareholder or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted Liensan Affiliate thereof;
(ix) any Contract that is agreement under which the consequences of a hedging, futures, options default or other derivative Contracttermination would reasonably be expected to have a Seller Material Adverse Effect;
(x) any Contract agreement which contains any provisions requiring the Seller to indemnify any other party (excluding indemnities contained in agreements for the acquisition purchase, sale or license of any Person or any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory products entered into in the ordinary course Ordinary Course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereofBusiness);
(xi) any royalty agreement that could reasonably be expected to have the effect of prohibiting or similar Contract based on impairing the revenues conduct of the business of the Seller or profits of the Buyer or any Transferred Subsidiaryof its subsidiaries as currently conducted and as currently proposed to be conducted;
(xii) any Contract agreement under which the Seller is restricted from selling, licensing or otherwise distributing any of indemnification its technology or guaranty to products, or providing services to, customers or potential customers or any Person not made class of customers, in any geographic area, during any period of time or any segment of the ordinary course market or line of business;
(xiii) any Contract with agreement which would entitle any Governmental Entity;third party to receive a license or any other right to intellectual property of the Buyer or any of the Buyer's Affiliates following the Closing; and
(xiv) any Contract relating to the acquisition other agreement (or disposition group of any business related agreements) either involving more than $10,000 or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);
(xv) any Contract under which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks not entered into in the ordinary course Ordinary Course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof;
(xxii) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with respect to actions in such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involves: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable LawsBusiness.
(b) All Contracts set forth or required The Seller has delivered to be set forth the Buyer a complete and accurate copy of each agreement listed in Section 3.12 2.13 or Section 2.14 of the Disclosure Schedule (including, for the avoidance of doubt, any Contract that would have been required Schedule. With respect to be identified each agreement so listed and except as disclosed in Section 3.12 2.14 of the Disclosure Schedule had Section 3.12 of Schedules: (i) the Disclosure Schedule been made at the Closing)agreement is legal, all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding and enforceable and in full force and effect; (ii) for those agreements to which the Seller is a party, subjectthe agreement is assignable by the Seller to the Buyer without the consent or approval of any party and 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 enforcementthe Closing; and (iii) neither the Seller nor, to the Enforceability Exceptions. The true, correct and complete copies of all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) knowledge of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that Seller, any other party, is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default under the Business Contractsviolation of, and, to the Knowledge of Seller, no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No under, any such agreement, and no event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, that (with or without notice or lapse of time) will or would reasonably be expected to (i) result in a material violation or breach of any of the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice is pending or, to the Knowledge knowledge of the Seller, other communication regarding any actual or possible violation or breach ofis threatened, which, after the giving of notice, with lapse of time, or material otherwise, would constitute a breach or default underby the Seller or, to the knowledge of the Seller, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights other party under any Business Contractsuch agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Suncrest Global Energy Corp)
Contracts. (a) Section 3.12(a) 3.18 of the Disclosure Schedule sets forth, as of the date hereof, each Transferred Contract of lists the following typescontracts and other agreements to which AzERx is a party:
(ia) a collective bargaining any agreement (or other Contract with any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”);
(iigroup of related agreements) a Contract with any Top Customer (as defined below), including purchase orders covering a payment amount for the lease of $2,000,000 or more, other than (A) in the ordinary course of business, (B) non-disclosure agreements, (C) sales acknowledgments, (D) purchase orders covering a payment amount of under $2,000,000 or (E) statements of work that have been satisfied in full;
(iii) a Contract with any Top Vendor (as defined below), including a purchase or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in full;
(iv) a Contract under which any Transferred Subsidiary has borrowed any money from, or issued any note, bond, debenture or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior personal property to or as of the Closing);
(v) a Contract concerning the establishment, control, maintenance or operation of a partnership, joint venture or other similar agreement or arrangement, in each case that is material to the Business;
(vi) all material Leases;
(vii) a Contract (A) pursuant to which a distributor (including from any affiliate of Seller) has the right to distribute or resell products of the Business and (B) involving aggregate Person providing for lease payments in excess of $100,000 in the twelve (12)-month period ended January 31, 20235,000 per annum;
(viiib) any Contract that is agreement (or group of related agreements) for the purchase or sale of raw materials, commodities, supplies, products or other personal property, or for the furnishing or receipt of services, the performance of which will extend over a mortgageperiod of more than one year, indentureresult in a material loss to AzERx, guaranty, financial, loan or credit agreement, security agreement or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties involve consideration in excess of any Transferred Subsidiary, other than Permitted Liens$5,000;
(ixc) any Contract that is a hedging, futures, options or other derivative Contract;
(x) any Contract for the acquisition of any Person or any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereof;
(xi) any royalty or similar Contract based on the revenues or profits of any Transferred Subsidiary;
(xii) any Contract of indemnification or guaranty to any Person not made in the ordinary course of business;
(xiii) any Contract with any Governmental Entity;
(xiv) any Contract relating to the acquisition or disposition of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);
(xv) any Contract under which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which similar agreement entered into by AzERx or otherwise used in connection with any Transferred Subsidiary is granted or assigned rights by others in Business of AzERx’s Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviiid) any Contract that contains agreement concerning a license, sublicense partnership or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposesjoint venture;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xxe) any Contract between agreement (or group of related agreements) under which AzERx has created, incurred, assumed or guaranteed any member of the Seller Group indebtedness for borrowed money, or any of its affiliates (other than a Transferred Subsidiary)capitalized lease obligation, on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary in excess of $1,500,000 in the aggregate5,000 or under which it has imposed a Security Interest on any of its assets, whether tangible or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereofintangible;
(xxiif) any Contract agreement concerning noncompetition and any agreement which will, or by its terms purports to, subject OrthoLogic to any non-disclosure or confidentiality obligations upon the consummation of the transactions contemplated in this Agreement;
(g) any agreement with or involving any of AzERx’s stockholders and their Affiliates (other than AzERx);
(h) any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance or other plan or arrangement for the benefit of AzERx’s current or former directors, officers or employees;
(i) any collective bargaining agreement;
(j) any agreement for the employment of any individual on a full-time, part-time, consulting, or other basis providing annual compensation or providing severance benefits;
(k) any agreement under which AzERx has advanced or loaned any amount to any of its directors, officers, or employees;
(l) any agreements covering “work made for hire” as defined under the United States copyright laws, Title 17 of the United States Code, or any agreements with independent contractors;
(m) any agreement under which the consequences of a default or termination could have a material adverse effect on the Business, financial condition, operations, results of operations or future prospects of AzERx;
(n) any agreement for the cleanup, abatement or other actions in connection with any Environmental, Health and Safety Requirements, the remediation of any existing environmental condition or relating to the settlement performance of any Proceeding pursuant to which any Transferred Subsidiary environmental audit or the Business will have any material outstanding obligations after the Closing;study; and
(xxiii) (Ao) any Contract with an Employee that provides for other agreement (or group of related agreements) the performance of which involves total annual base compensation consideration in excess of $80,000 that materially deviates from the standard form 5,000.
(p) AzERx has delivered to OrthoLogic a correct and complete copy of employment each written agreement listed in Section 3.18 of the Transferred Subsidiaries that has been made available Disclosure Schedule (as amended to Purchaser date) and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice a written summary setting forth the terms and conditions of termination that extends beyond what is required pursuant each oral agreement referred to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result Section 3.18 of the Disclosure Schedule. With respect to each such agreement that is an Assumed Contract: (i) the agreement is legal, valid, binding, enforceable and in full force and effect; (ii) the agreement will continue to be legal, valid, binding, enforceable and in full force and effect on identical terms following the consummation of any of the transactions contemplated by this Agreement;
; (xxiviii) any Contract that provides that fees or expenses of any outside accountantsAzERx is not, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with respect to actions in such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involves: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such PersonAzERx’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Laws.
(b) All Contracts set forth or required to be set forth in Section 3.12 of the Disclosure Schedule (including, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding and in full force and effect, subject, as to enforcement, to the Enforceability Exceptions. The true, correct and complete copies of all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default under the Business Contracts, and, to the Knowledge of SellerKnowledge, no other party to any Business Contract is oris, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No default, and no event has occurredoccurred which, and, to the Knowledge of Seller, no circumstance or condition exists, that (with or without notice or lapse of time) will time or both, would reasonably be expected constitute a breach or default by AzERx, or, to (i) result in a material violation AzERx’s Knowledge, by such other party, or breach of permit termination, modification or acceleration by AzERx, or to AzERx’s Knowledge, any of other party, under the provisions of any Business Contractagreement; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or and (iv) give no party has repudiated any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member provision of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, to the Knowledge of Seller, other communication regarding any actual or possible violation or breach of, or material default under, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights under any Business Contractagreement.
Appears in 1 contract
Contracts. (a) Section 3.12(a2.12(a) of the RTMMC Disclosure Schedule sets forth, as of Letter lists the following Contracts to which RTMMC is a party and which are outstanding (which Section may be updated by RTMMC and the Members prior to the Closing Date to reflect any additions or deletions thereto after the date hereofhereof in compliance with Section 5.01) (collectively, each Transferred Contract of the following types:"RTMMC MATERIAL CONTRACTS"):
(i) a collective bargaining agreement or other any Contract with expressly requiring capital expenditures involving consideration in excess of $50,000 in any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”)twelve month period;
(ii) a any Contract with which restricts or limits, in any Top Customer material respect, the ability of RTMMC to freely engage in any aspect of the quick service restaurant business whether as franchisor or owner/operator, or to employ any individuals (as defined below), including purchase orders covering a payment amount of $2,000,000 or more, other than (A) any confidentiality agreement entered into in the ordinary course of business, (B) non-disclosure agreements, (C) sales acknowledgments, (D) purchase orders covering connection with a payment amount of under $2,000,000 potential acquisition containing any such restriction or (E) statements of work that have been satisfied in fulllimitation to employ any individuals);
(iii) a Contract with any Top Vendor (as defined below), including a purchase or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in fullcollective bargaining agreement;
(iv) a Contract under which any Transferred Subsidiary has borrowed any money from, or issued any note, bond, debenture or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior which involved payments from RTMMC of more than $250,000 to any Person supplying food or as paper products or distribution services to any of the Closing)RTM Parties or any of their Subsidiaries during the twelve-month period ended May 30, 2004;
(v) a any Contract concerning which involved payments from RTMMC of more than $100,000 to any Person supplying advertising services or marketing services or materials to any of the establishmentRTM Parties or any of their Subsidiaries during the twelve-month period ended May 30, control, maintenance or operation of a partnership, joint venture or other similar agreement or arrangement, in each case that is material to the Business2004;
(vi) all material Leasesany Contract which involved payments to RTMMC of more than $100,000 from any Person supplying beverage products to any of the RTM Parties or any of their Subsidiaries during the twelve-month period ended May 30, 2004;
(vii) a any Contract (A) pursuant relating to which a distributor (the management or control of any Affiliate of RTMMC, including any affiliate of Seller) has the right to distribute or resell products of the Business and (B) involving aggregate payments in excess of $100,000 in RTM Related Entities or the twelve (12)-month period ended January 31, 2023other RTM Parties or their Subsidiaries;
(viii) any Contract that is a mortgagerelating to the employment of any employee, indenture, guaranty, financial, loan or credit agreement, security agreement or is a and any Contract pursuant to which RTMMC is or may become obligated to make any Transferred Subsidiary is a party creating severance, termination, bonus or granting relocation payment or any Lien on any assets or properties of any Transferred Subsidiary, other payment (other than Permitted Lienspayments in respect of salary) in excess of $125,000, to any current or former employee, officer or director;
(ix) any Contract that is a hedgingwhich provides for indemnification by RTMMC of (A) any officer, futuresdirector or employee of any of the RTM Parties or any of their Subsidiaries or (B) any agent of the RTM Parties or any of their Subsidiaries or any other Person that, options in the case of this clause (B), has resulted in or other derivative Contractwould reasonably be expected to result in, individually or in the aggregate, material Liabilities to RTMMC;
(x) any Contract for relating to any Indebtedness, guarantying the acquisition performance of any Person or guarantying any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereofIndebtedness;
(xi) any royalty Contract involving a purchase price of $50,000 or similar Contract based on more under which the revenues closing of the transactions contemplated thereby has not occurred or profits under which there remains outstanding obligations and which relates to the acquisition by RTMMC of any Transferred Subsidiaryoperating business or the capital stock or other equity securities of any other Person, or the sale by RTMMC of any operating business or the capital stock or other equity securities of any former Subsidiary of RTMMC;
(xii) any partnership or joint venture agreement or other Contract involving a sharing of indemnification profits, losses, costs or guaranty to Liabilities with any Person not made in the ordinary course of businessother Person;
(xiii) any Contract with any Governmental Entity;
(xiv) any Contract relating to the acquisition or disposition of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);
(xv) any Contract under which RTMMC uses or occupies or has the Transferred Subsidiaries have an obligation with respect right to an “earn out,” contingent purchase priceuse or occupy any real property (collectively, or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof;
(xxii) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii"RTMMC REAL PROPERTY LEASES") (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with respect to actions in such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involves: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Laws.
(b) All Contracts set forth or required to be set forth in Section 3.12 of the Disclosure Schedule (including, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding and in full force and effect, subject, as to enforcement, to the Enforceability Exceptions. The true, correct and complete copies of all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b2.12(a)(xiii) of the RTMMC Disclosure Schedule provides an accurate Letter sets forth a true and complete description summary of the material following terms of each Business Contract that is not in written form.such RTMMC Real Property Lease:
(c1) Except as set forth in Section 3.12(cthe lessee; (2) of the Disclosure Schedule, none of unit number; (3) the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been monthly rental rate; (and continue to be subject to ongoing obligations in connection therewith4) in material breach or default under the Business Contracts, and, monthly operating expenses payable to the Knowledge of Seller, no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, that (with or without notice or lapse of time) will or would reasonably be expected to (i) result in a material violation or breach of any of the provisions of any Business Contractlandlord; (ii5) give any Person the right to declare a material default or exercise any remedy under any Business Contractmonthly rental taxes; (iii6) give any Person the right to accelerate commencement date and the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, to the Knowledge of Seller, other communication regarding any actual or possible violation or breach of, or material default under, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights under any Business Contract.termination date;
Appears in 1 contract
Contracts. (a) Section 3.12(a4(p) of the Disclosure Schedule sets forth, as of the date hereof, each Transferred Contract of lists the following typescontracts and other agreements to which Target is a party:
(i) a collective bargaining any agreement (or other Contract with group of related agreements) for the lease of personal property to or from any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”)Person regardless of amount;
(ii) any agreement (or group of related agreements) for the purchase or sale of raw materials, commodities, supplies, products, or other personal property, or for the furnishing or receipt of services, the performance of which will extend over a Contract with any Top Customer (as defined below)period of more than one year, including purchase orders covering result in a payment amount loss to Target, or involve consideration in excess of $2,000,000 or more, other than (A) in the ordinary course of business, (B) non-disclosure agreements, (C) sales acknowledgments, (D) purchase orders covering a payment amount of under $2,000,000 or (E) statements of work that have been satisfied in full10,000;
(iii) any agreement concerning a Contract with any Top Vendor (as defined below), including a purchase partnership or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in fulljoint venture;
(iv) a Contract any agreement (or group of related agreements) under which any Transferred Subsidiary it has borrowed any money fromcreated, incurred, assumed, or issued guaranteed any noteindebtedness for borrowed money, bond, debenture or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to or as of the Closing)capitalized lease obligation;
(v) a Contract any agreement concerning the establishment, control, maintenance confidentiality or operation of a partnership, joint venture or other similar agreement or arrangement, in each case that is material to the Businessnon-competition;
(vi) all material Leasesany agreement with any Seller and any of Sellers’ Affiliates (other than Target);
(vii) a Contract (A) pursuant to which a distributor (including any affiliate profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or other plan or arrangement for the benefit of Seller) has the right to distribute its current or resell products of the Business former directors, officers, and (B) involving aggregate payments in excess of $100,000 in the twelve (12)-month period ended January 31, 2023employees;
(viii) any Contract that is a mortgage, indenture, guaranty, financial, loan or credit collective bargaining agreement, security agreement or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted Liens;
(ix) any Contract that is agreement for the employment of any individual on a hedgingfull-time, futurespart-time, options consulting, or other derivative Contractbasis providing annual compensation in excess of $10,000 or providing severance benefits;
(x) any Contract for agreement under which it has advanced or loaned any amount to any of its directors, officers, and employees outside the acquisition Ordinary Course of any Person or any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereofBusiness;
(xi) any royalty agreement under which the consequences of a default or similar Contract based on the revenues or profits of any Transferred Subsidiarytermination could have a Material Adverse Effect;
(xii) any Contract of indemnification or guaranty to agreement under which it has granted any Person not made in the ordinary course of businessany registration rights (including, without limitation, demand and piggyback registration rights);
(xiii) any Contract with agreement under which Target has advanced or loaned any Governmental Entity;other Person any amounts; or
(xiv) any Contract relating to other agreement (or group of related agreements) the acquisition or disposition performance of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);
(xv) any Contract under which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary involves consideration in excess of $1,500,000 10,000. Sellers have delivered to Buyer a correct and complete copy of each written agreement (as amended to date) listed in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof;
(xxiiSection 4(p) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available Disclosure Schedule and a written summary setting forth the terms and conditions of each oral agreement referred to Purchaser and (Bin Section 4(p) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with Disclosure Schedule. With respect to actions in each such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involvesagreement: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individuallyagreement is legal, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Laws.
(b) All Contracts set forth or required to be set forth in Section 3.12 of the Disclosure Schedule (including, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding binding, enforceable, and in full force and effect, subject, as to enforcement, to ; (B) the Enforceability Exceptions. The true, correct and complete copies of all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and agreement will continue to be subject to ongoing obligations legal, valid, binding, enforceable, and in connection therewithfull force and effect on identical terms following the consummation of the transactions contemplated hereby; (C) no party is in material breach or default under the Business Contractsdefault, and, to the Knowledge of Seller, and no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, that (occurred which with or without notice or lapse of timetime would constitute a breach or default, or permit termination, modification, or acceleration, under the agreement; and (D) will or would reasonably be expected to (i) result in a material violation or breach of no party has repudiated any provision of the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, to the Knowledge of Seller, other communication regarding any actual or possible violation or breach of, or material default under, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights under any Business Contractagreement.
Appears in 1 contract
Contracts. (a) Section 3.12(a) 2B.14 of the Disclosure Schedule sets forth, lists the following agreements (written or oral) to which the Company or any Subsidiary is a party as of the date hereof, each Transferred Contract of the following typesthis Agreement:
(i) any agreement (or group of related agreements) for the lease of personal property from or to third parties providing for lease payments in excess of $10,000 per annum or having a collective bargaining agreement or other Contract with any labor organization, trade union, works council or similar bargaining representative remaining term longer than twelve (a “Collective Agreement”)12) months;
(ii) a Contract with any Top Customer agreement (as defined below), including or group of related agreements) for the purchase orders covering a payment amount or sale of $2,000,000 products or more, other than for the furnishing or receipt of services (A) in the ordinary course which calls for performance over a period of businessmore than one year, (B) non-disclosure agreementswhich involves more than the sum of $20,000, or (C) sales acknowledgmentsin which the Company has granted manufacturing rights, (D) purchase orders covering a payment amount of under $2,000,000 "most favored nation" pricing provisions or (E) statements of work that have been satisfied in full;marketing or distribution rights relating to any products or territory or has agreed to purchase
(iii) any agreement establishing a Contract with any Top Vendor (as defined below), including a purchase partnership or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in fulljoint venture;
(iv) a Contract any agreement (or group of related agreements) under which it has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) involving more than $10,000 or under which it has imposed (or may impose) a Security Interest on any Transferred Subsidiary has borrowed any money fromof its assets, tangible or issued any note, bond, debenture or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to or as of the Closing)intangible;
(v) a Contract any agreement concerning the establishment, control, maintenance confidentiality or operation of a partnership, joint venture or other similar agreement or arrangement, in each case that is material to the Businessnoncompetition;
(vi) all material Leasesany employment or consulting agreement;
(vii) a Contract (A) pursuant to which a distributor (including any agreement involving any officer, director or stockholder of the Company or any affiliate (an "Affiliate"), as defined in Rule 12b-2 under the Securities Exchange Act of Seller) has 1934, as amended (the right to distribute or resell products of the Business and (B) involving aggregate payments in excess of $100,000 in the twelve (12)-month period ended January 31"Exchange Act"), 2023thereof;
(viii) any Contract that is agreement under which the consequences of a mortgage, indenture, guaranty, financial, loan default or credit agreement, security agreement or is termination would reasonably be expected to have a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted LiensCompany Material Adverse Effect;
(ix) any Contract that is a hedgingagreement which contains any provisions requiring the Company or any Subsidiary to indemnify any other party thereto (excluding indemnities contained in agreements for the purchase, futures, options sale or other derivative Contract;license of products entered into in the Ordinary Course of Business); and
(x) any Contract for the acquisition other agreement (or group of any Person or any business unit thereof or the disposition of any assets, other than (Arelated agreements) Contracts for acquisitions or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated either involving more than three (3) years prior to the date hereof;
(xi) any royalty $25,000 or similar Contract based on the revenues or profits of any Transferred Subsidiary;
(xii) any Contract of indemnification or guaranty to any Person not made in the ordinary course of business;
(xiii) any Contract with any Governmental Entity;
(xiv) any Contract relating to the acquisition or disposition of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);
(xv) any Contract under which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course Ordinary Course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof;
(xxii) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with respect to actions in such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involves: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable LawsBusiness.
(b) All Contracts set forth or required The Company has delivered to be set forth the Buyer a complete and accurate copy of each agreement listed in Section 3.12 2B.13 or Section 2B.14 of the Disclosure Schedule Schedule. With respect to each agreement so listed: (includingi) the agreement is legal, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding and enforceable and in full force and effect, subject, as to enforcement, to the Enforceability Exceptions. The true, correct and complete copies of all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default under the Business Contracts, and, to the Knowledge of Seller, no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, that (with or without notice or lapse of time) will or would reasonably be expected to (i) result in a material violation or breach of any of the provisions of any Business Contract; (ii) give any Person the right agreement will continue to declare a material default or exercise any remedy under any Business Contractbe 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) give any Person neither the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice orCompany nor, to the Knowledge knowledge of Sellerthe Company, any other communication regarding any actual party, is in breach or possible violation or breach of, or material default under, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights under any Business Contract.,
Appears in 1 contract
Sources: Stock Purchase Agreement (Silverstream Software Inc)
Contracts. (a) Section 3.12(a3.18(a) of the Disclosure Schedule sets forth, as contains a true and complete list of the date hereof, each Transferred Contract of the following types:contracts and agreements (such contracts and agreements being “Material Contracts”):
(i) a collective bargaining agreement or other Contract with any labor organizationall property management contracts, trade unionfacility management contracts and property development contracts of the Companies and, works council or similar bargaining representative to Seller’s Knowledge, architects’ and engineers’ contracts, and construction management contracts for the Real Properties listed on Section 3.18(a) of the Disclosure Schedule that are presently in construction (a the “Collective AgreementActive Projects”);
(ii) all joint venture, partnership or other contract (however named) involving a Contract sharing of profits, losses, costs or liabilities by any of the Companies or, to Seller’s Knowledge, any of the Transferred Entities or Property Owners with any Top Customer (as defined below), including purchase orders covering a payment amount of $2,000,000 or more, other Person other than (A) in the ordinary course of business, (B) non-disclosure agreements, (C) sales acknowledgments, (D) purchase orders covering a payment amount of under $2,000,000 or (E) statements of work that have been satisfied in fullOrganizational Documents and the Economic Interests;
(iii) a Contract with any Top Vendor (as defined below), including a purchase or service order covering a payment amount the material contracts and agreements relating to Indebtedness of $1,000,000 or more, other than (Athe Companies and the Transferred Entities and the Indebtedness listed on Section 3.15(b) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in fullthe Disclosure Schedule;
(iv) a Contract under which to Seller’s Knowledge, all commercial leases of any Transferred Subsidiary has borrowed any money from, or issued any note, bond, debenture or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to or as portion of the ClosingReal Properties for which the annual base rent is in excess of $100,000 (the “Real Property Leases”);
(v) a Contract concerning the establishment, control, maintenance all contracts and agreements that limit or operation of a partnership, joint venture or other similar agreement or arrangement, in each case that is material purport to the Business;
(vi) all material Leases;
(vii) a Contract (A) pursuant to which a distributor (including any affiliate of Seller) has the right to distribute or resell products of the Business and (B) involving aggregate payments in excess of $100,000 in the twelve (12)-month period ended January 31, 2023;
(viii) any Contract that is a mortgage, indenture, guaranty, financial, loan or credit agreement, security agreement or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted Liens;
(ix) any Contract that is a hedging, futures, options or other derivative Contract;
(x) any Contract for the acquisition of any Person or any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereof;
(xi) any royalty or similar Contract based on the revenues or profits of any Transferred Subsidiary;
(xii) any Contract of indemnification or guaranty to any Person not made in the ordinary course of business;
(xiii) any Contract with any Governmental Entity;
(xiv) any Contract relating to the acquisition or disposition of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);
(xv) any Contract under which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary of the Companies to engage compete in the Business any line of business or compete with respect to the Business with any Person or in any geographic area or during any period of time;
(vi) all contracts for the ability employment for any period of time whatsoever, or in regard to the employment, or restricting the employment, of any affiliate employee of any Transferred Subsidiary of the Companies;
(vii) all agreements for the payment of severance benefits, retention bonuses or so-called “sale bonuses” to any employees of any of the Companies, other than the Transferred Subsidiaries themselves) Economic Interests and excluding any discretionary bonuses that Seller may elect to solicit customers or employees; (B) involving pay if the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Persontransactions contemplated by this Agreement are consummated;
(xviiviii) all contracts between any Contract that contains a license, sublicense or other provision under which of the Companies and any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposesRelated Parties;
(xviiiix) any Contract that contains a licenseall performance or completion bonds, sublicense or other provision under surety or indemnification agreements with respect to which a Transferred Subsidiary has granted the Seller and/or one or assigned rights more of the Principals is liable;
(x) to others in Business Intellectual PropertySeller’s Knowledge, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers all brokerage agreements for the limited purpose leasing of providing commercial space in any of the applicable services Real Properties;
(xi) to Seller’s Knowledge, all contracts and agreements (excluding subcontracts with contractors or materialmen) and site plan approvals relating to the construction of any of the Active Projects; and
(xii) all other contracts and agreements which are material to the Business, the Companies, the Assets or, to Seller’s Knowledge, the Real Properties (it being understood that, in respect of the Real Properties, a contract or agreement shall only be deemed to be material for the purposes of this subparagraph (a)(xii) if it involves the receipt or expenditure of $1,000,000 or more during any twelve-month period).
(b) Section 3.18(b) of the Disclosure Schedule identifies all guaranties of Indebtedness owed by any of the Property Owners made by Seller or any of the Principals which are in effect as of the date hereof (the “Principal Guaranties”), and identifies who is subject to such Principal Guaranty, the obligor of the Indebtedness guaranteed, the holder of such Indebtedness and the amount guaranteed. None of the Companies or to Seller’s Knowledge, any Transferred SubsidiaryEntities have guaranteed any Indebtedness of any Person, or except as set forth in Section 3.18(b) of the Disclosure Schedule.
(Dc) non-exclusive licenses to Trademarks Each Material Contract (i) was entered into in the ordinary course Ordinary Course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
Business and (xixii) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), valid and binding on the one handCompanies, and any Transferred SubsidiariesEntities or Property Owners party thereto, on as the other handcase may be, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary in excess of $1,500,000 in the aggregateand, whether or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof;
(xxii) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or Seller’s Knowledge, the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation counterparties thereto, is in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser full force and effect and (Biii) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the upon consummation of any of the transactions contemplated by this Agreement;
(xxiv) , except to the extent that any Contract that provides that fees or expenses of any outside accountantsThird Party Consents are not obtained, external legal counsel shall continue in full force and effect without penalty or other outside advisors retained adverse consequence. None of the Companies or Transferred Entities, or, to Seller’s Knowledge, the Property Owners or any other party thereto, are in breach of, or default under, any Material Contract, except for such breaches or defaults that would not have a Material Adverse Effect, individually or in the aggregate. The Companies are not restricted by any agreement from carrying on the Seller Guarantor Business in any geographic location. There are no negotiations pending or its affiliates in connection progress to revise any Material Contract in any material respect, other than change orders, changes in scope, or other changes in the Ordinary Course of Business with this Agreement respect to construction agreements, and changes related to the management of those properties owned by ▇▇▇▇▇ or Affiliates of ▇▇▇▇▇ which may be terminated by ▇▇▇▇▇ or Affiliates of ▇▇▇▇▇ by virtue of the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with respect to actions in such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involves: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Lawshereby.
(bd) All Contracts set forth or required Without limiting the generality of subsection (c), with regard to be the Real Property Leases, except as set forth in Section 3.12 3.18(d) of the Disclosure Schedule Schedule: (including, for i) the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 Real Property Leases are valid and binding obligations of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing)landlord thereunder and, all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such ContractsSellers’ Knowledge, the “Business Contracts”) tenants thereunder, and are valid, binding and in full force and effect; (ii) neither the Companies nor to Seller’s Knowledge any of the Property Owners has received any material written notices of default by the applicable landlord which remains uncured; (iii) neither the Companies, subject, nor to Seller’s Knowledge any of the Property Owners has given any written notices of default by the applicable tenant under any Real Property Lease which remains uncured; and (iv) except as to enforcementexpressly set forth in the Real Property Leases, to Seller’s Knowledge no tenant is entitled, now or in the Enforceability Exceptions. future, to any concession, rebate, offset, allowance or free rent for any period nor has any such claim been asserted in writing by any tenant.
(e) The Seller has provided or made available to the Purchaser and the Parents true, correct accurate and complete copies of all written Business Material Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal DataReal Property Leases). Section 3.12(b) of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default under the Business Contracts, and, to the Knowledge of Seller, no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, that (with or without notice or lapse of time) will or would reasonably be expected to (i) result in a material violation or breach of any of the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, to the Knowledge of Seller, other communication regarding any actual or possible violation or breach of, or material default under, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights under any Business Contract.
Appears in 1 contract
Sources: Membership Interest and Asset Purchase Agreement (Mack Cali Realty L P)
Contracts. (a) Section 3.12(a3.2(p) of the Disclosure Schedule sets forth, as lists the following contracts and other agreements to which any of the date hereof, each Transferred Contract of the following typesCompany or its Subsidiaries is a party:
(i) a collective bargaining any agreement (or group of related agreements) for the consignment or lease of machinery, equipment or other Contract with personal property to or from any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”)Person providing for lease payments in excess of $50,000 per annum;
(ii) any agreement (or group of related agreements) for the purchase or sale of raw materials, products, machinery, equipment or other personal property, or for the furnishing or receipt of services, the performance of which will extend over a Contract with any Top Customer (as defined below), including purchase orders covering a payment amount period of $2,000,000 or moremore than one year or, other than (A) with respect to standard form purchase orders entered into in the ordinary course Ordinary Course of businessBusiness for the purchase of raw materials or supplies, (B) non-disclosure agreements, (C) sales acknowledgments, (D) purchase orders covering a payment amount involve consideration in excess of under $2,000,000 or (E) statements of work that have been satisfied in full50,000 per annum;
(iii) a Contract with any Top Vendor (as defined below)pledge, including a purchase conditional sale or service order covering a title retention agreement involving the payment amount of more than $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied 50,000 in fullthe aggregate;
(iv) any agreement concerning a Contract under which any Transferred Subsidiary has borrowed any money from, partnership or issued any note, bond, debenture or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to or as of the Closing)joint venture;
(v) a Contract concerning the establishmentany agreement (or group of related agreements) under which it has created, controlincurred, maintenance assumed, or operation of a partnershipguaranteed any indebtedness for borrowed money, joint venture any mortgage, indenture, note, bond or other similar agreement relating to indebtedness incurred or arrangementprovided by the Company or any of the Subsidiaries, or any capitalized lease obligation, in each case that is material to the Businesscase, in excess of $100,000 or under which it has imposed a Security Interest on any of its assets, tangible or intangible;
(vi) all material Leasesany agreement concerning confidentiality or noncompetition with the effect of prohibiting the Company or any of its Subsidiaries from freely engaging in any business;
(vii) a Contract (A) pursuant to which a distributor (including any affiliate of Seller) has the right to distribute or resell products material agreement with any of the Business Sellers and their Affiliates (B) involving aggregate payments in excess of $100,000 in other than the twelve (12)-month period ended January 31, 2023Company and its Subsidiaries);
(viii) any Contract that is a mortgageprofit sharing, indenturestock option, guarantystock purchase, financialstock appreciation, loan deferred compensation, severance, or credit agreementother material plan or CONFORMED COPY arrangement for the benefit of its current or former directors, security agreement officers, or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted Liensemployees;
(ix) any Contract that is a hedgingmaterial license, futures, options royalty or other derivative Contractagreement relating to the Company Proprietary Rights;
(x) except as provided under subsection (v) above, any Contract agreement containing commitments of suretyship, guarantee or indemnification (except for guarantees, warranties and indemnities provided by the acquisition of any Person Company or any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory Subsidiary in the ordinary course of business and those having a contract value, individually or (B) for acquisitions in the aggregate of $25,000 or dispositions that were consummated more than three (3) years prior to the date hereofless);
(xi) any royalty or similar Contract based on the revenues or profits of any Transferred Subsidiaryagreement involving a governmental body;
(xii) any Contract of indemnification or guaranty to any Person not made in the ordinary course of businesscollective bargaining agreement;
(xiii) any Contract with agreement for the employment of any Governmental Entityindividual on a full-time, part-time, consulting, or other basis providing annual compensation in excess of $50,000 or providing material severance benefits;
(xiv) any Contract relating to agreement under which the acquisition consequences of a default or disposition of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise)termination could have a Material Adverse Effect;
(xv) any Contract under other agreement (or group of related agreements) the performance of which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;involves consideration in excess of $50,000; or
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary commitment to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof;
(xxii) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of do any of the transactions contemplated by this Agreement;
foregoing described in clauses (xxivi) any Contract that provides that fees or expenses through (xvi). The Sellers have delivered to the Buyer a correct and complete copy of any outside accountants, external legal counsel or other outside advisors retained by each written agreement listed in Section 3.2(p) of the Seller Guarantor or its affiliates Disclosure Schedule (as amended to date) and a written summary setting forth the material terms and conditions of each oral agreement referred to in connection with this Agreement and Section 3.2(p) of the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with Disclosure Schedule. With respect to actions in each such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involvesagreement: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individuallyagreement is legal, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Laws.
(b) All Contracts set forth or required to be set forth in Section 3.12 of the Disclosure Schedule (including, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding binding, enforceable, and in full force and effect, subject, as to enforcement, to the Enforceability Exceptions. The true, correct effect in all material respects and complete copies of all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and will continue to be subject to ongoing obligations in connection therewithso following the Closing; (B) no party is in material breach or default under the Business Contractsdefault, and, to the Knowledge of Seller, and no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, that (occurred which with or without notice or lapse of time) will or time would reasonably be expected to (i) result in constitute a material violation breach or breach of default, or permit termination, modification, or acceleration, under the agreement; and (C) no party has repudiated any material provision of the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, to the Knowledge of Seller, other communication regarding any actual or possible violation or breach of, or material default under, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights under any Business Contractagreement.
Appears in 1 contract
Contracts. (ai) Section 3.12(a4(o) of the Seller Disclosure Schedule sets forth, as of the date hereof, each Transferred Contract of lists the following typescontracts and other agreements to which any of Seller and its Subsidiaries is a party:
(i) a collective bargaining agreement or other Contract with any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”);
(ii) a Contract with any Top Customer (as defined below), including purchase orders covering a payment amount of $2,000,000 or more, other than (A) in any agreement (or group of related agreements) for the ordinary course lease of business, (B) non-disclosure agreements, (C) sales acknowledgments, (D) purchase orders covering a payment amount of under $2,000,000 or (E) statements of work that have been satisfied in full;
(iii) a Contract with any Top Vendor (as defined below), including a purchase or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in full;
(iv) a Contract under which any Transferred Subsidiary has borrowed any money from, or issued any note, bond, debenture or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior personal property to or as of the Closing);
(v) a Contract concerning the establishment, control, maintenance or operation of a partnership, joint venture or other similar agreement or arrangement, in each case that is material to the Business;
(vi) all material Leases;
(vii) a Contract (A) pursuant to which a distributor (including any affiliate of Seller) has the right to distribute or resell products of the Business and (B) involving aggregate payments in excess of $100,000 in the twelve (12)-month period ended January 31, 2023;
(viii) any Contract that is a mortgage, indenture, guaranty, financial, loan or credit agreement, security agreement or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted Liens;
(ix) any Contract that is a hedging, futures, options or other derivative Contract;
(x) any Contract for the acquisition of any Person or any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereof;
(xi) any royalty or similar Contract based on the revenues or profits of any Transferred Subsidiary;
(xii) any Contract of indemnification or guaranty to any Person not made in the ordinary course of business;
(xiii) any Contract with any Governmental Entity;
(xiv) any Contract relating to the acquisition or disposition of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);
(xv) any Contract under which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xviiB) any Contract that contains a licenseagreement (or group of related agreements) for the purchase or sale of raw materials, sublicense commodities, supplies, products, or other provision under personal property, or for the furnishing or receipt of services, the performance of which will extend over a period of more than one year, result in a loss to any Transferred Subsidiary is granted of Seller and its Subsidiaries, or assigned rights by others involve consideration in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, excess of $10,000;
(C) permitted use rights granted in non-disclosure agreements, and any agreement concerning a partnership or joint venture;
(D) non-exclusive licenses any agreement (or group of third party Trademarks solely related agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness for the inclusion borrowed money, or any capitalized lease obligation, under which it has imposed an Encumbrance on any of such Trademarks in a customer list its assets, tangible or similar marketing purposesintangible;
(xviiiE) any Contract that contains a license, sublicense agreement concerning confidentiality or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposesnoncompetition;
(xixF) a Contract that is required to be filed by any agreement involving any of the Principal Stockholders and their Affiliates (other than Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(iand its Subsidiaries) or any officers or directors of Regulation S-K under the Securities ActSeller;
(xxG) any Contract between Employee Benefit Plan, profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or other plan or arrangement for the benefit of its current or former directors, officers, and employees;
(H) any member collective bargaining agreement;
(I) any agreement for the employment of any individual on a full-time, part-time, consulting, or other basis or providing severance benefits;
(J) any agreement under which it has advanced or loaned any amount to any of its current or former directors, officers, and employees;
(K) any supply or vendor agreement under which Seller receives any services, goods, or other items (including Internet bandwidth) the performance of which involves consideration in excess of $10,000;
(L) any agreement under which the consequences of a default or termination could cause Seller Material Adverse Effect;
(M) any other agreement (or group of related agreements) the performance of which involves consideration in excess of $10,000 in the aggregate over the term of the Agreement;
(N) any other contract, lease, license or other agreements or arrangements that is used in the operation by Seller Group of its business; and
(O) any agreement imposing any material restriction on the right of Seller or any of its affiliates Subsidiaries to compete with any other Person.
(ii) The documents listed on Section 4(o) of Seller Disclosure Schedule and identified as Acquired Contracts constitute all of the contracts, leases, accounts receivable, licenses, instruments and other agreements or arrangements used by Seller and its Subsidiaries in the operation of its business other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;Excluded Assets.
(xxiiii) any Contract involving capital expenditures by a Transferred Subsidiary in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which Seller has material ongoing obligations following the date hereof;
(xxii) any Contract relating delivered to the settlement Buyer a correct and complete copy of any Proceeding pursuant each written agreement listed in Section 4(o) of Seller Disclosure Schedule (as amended to which any Transferred Subsidiary or date) and a written summary setting forth the Business will have any material outstanding obligations after the Closing;
(xxiiiterms and conditions of each oral agreement referred to in Section 4(o) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with Disclosure Schedule. With respect to actions in each such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involvesagreement: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individuallyagreement is legal, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Laws.
(b) All Contracts set forth or required to be set forth in Section 3.12 of the Disclosure Schedule (including, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding binding, enforceable, and in full force and effect, subject, as to enforcement, to ; (B) the Enforceability Exceptions. The true, correct and complete copies of all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and agreement will continue to be subject legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated hereby (including the assignments and assumptions referred to ongoing obligations in connection therewithSection 2 above); (C) no party is in material breach or default under the Business Contractsdefault, and, to the Knowledge of Seller, and no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, that (occurred which with or without notice or lapse of timetime would constitute a breach or default, or permit termination, modification, or acceleration, under the agreement; and (D) will or would reasonably be expected to (i) result in a material violation or breach of no party has repudiated any provision of the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, to the Knowledge of Seller, other communication regarding any actual or possible violation or breach of, or material default under, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights under any Business Contractagreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Vitalstream Holdings Inc)
Contracts. (a) Section 3.12(a4(p) of the Disclosure Schedule sets forth, as of the date hereof, each Transferred Contract of lists the following typescontracts and other agreements to which either Company or any of its Subsidiaries is a party:
(i) a collective bargaining any agreement (or other Contract with group of related agreements) for the lease of personal property to or from any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”)Person providing for lease payments in excess of $25,000 per annum;
(ii) any agreement (or group of related agreements) for the purchase or sale of raw materials, commodities, supplies, products, or other personal property, or for the furnishing or receipt of services, the performance of which will extend over a Contract with period of more than one year, result in a material loss to any Top Customer (as defined below)of the Companies and its Subsidiaries, including purchase orders covering a payment amount or involve consideration in excess of $2,000,000 or more, other than (A) in the ordinary course of business, (B) non-disclosure agreements, (C) sales acknowledgments, (D) purchase orders covering a payment amount of under $2,000,000 or (E) statements of work that have been satisfied in full25,000;
(iii) any agreement concerning a Contract with any Top Vendor (as defined below), including a purchase partnership or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in fulljoint venture;
(iv) a Contract any agreement (or group of related agreements) under which any Transferred Subsidiary it has borrowed any money fromcreated, incurred, assumed, or issued guaranteed any noteindebtedness for borrowed money, bondor any capitalized lease obligation, debenture in excess of $25,000 or other evidence under which it has imposed a Lien on any of indebtedness of borrowed money toits assets, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to tangible or as of the Closing)intangible;
(v) a Contract any agreement concerning the establishment, control, maintenance confidentiality or operation of a partnership, joint venture or other similar agreement or arrangement, in each case that is material to the Businessnoncompetition;
(vi) all material Leasesany agreement with any of Sellers and their Affiliates (other than one of the Companies and its Subsidiaries);
(vii) a Contract (A) pursuant to which a distributor (including any affiliate profit sharing, interest option, interest purchase, interest appreciation, deferred compensation, severance, or other material plan or arrangement for the benefit of Seller) has the right to distribute its current or resell products of the Business former members, managers, officers, and (B) involving aggregate payments in excess of $100,000 in the twelve (12)-month period ended January 31, 2023employees;
(viii) any Contract that is a mortgage, indenture, guaranty, financial, loan or credit collective bargaining agreement, security agreement or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted Liens;
(ix) any Contract that is agreement for the employment of any individual on a hedgingfull-time, futurespart-time, options consulting, or other derivative Contractbasis providing annual compensation in excess of $50,000 or providing severance benefits;
(x) any Contract for agreement under which it has advanced or loaned any amount to any of its members, managers, officers, or employees outside the acquisition Ordinary Course of any Person or any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereofBusiness;
(xi) any royalty agreement under which the consequences of a default or similar Contract based on the revenues or profits of any Transferred Subsidiarytermination could have a Material Adverse Effect;
(xii) any Contract agreement under which either Company or any of indemnification its Subsidiaries has advanced or guaranty to loaned any other Person not made amounts in the ordinary course of business;aggregate exceeding $25,000; or
(xiii) any Contract with any Governmental Entity;
other agreement (xivor group of related agreements) any Contract relating to the acquisition or disposition performance of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);
(xv) any Contract under which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary involves consideration in excess of $1,500,000 25,000. Sellers have delivered to Buyer a correct and complete copy of each written agreement (as amended to date) listed in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof;
(xxiiSection 4(p) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with Disclosure Schedule. With respect to actions in each such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involvesagreement: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individuallyagreement is legal, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Laws.
(b) All Contracts set forth or required to be set forth in Section 3.12 of the Disclosure Schedule (including, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding binding, enforceable, and in full force and effect, subject, as to enforcement, to ; (B) the Enforceability Exceptions. The true, correct and complete copies of all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and agreement will continue to be subject to ongoing obligations legal, valid, binding, enforceable, and in connection therewithfull force and effect on identical terms following the consummation of the transactions contemplated hereby; (C) no party is in material breach or default under the Business Contractsdefault, and, and to the Knowledge of Seller, Sellers no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, that (occurred which with or without notice or lapse of timetime would constitute a breach or default, or permit termination, modification, or acceleration, under the agreement; and (D) will or would reasonably be expected to (i) result in a material violation or breach of no party has repudiated any provision of the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, to the Knowledge of Seller, other communication regarding any actual or possible violation or breach of, or material default under, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights under any Business Contractagreement.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Steakhouse Partners Inc)
Contracts. (a) Except for the Contracts disclosed pursuant to Section 3.12(a) of 2.13, Schedule 2.14 lists the Disclosure Schedule sets forthfollowing Contracts to which the Company is currently a party or is subject to and which have not, as of the date hereof, each Transferred Contract of the following typesbeen fully performed:
(ia) a collective bargaining any agreement (or group of related agreements) for the purchase of inventory, products, machinery, equipment or other Contract with any labor organizationpersonal property or real property, trade union, works council or similar bargaining representative (a “Collective Agreement”)for the furnishing or receipt of services requiring payments in excess of $50,000 per year;
(iib) a any Contract with (or group of related Contracts) for the consignment or lease of machinery, equipment or other personal property or real property to or from any Top Customer (as defined below), including purchase orders covering a payment amount Person requiring payments in excess of $2,000,000 or more, other than (A) in the ordinary course of business, (B) non-disclosure agreements, (C) sales acknowledgments, (D) purchase orders covering a payment amount of under $2,000,000 or (E) statements of work that have been satisfied in full50,000 per year;
(iiic) a Contract with any Top Vendor (as defined below)capitalized lease, including a purchase pledge, conditional sale or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in fulltitle retention agreement;
(ivd) a Contract under which any Transferred Subsidiary has borrowed any money from, or issued any note, bond, debenture or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to or as of the Closing);
(v) a Contract agreement concerning the establishment, control, maintenance or operation of a partnership, joint venture or other similar agreement investment or arrangement, in each case that is material relating to the Businessany distributorship or franchise;
(vie) all material Leasesany agreement (or group of related agreements) under which it has created, incurred, assumed, or guaranteed any Indebtedness for borrowed money or any other obligation, or any capitalized lease obligation, or under which there is imposed an Encumbrance on any of its assets, tangible or intangible;
(viif) a any agreement concerning confidentiality or noncompetition or otherwise prohibiting the Company from freely engaging in any business or requiring it to exclusively sell or purchase to or from any Person;
(g) any Contract (A) pursuant to which a distributor with any of its Affiliates (including Seller), officer or director or any affiliate family member of an Affiliate (including Seller), officer or director;
(h) has any agreement containing commitments of suretyship, guarantee or indemnification;
(i) any mortgage, indenture, note, bond or other agreement relating to Indebtedness provided by the right to distribute Company or resell products any of its Subsidiaries;
(j) any agreement involving an Authority;
(k) any collective bargaining agreement;
(l) any agreement for the Business and (B) involving aggregate employment of any individual on a full-time, part-time, consulting or other basis providing for payments in excess of $100,000 in the twelve (12)-month period ended January 31, 2023per year;
(viiim) any Contract that is a mortgage, indenture, guaranty, financial, loan agreement providing severance benefits or credit agreement, security agreement payments upon the sale of the Company or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted Liensits Subsidiaries;
(ixn) any Contract that is agreement under which the consequences of a hedging, futures, options default or other derivative Contracttermination could reasonably be expected to have a Material Adverse Effect;
(xo) any Contract advertising or marketing Contracts or similar agreements;
(p) Contracts providing for “take or pay” or similar unconditional purchase or payment obligations;
(q) Contracts relating to the acquisition of any Person or any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereof;
(xi) any royalty or similar Contract based on the revenues or profits of any Transferred Subsidiary;
(xii) any Contract of indemnification or guaranty to any Person not made in the ordinary course of business;
(xiii) any Contract with any Governmental Entity;
(xiv) any Contract relating to the acquisition or disposition of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise)) entered into since December 31, 2003;
(xvr) any Contract under other agreement (or group of related agreements) the performance of which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary involves consideration in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof;50,000 per year; or
(xxiis) any Contract relating commitment to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of do any of the transactions contemplated by this Agreement;
foregoing. Seller has delivered, or made available, to Purchaser a correct and complete copy of each written agreement listed in Schedule 2.14 (xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with as amended to date). With respect to actions each agreement listed or required to be listed in such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involvesSchedule 2.14: (A) the payment or delivery of cash or other consideration by agreement is, with respect to the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individuallyCompany, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individuallylegal, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Laws.
(b) All Contracts set forth or required to be set forth in Section 3.12 of the Disclosure Schedule (including, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding binding, enforceable, and in full force and effect, subject, as to enforcement, to effect in all material respects; (B) neither the Enforceability Exceptions. The true, correct and complete copies of all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default under the Business Contracts, andCompany nor, to the Knowledge of Seller, no any other party to any Business Contract thereto is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No default, and no event has occurredoccurred which with notice or lapse of time would constitute a material breach or default by the Company, andor permit termination, modification, or acceleration under the Contract; and (C) neither the Company nor, to the Knowledge of Seller, no circumstance or condition exists, that (with or without notice or lapse of time) will or would reasonably be expected to (i) result in a any other party has repudiated any material violation or breach of any provision of the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, to the Knowledge of Seller, other communication regarding any actual or possible violation or breach of, or material default under, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights under any Business Contract.
Appears in 1 contract
Contracts. (a) Section 3.12(ass.3(n) of the Disclosure Schedule sets forthlists the following contracts and other agreements to which the Target, as in connection with the operation of the date hereofBusiness, each Transferred Contract of the following typesis a party:
(i) a collective bargaining any agreement (or other Contract with group of related agreements) for the lease of personal property to or from any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”)Person providing for lease payments in excess of $10,000 per annum;
(ii) any agreement (or group of related agreements) for the purchase or sale of raw materials, commodities, supplies, products, or other personal property, or for the furnishing or receipt of services, the performance of which will extend over a Contract with any Top Customer (as defined below)period of more than one year, including purchase orders covering a payment amount or require expenditures consideration in excess of $2,000,000 or more10, other than (A) in the ordinary course of business, (B) non-disclosure agreements, (C) sales acknowledgments, (D) purchase orders covering a payment amount of under $2,000,000 or (E) statements of work that have been satisfied in full000;
(iii) any agreement concerning a Contract with any Top Vendor (as defined below)profit sharing, including a purchase or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in full;
(iv) a Contract under which any Transferred Subsidiary has borrowed any money from, or issued any note, bond, debenture or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to or as of the Closing);
(v) a Contract concerning the establishment, control, maintenance or operation of a partnership, joint venture or other similar arrangement;
(iv) any agreement (or arrangementgroup of related agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, in each case that is excess of $10,000 or under which it has imposed a Security Interest on any of its assets, tangible or intangible;
(v) any material to the Businessagreement concerning confidentiality, non-solicitation of employees or customers or noncompetition;
(vi) all any material Leasesagreement involving any of the Target Stockholders and their Affiliates;
(vii) any agreement for the employment of any individual on a Contract (A) pursuant to which a distributor (including any affiliate of Seller) has the right to distribute full-time, part-time, consulting, or resell products of the Business and (B) involving aggregate payments in excess of $100,000 in the twelve (12)-month period ended January 31, 2023other basis;
(viii) any Contract that is a mortgageagreement under which it has advanced or loaned any amount to any of the directors, indentureofficers, guaranty, financial, loan or credit agreement, security agreement or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties and employees of any Transferred Subsidiary, other than Permitted Liensthe Target outside the Ordinary Course of Business;
(ix) any Contract that is agreement under which the consequences of a hedgingdefault or termination could reasonably be expected to have a material adverse effect on the business, futuresfinancial condition, options operations, results of operations, or other derivative Contract;future prospects of the Business as a whole; or
(x) any Contract for other agreement (or group of related agreements) the acquisition performance of any Person or any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereof;
(xi) any royalty or similar Contract based on the revenues or profits of any Transferred Subsidiary;
(xii) any Contract of indemnification or guaranty to any Person not made in the ordinary course of business;
(xiii) any Contract with any Governmental Entity;
(xiv) any Contract relating to the acquisition or disposition of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);
(xv) any Contract under which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary involves consideration in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which 10,000. The Target has material ongoing obligations following the date hereof;
(xxii) any Contract relating delivered to the settlement Buyer a correct and complete copy of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiiieach written agreement listed in ss.3(n) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available Disclosure Schedule (as amended to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with date). With respect to actions in each such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involvesagreement: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individuallyagreement is legal, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Laws.
(b) All Contracts set forth or required to be set forth in Section 3.12 of the Disclosure Schedule (including, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding and enforceable obligation of Target, and in full force and effecteffect in all material respects, subject, as to enforcement, and after giving effect to the Enforceability Exceptions. The truetransfer, correct assignment and complete copies of all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) conveyances of the Disclosure Schedule provides an accurate and complete description of Acquired Asset contemplated hereby at the material terms of each Business Contract that is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure ScheduleClosing, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and will continue to be subject to ongoing obligations in connection therewithfull force and effect in all material respects; (B) Target is not in material breach or default under the Business Contractsdefault, and, to the Knowledge and no event has occurred which with notice or lapse of Seller, no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in time would constitute a material breach or default thereunder. No event by Target, or permit termination, modification, or acceleration by any other party thereto, under the agreement; and (C) Target has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, not received any notice that (with or without notice or lapse of time) will or would reasonably be expected to (i) result in a any party has repudiated any material violation or breach of any provision of the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, to the Knowledge of Seller, other communication regarding any actual or possible violation or breach of, or material default under, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights under any Business Contractagreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Mim Corp)
Contracts. (a) Section 3.12(a3.13(a) of the Company Disclosure Schedule sets forthlists the following agreements (each a “Contract”) to which the Company or any Subsidiary is, as of the date hereofof this Agreement, each Transferred Contract of a party and under which the following typesCompany or any Subsidiary has any remaining rights or obligations:
(i) a collective bargaining any agreement (or other Contract with any labor organization, trade union, works council group of related agreements) for the lease of personal property from or similar bargaining representative (a “Collective Agreement”)to third parties;
(ii) a Contract with any Top Customer agreement (as defined below), including or group of related agreements) for the purchase orders covering a payment amount or sale of $2,000,000 products or more, other than for the furnishing or receipt of services (A) in the ordinary course which calls for performance over a period of businessmore than one year, (B) non-disclosure agreementswhich involves more than the sum of $75,000, or (C) sales acknowledgmentsin which the Company or any Subsidiary has granted manufacturing rights, (D) “most favored nation” pricing provisions or marketing or distribution rights relating to any services, products or territory or has agreed to purchase orders covering a payment amount minimum quantity of under $2,000,000 goods or (E) statements of work that have been satisfied in fullservices or has agreed to purchase goods or services exclusively from a certain party;
(iii) a Contract with any Top Vendor (as defined below)agreement providing for any royalty, including a purchase milestone or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in fullsimilar payments by the Company;
(iv) a Contract under which any Transferred Subsidiary has borrowed any money from, or issued any note, bond, debenture or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to or as of the Closing);
(v) a Contract agreement concerning the establishment, control, maintenance establishment or operation of a partnership, joint venture or other similar limited liability company;
(v) any agreement (or arrangementgroup of related agreements) under which the Company or any Subsidiary has created, in each case that is material to the Businessincurred, assumed or guaranteed (or may create, incur, assume or guarantee) Indebtedness (including capitalized lease obligations) or under which it has imposed (or may impose) a Lien on any of its assets, tangible or intangible;
(vi) all material Leasesany agreement for the disposition of any significant portion of the assets or business of the Company or any Subsidiary (other than sales of products in the Ordinary Course of Business) or any agreement for the acquisition of the assets or business of any other Person (other than purchases of inventory or components in the Ordinary Course of Business);
(vii) a Contract any agreement concerning noncompetition or non-solicitation (A) pursuant to which a distributor (including any affiliate of Seller) has the right to distribute or resell products other than nonsolicitation agreements with end customers of the Business and (B) involving aggregate payments in excess of $100,000 Company or any Subsidiary or Company Employees or contractors set forth in the twelve (12)-month period ended January 31Company’s or the applicable Subsidiary’s standard terms and conditions of sale or standard form of employment or consulting agreement, 2023copies of which have previously been made available the Buyer);
(viii) any Contract that is a mortgage, indenture, guaranty, financial, loan or credit agreement, security employment agreement or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, consulting agreement other than Permitted Liensoffer letters for at will employees without severance or proprietary information agreements materially similar to the Company’s existing form, a copy of which has been made available to Buyer;
(ix) any Contract that is a hedgingagreement providing for severance, futuresretention, options change in control payments, or other derivative Contracttransaction-based bonuses or incentives;
(x) any Contract for the acquisition of settlement agreement or settlement-related agreement (including any Person or agreement in connection with which any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereofemployment-related claim is settled);
(xi) any royalty agreement involving any current or similar Contract based on former officer, director or stockholder of the revenues Company or profits of any Transferred SubsidiaryAffiliate thereof;
(xii) any Contract agreement under which the consequences of indemnification a default or guaranty termination would reasonably be expected to any Person not made in the ordinary course of businesshave a Company Material Adverse Effect;
(xiii) any Contract with agency, distributor, sales representative, franchise or similar agreements to which the Company or any Governmental EntitySubsidiary is a party or by which the Company or any Subsidiary is bound;
(xiv) any Contract relating agreement which contains any provisions requiring the Company or any Subsidiary to indemnify any other party (excluding indemnities contained in agreements for the acquisition or disposition of any business or material portion of the assets of any Person (whether by mergerpurchase, sale or license of stock, sale products or services entered into in the Ordinary Course of assets or otherwiseBusiness);
(xv) any Contract under which agreement that would reasonably be expected to have the Transferred effect of prohibiting or impairing the conduct of the business of the Company or any of the Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligationas currently conducted;
(xvi) any Contract (A) containing covenants agreement that restrict would entitle any third party to receive a license or limit in any material respect the ability of any Transferred Subsidiary other right to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services Intellectual Property of the Business to Buyer or any Person or imposing obligations to exclusively purchase or acquire any products or services from any Personof the Buyer’s Affiliates (excluding the Company and the Subsidiaries) following the Closing;
(xvii) any Contract that contains a licenseagreement relating to the research, sublicense development, clinical trial, manufacturing, distribution, supply, marketing or other provision under co-promotion of any products, product candidates or devices in development by or which has been or which is being researched, developed, marketed, distributed, supported, sold or licensed out, in each case by or on behalf of the Company or any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense agreement between or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than among (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, Company and/or any Subsidiary and (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose Company Joint Venture and/or any other equityholder of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposesCompany Joint Venture;
(xix) a Contract that is required any agreement that, following the Closing, would bind or purport to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) bind the Buyer or any of Regulation S-K under its Affiliates (excluding the Securities Act;Company and the Subsidiaries); and
(xx) any Contract between other agreement (or group of related agreements) involving, pursuant to the terms thereof, payments to or by the Company in amounts of more than $25,000 in any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, 12-month period and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary in excess of $1,500,000 not entered into in the aggregate, whether or not made in the ordinary course Ordinary Course of business consistent with past practices, which has material ongoing obligations following the date hereof;
(xxii) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with respect to actions in such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involves: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable LawsBusiness.
(b) All Contracts set forth or required The Company has made available to be set forth in Section 3.12 the Buyer a complete and accurate copy of each Contract (as amended to date). With respect to each Contract: (i) the Disclosure Schedule (includingContract is legal, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding and enforceable and in full force and effect, subjecteffect against the Company or the Subsidiary that is the party thereto, as to enforcement, to the Enforceability Exceptions. The true, correct and complete copies of all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default under the Business Contractsapplicable, and, to the Knowledge of SellerCompany’s Knowledge, no against each other party to any Business thereto; (ii) the Contract is or, since July 31, 2021, has been (and will continue to be subject to ongoing obligations legal, valid, binding and enforceable and in connection therewith) in material breach full force and effect against the Company or default thereunder. No event has occurredthe Subsidiary that is the party thereto, as applicable, and, to the Knowledge of SellerCompany’s Knowledge, no circumstance or condition exists, that (against each other party thereto immediately following the Closing in accordance with or without notice or lapse of time) will or would reasonably be expected the terms thereof as in effect immediately prior to (i) result in a material violation or breach of any of the provisions of any Business ContractClosing; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; and (iii) give neither the Company, any Person Subsidiary nor, to the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member Knowledge of the Seller Group (including the Transferred Subsidiaries) nor Company, any of its affiliates other party, is in breach or violation of, or default under, any such Contract, and no event has received any written notice occurred, is pending or, to the Knowledge of Sellerthe Company, other communication regarding any actual or possible violation or breach ofis threatened, which, after the giving of notice, with lapse of time, or material otherwise, would constitute any such breach or default underby the Company, any Business Contract. No member Subsidiary or, to the Knowledge of the Seller Group Company, any other party under such Contract.
(including c) Neither the Transferred Subsidiaries) Company nor any Subsidiary is a party to any oral contract, agreement or other arrangement which, if reduced to written form, would be required to be listed in Section 3.13(a) of its affiliates the Company Disclosure Schedule under the terms of Section 3.13(a). Neither the Company nor any Subsidiary is a party to any written or oral arrangement (i) to perform services or sell products which is expected to be performed at, or to result in, a loss or (ii) for which the customer has waived any of their material rights under any Business Contractalready been billed or paid that have not been fully accounted for on the Most Recent Balance Sheet.
Appears in 1 contract
Contracts. (aSchedule 3(p) Section 3.12(a) of the Disclosure Schedule sets forth, as of the date hereof, each Transferred Contract of lists the following typescontracts and other agreements to which Target is a party:
(i) a collective bargaining any agreement (or other Contract with group of related agreements) for the lease of personal property to or from any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”)Person providing for lease payments in excess of $25,000 per annum;
(ii) any agreement (or group of related agreements) for the purchase or sale of raw materials, commodities, supplies, products, or other personal property, or for the furnishing or receipt of services, the performance of which will extend over a Contract with any Top Customer (as defined below), including purchase orders covering a payment amount period of more than one year or which specifies consideration in excess of $2,000,000 or more, other than (A) in the ordinary course of business, (B) non-disclosure agreements, (C) sales acknowledgments, (D) purchase orders covering a payment amount of under $2,000,000 or (E) statements of work that have been satisfied in full10,000;
(iii) any agreement concerning a Contract with any Top Vendor (as defined below), including a purchase partnership or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in fulljoint venture;
(iv) a Contract any agreement (or group of related agreements) under which any Transferred Subsidiary it has borrowed any money fromcreated, incurred, assumed, or issued guaranteed any noteindebtedness for borrowed money, bondor any capitalized lease obligation, debenture in excess of $10,000 or other evidence under which it has imposed a Security Interest on any of indebtedness of borrowed money toits assets, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to tangible or as of the Closing)intangible;
(v) a Contract any material agreement concerning the establishment, control, maintenance confidentiality or operation of a partnership, joint venture or other similar agreement or arrangement, in each case that is material to the Businessnoncompetition;
(vi) all any material Leasesagreement between Target and its Affiliates;
(vii) a Contract (A) pursuant to which a distributor (including any affiliate profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or other material plan or arrangement for the benefit of Seller) has the right to distribute its current or resell products of the Business former directors, officers, and (B) involving aggregate payments in excess of $100,000 in the twelve (12)-month period ended January 31, 2023employees;
(viii) any Contract that is a mortgage, indenture, guaranty, financial, loan or credit collective bargaining agreement, security agreement or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted Liens;
(ix) any Contract that is agreement for the employment of any individual on a hedging, futures, options or other derivative Contractfull-time basis;
(x) any Contract for agreement under which it has advanced or loaned any amount to any of its directors, officers, and employees outside the acquisition Ordinary Course of any Person or any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereofBusiness;
(xi) any royalty agreement under which the consequences of a default or similar Contract based termination would have a material adverse effect on the revenues business, financial condition, operations or profits results of any Transferred Subsidiary;operations of Target; or
(xii) any Contract other agreement (or group of indemnification or guaranty to any Person not made in the ordinary course of business;
(xiiirelated agreements) any Contract with any Governmental Entity;
(xiv) any Contract relating to the acquisition or disposition of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);
(xv) any Contract under which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary specifies consideration in excess of $1,500,000 10,000. Target has delivered to Parent or its counsel a complete copy of each written agreement listed in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof;
(xxii) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiiiSchedule 3(p) (Aas amended to date) any Contract with an Employee that provides for annual base compensation and a written summary setting forth the material terms and conditions of each oral agreement referred to in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with Schedule 3(p). With respect to actions in each such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involvesagreement: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary is valid and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Laws.
(b) All Contracts set forth or required to be set forth in Section 3.12 of the Disclosure Schedule (including, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding on Target and in full force and effecteffect in all material respects; (B) Target's Knowledge, subject, as to enforcement, to the Enforceability Exceptions. The true, correct and complete copies of all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that no party is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default under the Business Contractsdefault, and, to the Knowledge of Seller, no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, that (occurred which with or without notice or lapse of time) will or time would reasonably be expected to (i) result in constitute a material violation breach or breach default, or permit termination, modification, or acceleration, under the agreement; and (C) no party has provided Target with notice of repudiation of any material provision of the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, to the Knowledge of Seller, other communication regarding any actual or possible violation or breach of, or material default under, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights under any Business Contractagreement.
Appears in 1 contract
Sources: Merger Agreement (Barpoint Com Inc)
Contracts. (a) Section 3.12(a) 4.16 of the Disclosure Schedule sets forthlists the following contracts and other agreements to which SkateNation or any of its Subsidiaries is a party (together with the Ground Leases and the Space Leases, as the "SkateNation Contracts"):
(a) any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for lease payments in excess of $50,000 per annum;
(b) any agreement (or group of related agreements) for the purchase or sale of raw materials, commodities, supplies, products, or other personal property, or for the furnishing or receipt of services, the performance of which will extend over a period of more than one year, or involve consideration in excess of $100,000;
(c) any agreement concerning a partnership or joint venture;
(d) any agreement (or group of related agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, in excess of $50,000 or under which it has imposed a Security Interest on any of its Assets;
(e) any agreement concerning confidentiality or noncompetition, or which otherwise restricts in any material manner the free use by SkateNation and its Subsidiaries of its Assets or data made available to it in the Ordinary Course of Business;
(f) any agreement with the Seller or any Affiliates thereof (other than SkateNation and its Subsidiaries);
(g) any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or other material plan or arrangement for the benefit of the date hereofcurrent or former directors, each Transferred Contract officers, and/or employees of the following types:SkateNation or any of its Subsidiaries;
(h) any collective bargaining agreement;
(i) any written agreement for the employment of any individual on a collective bargaining agreement full-time, part-time, consulting, or other Contract with any labor organization, trade union, works council basis providing annual compensation in excess of $25,000 or similar bargaining representative (a “Collective Agreement”)providing severance benefits;
(iij) a Contract with any Top Customer (as defined below)agreement under which it has advanced or loaned any amount to any of its directors, including purchase orders covering a payment amount of $2,000,000 or moreofficers, other than (A) in the ordinary course of business, (B) non-disclosure agreements, (C) sales acknowledgments, (D) purchase orders covering a payment amount of under $2,000,000 or (E) statements of work that have been satisfied in fulland/or employees;
(iiik) any agreement under which the consequences of a Contract with any Top Vendor (as defined below), including default or termination could have a purchase or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in fullMaterial Adverse Effect;
(ivl) a Contract under which any Transferred Subsidiary has borrowed agreement with any money from, or issued tenant of any note, bond, debenture or other evidence space at the Property that involves annual consideration in excess of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to or as of the Closing)$10,000;
(vm) a Contract concerning any other agreement (or group of related agreements) the establishment, control, maintenance performance of which involves consideration in excess of $100,000 or operation of a partnership, joint venture or other similar agreement or arrangement, in each case that is material to the Business;
(vi) all material Leases;
(vii) a Contract (A) pursuant to which a distributor (including any affiliate business of Seller) has the right to distribute or resell products of the Business and (B) involving aggregate payments in excess of $100,000 in the twelve (12)-month period ended January 31, 2023;
(viii) any Contract that is a mortgage, indenture, guaranty, financial, loan or credit agreement, security agreement or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted Liens;
(ix) any Contract that is a hedging, futures, options or other derivative Contract;
(x) any Contract for the acquisition of any Person or any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereof;
(xi) any royalty or similar Contract based on the revenues or profits of any Transferred Subsidiary;
(xii) any Contract of indemnification or guaranty to any Person not made in the ordinary course of business;
(xiii) any Contract with any Governmental Entity;
(xiv) any Contract relating to the acquisition or disposition of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);
(xv) any Contract under which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group SkateNation or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which . The Seller has material ongoing obligations following the date hereof;
(xxii) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser the Buyer a correct and complete copy of each written agreement (Bas amended to date) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with respect to actions in such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involves: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Laws.
(b) All Contracts set forth or required to be set forth listed in Section 3.12 4.16 of the Disclosure Schedule (including, for the avoidance of doubt, any Contract that would have been Schedule. With respect to each agreement required to be identified in Section 3.12 4.16 of the Disclosure Schedule had Section 3.12 of Schedule: (w) the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding and agreement is in full force and effecteffect and, subjectthe Seller's Knowledge, as is the legal, valid and binding obligation of the parties thereto other than SkateNation or any of its Subsidiaries (the "Other Parties") and enforceable against the Other Parties in accordance with its terms, subject to enforcementthe Remedies Exception; (x) neither SkateNation nor any of its Subsidiaries nor, to the Enforceability Exceptions. The trueSeller's Knowledge, correct and complete copies of all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) any of the Disclosure Schedule provides an accurate Other Parties, is in breach, violation or default, and complete description of the material terms of each Business Contract that is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default under the Business Contracts, and, to the Knowledge of Seller's Knowledge, no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, that (occurred which with or without notice or lapse of time) will time or both would reasonably be expected to (i) result in constitute a material breach, violation or breach default by SkateNation or any of its Subsidiaries, or permit termination, modification, or acceleration by the Other Parties, under the agreement; (y) neither SkateNation or any of its Subsidiaries nor, to the Seller's Knowledge, any of the Other Parties, has repudiated any provision of the agreement and (z) no consent is required of any of the provisions Other Parties by virtue of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity execution, delivery or performance of any Business Contract; this Agreement, and the transactions contemplated by this Agreement will not result in the termination or (iv) give any Person modification of the right to cancel, terminate or materially modify or declare void any Business Contractagreement. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, representations or warranties are made in this Section 4.16 with respect to the Knowledge of Seller, other communication regarding any actual Ground Leases or possible violation or breach of, or material default under, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights under any Business ContractSpace Leases.
Appears in 1 contract
Contracts. (a) Section 3.12(a4(o) of the Disclosure Schedule sets forth, as lists the following contracts and other agreements to which any of the date hereof, each Transferred Contract of the following typesTarget and its Subsidiaries is a party:
(i) a collective bargaining any agreement (or other Contract with group of related agreements) for the lease of personal property to or from any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”)Person providing for lease payments in excess of $25,000 per annum;
(ii) any agreement (or group of related agreements) for the purchase or sale of raw materials, commodities, supplies, products, or other personal property, or for the furnishing or receipt of services, the performance of which will extend over a Contract with period of more than one year, result in a loss to any Top Customer (as defined below)of the Target and its Subsidiaries, including purchase orders covering a payment amount or involve consideration in excess of $2,000,000 or more, other than (A) in the ordinary course of business, (B) non-disclosure agreements, (C) sales acknowledgments, (D) purchase orders covering a payment amount of under $2,000,000 or (E) statements of work that have been satisfied in full25,000;
(iii) any agreement concerning a Contract with any Top Vendor (as defined below), including a purchase partnership or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in fulljoint venture;
(iv) a Contract any agreement (or group of related agreements) under which any Transferred Subsidiary it has borrowed any money fromcreated, incurred, assumed, or issued guaranteed any noteindebtedness for borrowed money, bondor any capitalized lease obligation, debenture in excess of $25,000 or other evidence under which it has imposed a Security Interest on any of indebtedness of borrowed money toits assets, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to tangible or as of the Closing)intangible;
(v) a Contract any agreement concerning the establishment, control, maintenance confidentiality or operation of a partnership, joint venture or other similar agreement or arrangement, in each case that is material to the Businessnoncompetition;
(vi) all material Leasesany agreement with any of the Sellers and their Affiliates (other than the Target and its Subsidiaries);
(vii) a Contract (A) pursuant to which a distributor (including any affiliate profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or other plan or arrangement for the benefit of Seller) has the right to distribute its current or resell products of the Business former directors, officers, and (B) involving aggregate payments in excess of $100,000 in the twelve (12)-month period ended January 31, 2023employees;
(viii) any Contract that is a mortgage, indenture, guaranty, financial, loan or credit collective bargaining agreement, security agreement or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted Liens;
(ix) any Contract that is agreement for the employment of any individual on a hedgingfull-time, futurespart-time, options consulting, or other derivative Contractbasis providing annual compensation in excess of $25,000 or providing severance benefits;
(x) any Contract for agreement under which it has advanced or loaned any amount to any of its directors, officers, and employees outside the acquisition Ordinary Course of any Person or any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereofBusiness;
(xi) any royalty agreement under which the consequences of a default or similar Contract based termination could have an adverse effect on the revenues business, financial condition, operations, results of operations, or profits future prospects of any Transferred Subsidiary;of the Target and its Subsidiaries; or
(xii) any Contract other agreement (or group of indemnification or guaranty to any Person not made in related agreements) the ordinary course performance of business;
(xiii) any Contract with any Governmental Entity;
(xiv) any Contract relating to the acquisition or disposition of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);
(xv) any Contract under which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary involves consideration in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof;
(xxii) any Contract relating 25,000. The Sellers have delivered to the settlement Buyer a correct and complete copy of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiiieach written agreement listed in Section 4(o) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available Disclosure Schedule (as amended to Purchaser date) and (Ba written summary setting forth the terms and conditions of each oral agreement referred to in Section 4(o) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with Disclosure Schedule. With respect to actions in each such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involvesagreement: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individuallyagreement is legal, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Laws.
(b) All Contracts set forth or required to be set forth in Section 3.12 of the Disclosure Schedule (including, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding binding, enforceable, and in full force and effect, subject, as to enforcement, to ; (B) the Enforceability Exceptions. The true, correct and complete copies of all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and agreement will continue to be subject to ongoing obligations legal, valid, binding, enforceable, and in connection therewithfull force and effect on identical terms following the consummation of the transactions contemplated hereby; (C) no party is in material breach or default under the Business Contractsdefault, and, to the Knowledge of Seller, and no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, that (occurred which with or without notice or lapse of timetime would constitute a breach or default, or permit termination, modification, or acceleration, under the agreement; and (D) will or would reasonably be expected to (i) result in a material violation or breach of no party has repudiated any provision of the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, to the Knowledge of Seller, other communication regarding any actual or possible violation or breach of, or material default under, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights under any Business Contractagreement.
Appears in 1 contract
Contracts. Section 2.18 of the FIBER-SEAL Disclosure Schedule lists the following written arrangements (including without limitation written agreements) to which FIBER-SEAL is a party:
(a) Section 3.12(aany written arrangement (or group of related written arrangements) for the lease of the Disclosure Schedule sets forth, as of the date hereof, each Transferred Contract of the following types:
(i) a collective bargaining agreement personal property from or other Contract with any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”);
(ii) a Contract with any Top Customer (as defined below), including purchase orders covering a payment amount of $2,000,000 or more, other than (A) in the ordinary course of business, (B) non-disclosure agreements, (C) sales acknowledgments, (D) purchase orders covering a payment amount of under $2,000,000 or (E) statements of work that have been satisfied in full;
(iii) a Contract with any Top Vendor (as defined below), including a purchase or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in full;
(iv) a Contract under which any Transferred Subsidiary has borrowed any money from, or issued any note, bond, debenture or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to or as of the Closing);
(v) a Contract concerning the establishment, control, maintenance or operation of a partnership, joint venture or other similar agreement or arrangement, in each case that is material to the Business;
(vi) all material Leases;
(vii) a Contract (A) pursuant to which a distributor (including any affiliate of Seller) has the right to distribute or resell products of the Business and (B) involving aggregate third parties providing for lease payments in excess of $100,000 in the twelve (12)-month period ended January 31, 20235,000 per annum;
(viiib) any Contract that is a mortgagewritten arrangement (or group of related written arrangements) for the purchase or sale of raw materials, indenturecommodities, guarantysupplies, financial, loan or credit agreement, security agreement or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted Liens;
(ix) any Contract that is a hedging, futures, options products or other derivative Contract;
(x) any Contract personal property or for the acquisition furnishing or receipt of any Person services (i) which calls for performance over a period of more than one year, (ii) which involves more than the sum of $5,000, or any business unit thereof or the disposition of any assets, other than (iii) in which FIBER-SEAL (A) Contracts for acquisitions or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereof;
(xi) any royalty or similar Contract based on the revenues or profits of any Transferred Subsidiary;
(xii) any Contract of indemnification or guaranty to any Person not made in the ordinary course of business;
(xiii) any Contract with any Governmental Entity;
(xiv) any Contract relating to the acquisition or disposition of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);
(xv) any Contract under which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is has granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials)manufacturing rights, (B) for non-specific Intellectual Property Rights has granted under a Transferred Subsidiary’s standard forms for employees and contractors"most favored nation" pricing provisions or exclusive marketing or distribution rights relating to any products or territory, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses has agreed to purchase a minimum quantity of third party Trademarks solely for the inclusion of such Trademarks in a customer list goods or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiaryservices, or (D) nonhas agreed to purchase goods or services exclusively from a certain party;
(c) any written arrangement establishing a partnership or joint venture;
(d) any written arrangement (or group of related written arrangements) under which it has created, incurred, assumed, or guaranteed (or may create, incur, assume, or guarantee) indebtedness (including capitalized lease obligations) involving more than $15,000 or under which it has imposed (or may impose) a Security Interest on any of its assets, tangible or intangible;
(e) any written arrangement concerning confidentiality or noncompetition;
(f) any written arrangement involving either PARTNER or any of their Affiliates;
(g) any written arrangement under which the consequences of a default or termination could have a Material Adverse Effect on the assets, business, financial condition, results of operations or future prospects of FIBER-exclusive licenses to Trademarks SEAL, taken as a whole; and
(h) any other written arrangement (or group of related written arrangements) currently in existence or which any provisions thereof are currently binding on FIBER-SEAL either (x) involving more than $15,000 or (y) not entered into in the ordinary course Ordinary Course of business for inclusion Business. FIBER-SEAL has delivered to HSOA a correct and complete copy of such Trademark each written arrangement (as amended to date) listed in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member Section 2.18 of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof;
(xxii) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with FIBER-SEAL Disclosure Schedule. With respect to actions in such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involveseach written arrangement so listed: (Ai) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individuallywritten arrangement is legal, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Laws.
(b) All Contracts set forth or required to be set forth in Section 3.12 of the Disclosure Schedule (including, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding and enforceable and in full force and effect, subject, as to enforcement, to ; (ii) the Enforceability Exceptions. The true, correct and complete copies of all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and arrangement will continue to be legal, valid, binding and enforceable and in full force and effect on and immediately following the Closing Date in accordance with the terms thereof as in effect prior to the Closing Date, subject to ongoing obligations obtaining any consents required by such arrangement that are listed on Section 2.6 of the FIBER-SEAL Disclosure Schedule; and (iii) no party is in connection therewith) in material breach or default under the Business Contractsdefault, and, to the Knowledge of Seller, and no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, that (occurred which with or without notice or lapse of time) will time would constitute a breach or default or permit termination, modification, or acceleration, under the written arrangement. FIBER-SEAL is not party to any oral contract, agreement or other arrangement that, if reduced to written form, would reasonably be expected required to (i) result be listed in a material violation or breach of any Section 2.18 of the provisions FIBER-SEAL Disclosure Schedule under the terms of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, to the Knowledge of Seller, other communication regarding any actual or possible violation or breach of, or material default under, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights under any Business Contractthis Section 2.18.
Appears in 1 contract
Sources: Partnership Interest Purchase Agreement (Home Solutions of America Inc)
Contracts. (a) Section 3.12(a) 2.15 of the Disclosure Schedule sets forth, as of lists the date hereof, each Transferred Contract of --------- following written arrangements (including without limitation written agreements) to which the following typesCompany is a party:
(ia) a collective bargaining agreement any written arrangement (or other Contract with any labor organization, trade union, works council group of related written arrangements) for the lease of personal property from or similar bargaining representative (a “Collective Agreement”);
(ii) a Contract with any Top Customer (as defined below), including purchase orders covering a payment amount of $2,000,000 or more, other than (A) in the ordinary course of business, (B) non-disclosure agreements, (C) sales acknowledgments, (D) purchase orders covering a payment amount of under $2,000,000 or (E) statements of work that have been satisfied in full;
(iii) a Contract with any Top Vendor (as defined below), including a purchase or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in full;
(iv) a Contract under which any Transferred Subsidiary has borrowed any money from, or issued any note, bond, debenture or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to or as of the Closing);
(v) a Contract concerning the establishment, control, maintenance or operation of a partnership, joint venture or other similar agreement or arrangement, in each case that is material to the Business;
(vi) all material Leases;
(vii) a Contract (A) pursuant to which a distributor (including any affiliate of Seller) has the right to distribute or resell products of the Business and (B) involving third parties providing for aggregate lease payments in excess of $100,000 in the twelve (12)-month period ended January 31, 202330,000 per annum;
(viiib) any Contract that is written arrangement (or group of related written arrangements) for the purchase or sale of raw materials, commodities, supplies, products or other personal property or for the furnishing or receipt of services (i) which calls for performance over a mortgageperiod of more than one year, indenture(ii) which involves more than the sum of $20,000, guarantyor (iii) in which the Company has granted manufacturing rights, financial, loan "most favored nation" pricing provisions or credit agreement, security agreement marketing or is distribution rights relating to any products or territory or has agreed to purchase a Contract minimum quantity of goods or services or has agreed to which any Transferred Subsidiary is purchase goods or services exclusively from a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted Lienscertain party;
(ixc) any Contract that is written arrangement establishing a hedging, futures, options partnership or other derivative Contractjoint venture;
(xd) any Contract for the acquisition written arrangement (or group of related written arrangements) under which it has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) or under which it has imposed (or may impose) a Security Interest on any Person or any business unit thereof or the disposition of any its assets, other than (A) Contracts for acquisitions tangible or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereofintangible;
(xie) any royalty written arrangement concerning confidentiality or similar Contract based on the revenues or profits of any Transferred Subsidiarynoncompetition;
(xiif) any Contract written arrangement involving any of indemnification the Holders or guaranty to any Person not made their affiliates ("Affiliates"), as defined in Rule 12b-2 under the ordinary course Securities ---------- Exchange Act of business;1934, as amended (the "Exchange Act"); ------------
(xiiig) any Contract with any Governmental Entity;
(xiv) any Contract relating to the acquisition or disposition of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);
(xv) any Contract written arrangement under which the Transferred Subsidiaries consequences of a default or termination could have an obligation with respect to an “earn out,” contingent purchase pricea material adverse effect on the business, properties, operations, financial condition, assets or similar contingent payment obligation;liabilities of the Company; and
(xvih) any Contract other written arrangement (Aor group of related written arrangements) containing covenants that restrict either involving more than $20,000 or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks not entered into in the ordinary course Ordinary Course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which Business. The Company has material ongoing obligations following the date hereof;
(xxii) any Contract relating delivered to the settlement Buyer a correct and complete copy of any Proceeding pursuant each written arrangement (as amended to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiiidate) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with respect to actions in such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involves: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Laws.
(b) All Contracts set forth or required to be set forth listed in Section 3.12 2.15 of the Disclosure Schedule Schedule. With respect to each written arrangement so listed: (includingi) the written arrangement is legal, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding and enforceable and in full force and effect in accordance with its terms, including applicable law; (ii) the written arrangement will continue to be legal, valid, binding and enforceable and in full force and effect, subjectin accordance with its terms, including applicable law, immediately following the Closing in accordance with the terms thereof as to enforcement, in effect prior to the Enforceability ExceptionsClosing; and (iii) no party is in breach or default, and no event has occurred which with notice or lapse of time or both would constitute a breach or default or permit termination, modification, or acceleration, under the written arrangement. The trueCompany is not a party to any oral contract, correct and complete copies of all agreement or other arrangement which, if reduced to written Business Contracts (including all amendmentsform, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent would be required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). be listed in Section 3.12(b) 2.15 of the Disclosure Schedule provides an accurate and complete description of under the material terms of each Business Contract that is not in written formthis Section 2.15.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default under the Business Contracts, and, to the Knowledge of Seller, no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, that (with or without notice or lapse of time) will or would reasonably be expected to (i) result in a material violation or breach of any of the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, to the Knowledge of Seller, other communication regarding any actual or possible violation or breach of, or material default under, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights under any Business Contract.
Appears in 1 contract
Contracts. Section 5.17 of the Novo Disclosure Schedule lists the following contracts, agreements, commitments and other arrangements to which Novo is a party or by which Novo or any of its assets is bound:
(a) Section 3.12(aany agreement (or group of related agreements) for the lease of personal property to or from any Person or license of any software or Intellectual Property which involves the Disclosure Schedule sets forthpayment by or to Novo of more than $10,000 per year;
(b) any agreement (or group of related agreements) for the purchase or sale of raw materials, as commodities, supplies, products, or other personal property, or for the furnishing or receipt of services, the date hereofperformance of which will extend over a period of more than one year or involve consideration in excess of $10,000;
(c) any agreement for the purchase of supplies, each Transferred Contract components, products or services from single source suppliers, custom manufacturers or subcontractors which involves the payment by Novo of more than $10,000 per year;
(d) any agreement concerning a partnership or joint venture;
(e) any agreement (or group of related agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money or any capitalized lease obligation in excess of $10,000 or under which a Security Interest has been imposed on any of its assets, tangible or intangible;
(f) any agreement concerning noncompetition or restraint of trade or any agreement on currently active projects which involves confidentiality;
(g) any agreement with any Novo shareholder or any of such shareholder's Affiliates (other than Novo) or with any Affiliate of Novo;
(h) any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or other plan or arrangement for the following types:benefit of its current or former directors, officers or employees;
(i) a any collective bargaining agreement or other Contract with any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”)agreement;
(iij) any agreement for the employment of any individual on a Contract with any Top Customer (as defined below)full-time, including purchase orders covering a payment amount of $2,000,000 part-time, consulting, or more, other than (A) in the ordinary course of business, (B) non-disclosure agreements, (C) sales acknowledgments, (D) purchase orders covering a payment amount of under $2,000,000 or (E) statements of work that have been satisfied in fullbasis;
(iiik) a Contract with any Top Vendor (as defined below)agreement under which it has advanced or loaned any amount to any of its directors, including a purchase or service order covering a payment amount of $1,000,000 or moreofficers, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in fulland employees;
(ivl) a Contract under any agreement pursuant to which Novo is obligated to provide services, maintenance, support or training which involves payments to Novo of more than $50,000 per year;
(m) any Transferred Subsidiary has borrowed any money fromstandard form agreement used by Novo, or issued any noteincluding, bond, debenture or other evidence of indebtedness of borrowed money but not limited to, any personpurchase order, including any guarantee relating thereto (other than any Contract that will be terminated prior to statement of standard terms and conditions of sale, or as of the Closing);employment offer letter; and
(vn) a Contract concerning any other agreement (or group of related agreements) the establishment, control, maintenance or operation performance of a partnership, joint venture or other similar agreement or arrangement, in each case that is material to the Business;
(vi) all material Leases;
(vii) a Contract (A) pursuant to which a distributor (including any affiliate of Seller) has the right to distribute or resell products of the Business and (B) involving aggregate payments involves consideration in excess of $100,000 in the twelve (12)-month period ended January 31, 2023;
(viii) any Contract that 10,000 or which is a mortgage, indenture, guaranty, financial, loan or credit agreement, security agreement or is a Contract expected to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted Liens;
(ix) any Contract that is a hedging, futures, options or other derivative Contract;
(x) any Contract continue for the acquisition of any Person or any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three six (36) years prior to months from the date hereof;
(xi) any royalty or similar Contract based on the revenues or profits . Novo has delivered to Aspec a correct and complete copy of any Transferred Subsidiary;
(xii) any Contract of indemnification or guaranty to any Person not made each written agreement listed in the ordinary course of business;
(xiii) any Contract with any Governmental Entity;
(xiv) any Contract relating to the acquisition or disposition of any business or material portion Section 5.17 of the assets Novo Disclosure Schedule (as amended to date) and a written summary setting forth the terms and conditions of any Person (whether by merger, sale each oral agreement referred to in Section 5.17 of stock, sale of assets or otherwise);
(xv) any Contract under which the Transferred Subsidiaries have an obligation with Novo Disclosure Schedule. With respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of each such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof;
(xxii) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with respect to actions in such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involvesagreement: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individuallyagreement is legal, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Laws.
(b) All Contracts set forth or required to be set forth in Section 3.12 of the Disclosure Schedule (including, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding binding, enforceable, and in full force and effect, subject, as to enforcement, to the Enforceability Exceptions. The true, correct and complete copies of effect in all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default under the Business Contracts, respects against Novo and, to the Knowledge knowledge of SellerNovo, the other parties thereto; (B) Novo is not and, to the knowledge of Novo, no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No default, and no event has occurred, which with notice or lapse of time would constitute a breach or default, or permit termination, modification, or acceleration, under the agreement; (C) Novo has not and, to the Knowledge knowledge of SellerNovo, no circumstance or condition exists, other party has repudiated any provision of the agreement; and (D) Novo does not have any reason to believe that (the service called for thereunder cannot be supplied in accordance with or its terms and without notice or lapse of time) will or would reasonably be expected to (i) result resulting in a material violation or breach of loss to any of the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, to the Knowledge of Seller, other communication regarding any actual or possible violation or breach of, or material default under, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights under any Business ContractNovo.
Appears in 1 contract
Contracts. (a) Section 3.12(a) of the Disclosure Schedule sets forth, as of the date hereof, each Transferred Contract of 3.16 hereto lists the following typescontracts, agreements and commitments, whether written or oral, to which Seller is a party and that relate to the Business:
(i) a collective bargaining any agreement (or other Contract with group of related agreements) for the lease of personal property to or from any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”)Person providing for lease payments in excess of $50,000 per annum;
(ii) any agreement (or group of related agreements) for the purchase or sale of raw materials, commodities, supplies, products, or other personal property, or for the furnishing or receipt of services, the performance of which will extend over a Contract with any Top Customer (as defined below)period of more than one year, including purchase orders covering result in a payment amount loss to Seller, provide for discounts or allowances, or involve consideration in excess of $2,000,000 or more, other than (A) in the ordinary course of business, (B) non-disclosure agreements, (C) sales acknowledgments, (D) purchase orders covering a payment amount of under $2,000,000 or (E) statements of work that have been satisfied in full50,000;
(iii) any agreement concerning a Contract with any Top Vendor (as defined below), including a purchase partnership or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in fulljoint venture;
(iv) a Contract under which any Transferred Subsidiary has borrowed any money from, grant of right of first refusal or issued any note, bond, debenture or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior option to or as of purchase the Closing)Purchased Assets;
(v) any agreement (or group of related agreements) under which Seller has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, in excess of $50,000 or under which it has imposed a Contract Lien on any of its assets, tangible or intangible;
(vi) any agreement concerning confidentiality or noncompetition;
(vii) any agreement with any officer, director, shareholder or employee (other than the establishmentOrdinary Course of Business) of Seller or any Affiliate of such Persons;
(viii) any profit sharing, controlstock option, maintenance or operation of a partnershipstock purchase, joint venture stock appreciation, deferred compensation, severance, or other similar plan or arrangement for the benefit of its current or former directors, officers, and employees;
(ix) any agreement for the employment or other engagement of any individual on a full-time, part-time, consulting, or other basis providing annual compensation in excess of $50,000 or providing severance benefits;
(x) any sales representative or agency agreement, brokers agreement or arrangement, in each case that is material dealer agreement or other agreement relating to the sale or distribution of products or services of the Business to or by other Persons;
(xi) any power or attorney with respect to the Business;
(vi) all material Leases;
(vii) a Contract (A) pursuant to which a distributor (including any affiliate of Seller) has the right to distribute or resell products of the Business and (B) involving aggregate payments in excess of $100,000 in the twelve (12)-month period ended January 31, 2023;
(viii) any Contract that is a mortgage, indenture, guaranty, financial, loan or credit agreement, security agreement or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted Liens;
(ix) any Contract that is a hedging, futures, options or other derivative Contract;
(x) any Contract for the acquisition of any Person or any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereof;
(xi) any royalty or similar Contract based on the revenues or profits of any Transferred Subsidiary;
(xii) any Contract agreement under which the consequences of indemnification a default or guaranty to any Person not made in the ordinary course of businesstermination could have a Material Adverse Effect;
(xiii) any Contract agreement with any a Governmental EntityAuthority;
(xiv) any Contract relating to the acquisition agreement under which Seller has advanced or disposition of any business or material portion of the assets of loaned any Person (whether by merger, sale of stock, sale of assets or otherwise);amounts in the aggregate exceeding $50,000; or
(xv) any Contract under other agreement (or group of related agreements) the performance of which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary involves consideration in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof;
(xxii) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with respect to actions in such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involves: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Laws50,000.
(b) All Contracts set Seller has delivered to Buyer a true and complete copy of each written agreement (as amended to date) listed on Schedule 3.16 and a written summary setting forth or required the terms and conditions of each oral agreement referred to be set forth in Section 3.12 of on Schedule 3.16. With respect to each such agreement: (i) the Disclosure Schedule (includingagreement is legal, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding binding, enforceable, and in full force and effect; (ii) Seller has fulfilled, subjector taken all action necessary to enable it to fulfill when due, as to enforcement, to all of its obligations under the Enforceability Exceptions. The true, correct and complete copies of all written Business Contracts agreement; (including all amendments, supplements, modifications, annexes or schedules theretoiii) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and agreement will continue to be subject to ongoing obligations legal, valid, binding, enforceable, and in connection therewithfull force and effect on identical terms following the consummation of the transactions contemplated hereby; (iv) no party is in material breach or default under the Business Contractsdefault, and, to the Knowledge of Seller, no other party to any Business Contract is or, since July 31, 2021, or has been (and continue to be subject to ongoing obligations in connection therewith) in material alleged a breach or default thereunder. No default, and no event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, occurred that (with or without notice or lapse of timetime would constitute a breach or default, or permit termination, modification, or acceleration, under the agreement; and (v) will or would reasonably be expected to (i) result in a material violation or breach of no party has repudiated any provision of the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, to the Knowledge of Seller, other communication regarding any actual or possible violation or breach of, or material default under, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights under any Business Contractagreement.
Appears in 1 contract
Contracts. (a) Section 3.12(a4(q) of the Seller's Disclosure Schedule sets forth, as of the date hereof, each Transferred Contract of lists the following typescontracts and other agreements to which MAMO is a party:
(i) a collective bargaining agreement or other Contract with any labor organizationAgent Agreement, trade union, works council or similar bargaining representative (a “Collective Agreement”)including the name of the agent and the term of such agreement;
(ii) a Contract with any Top Customer agreement (as defined below), including purchase orders covering a payment amount or group of related agreements) for the lease of personal property to or from any Person providing for lease payments in excess of $2,000,000 or more, other than (A) in the ordinary course of business, (B) non-disclosure agreements, (C) sales acknowledgments, (D) purchase orders covering a payment amount of under $2,000,000 or (E) statements of work that have been satisfied in full25,000 per annum;
(iii) a Contract with any Top Vendor agreement (as defined below), including a or group of related agreements) for the purchase or service order covering sale of raw materials, commodities, supplies, products, or other personal property, or for the furnishing or receipt of services, the performance of which will extend over a payment amount period of more than one year, result in a material loss to MAMO, or involve consideration in excess of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in full25,000;
(iv) any agreement concerning a Contract under which any Transferred Subsidiary has borrowed any money from, partnership or issued any note, bond, debenture or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to or as of the Closing)joint venture;
(v) a Contract concerning the establishmentany agreement (or group of related agreements) under which MAMO has created, controlincurred, maintenance assumed, or operation of a partnershipguaranteed any indebtedness for borrowed money, joint venture or other similar agreement or arrangementany capitalized lease obligation, in each case that is material to the Businessexcess of $25,000 or under which it has imposed an Encumbrance on any of its assets, tangible or intangible;
(vi) all material Leasesany agreement concerning confidentiality or noncompetition;
(vii) a Contract any agreement with the Seller or any of its Affiliates (A) pursuant to which a distributor (including any affiliate of Seller) has the right to distribute or resell products of the Business and (B) involving aggregate payments in excess of $100,000 in the twelve (12)-month period ended January 31, 2023other than MAMO);
(viii) any Contract that is a mortgageprofit sharing, indenturestock option, guarantystock purchase, financialstock appreciation, loan deferred compensation, severance, or credit agreementother material plan or arrangement for the benefit of the current or former directors, security agreement or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties officers, and employees of any Transferred Subsidiary, other than Permitted LiensMAMO;
(ix) any Contract that is a hedging, futures, options or other derivative Contractcollective bargaining agreement;
(x) any Contract agreement for the acquisition employment of any Person individual on a full-time, part-time, consulting, or any business unit thereof or the disposition of any assets, other basis other than (A) Contracts for acquisitions at-will employment or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereofproviding severance benefits;
(xi) any royalty agreement under which MAMO has advanced or similar Contract based on loaned any amount to any of the revenues or profits directors, officers, and employees of any Transferred Subsidiarythe Seller outside the Ordinary Course of Business;
(xii) any Contract agreement under which the consequences of indemnification a default or guaranty to any Person not made in termination could have a material adverse effect on the ordinary course business, financial condition, operations, results of businessoperations, or future prospects of MAMO;
(xiii) any Contract with any Governmental Entity;other agreement (or group of related agreements) the performance of which involves consideration in excess of $25,000; or
(xiv) any Contract relating other agreement which is material to the acquisition or disposition operations of any business or material portion MAMO. Seller has delivered to Buyer a correct and complete copy of each written agreement listed in Section 4(q) of Seller's Disclosure Schedule (as amended to date) and a written summary setting forth the assets terms and conditions of any Person (whether by mergereach oral agreement referred to in Section 4(q) of Seller's Disclosure Schedule. To the Knowledge of Seller, sale of stock, sale of assets or otherwise);
(xv) any Contract under which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of each such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof;
(xxii) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with respect to actions in such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involvesagreement: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individuallyagreement is legal, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Laws.
(b) All Contracts set forth or required to be set forth in Section 3.12 of the Disclosure Schedule (including, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding binding, enforceable, and in full force and effect, subject, as to enforcement, to ; (B) the Enforceability Exceptions. The true, correct and complete copies of all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). agreements that are listed on Section 3.12(b4(q) of the Seller's Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and attached hereto will continue to be subject legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated hereby, except as otherwise provided specifically in this Agreement with respect to ongoing obligations modifications thereof; (C) no party is in connection therewith) in material breach or default under the Business Contractsdefault, and, to the Knowledge of Seller, and no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, that (occurred which with or without notice or lapse of timetime would constitute a breach or default, or permit termination, modification, or acceleration, under the agreement; and (D) will or would reasonably be expected to (i) result in a material violation or breach of no party has repudiated any provision of the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, to the Knowledge of Seller, other communication regarding any actual or possible violation or breach of, or material default under, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights under any Business Contractagreement.
Appears in 1 contract
Sources: Stock Purchase Agreement (Moneygram Payment Systems Inc)
Contracts. (a) Section 3.12(a) 2.15 of the Disclosure Schedule sets forth, lists the following agreements (written or oral) to which the Seller is a party as of the date hereof, each Transferred Contract of the following typesthis Agreement:
(i) any agreement (or group of related agreements) for the lease of personal property from or to third parties providing for lease payments in excess of $25,000 per annum or having a collective bargaining agreement or other Contract with any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”)remaining term longer than twelve months;
(ii) a Contract with any Top Customer agreement (as defined below), including or group of related agreements) for the purchase orders covering a payment amount or sale of $2,000,000 products or more, other than for the furnishing or receipt of services (A) in the ordinary course which calls for performance over a period of businessmore than one year, (B) non-disclosure agreementswhich involves more than the sum of $25,000, or (C) sales acknowledgmentsin which the Seller has granted manufacturing rights, (D) “most favored nation” pricing provisions or marketing or distribution rights relating to any products or territory or has agreed to purchase orders covering a payment amount minimum quantity of under $2,000,000 goods or (E) statements of work that have been satisfied in fullservices or has agreed to purchase goods or services exclusively from a certain party;
(iii) a Contract with any Top Vendor (as defined below), including a purchase or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in full;
(iv) a Contract under which any Transferred Subsidiary has borrowed any money from, or issued any note, bond, debenture or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to or as of the Closing);
(v) a Contract agreement concerning the establishment, control, maintenance establishment or operation of a partnership, joint venture or limited liability company;
(iv) any agreement (or group of related agreements) under which it has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) involving more than $25,000 or under which it has imposed (or may impose) a Security Interest on any of its assets, tangible or intangible;
(v) any agreement for the disposition of any significant portion of the assets or business of the Seller (other similar than sales of products in the Ordinary Course of Business) or any agreement for the acquisition of the assets or arrangement, business of any other entity (other than purchases of inventory or components in each case that is material to the Ordinary Course of Business);
(vi) all material Leasesany agreement concerning exclusivity or confidentiality;
(vii) a Contract (A) pursuant to which a distributor (including any affiliate of Seller) has the right to distribute employment or resell products of the Business and (B) involving aggregate payments in excess of $100,000 in the twelve (12)-month period ended January 31, 2023consulting agreement;
(viii) any Contract that is a mortgageagreement involving any current or former officer, indenture, guaranty, financial, loan director or credit agreement, security agreement stockholder of the Seller or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted Liensan Affiliate thereof;
(ix) any Contract that is agreement under which the consequences of a hedging, futures, options default or other derivative Contracttermination would reasonably be expected to have a Seller Material Adverse Effect;
(x) any Contract agreement which contains any provisions requiring the Seller to indemnify any other party (excluding indemnities contained in agreements for the acquisition purchase, sale or license of any Person or any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory products entered into in the ordinary course Ordinary Course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereofBusiness);
(xi) any royalty agreement that could reasonably be expected to have the effect of prohibiting or similar Contract based on impairing the revenues conduct of the business of the Seller or profits any of any Transferred Subsidiaryits subsidiaries as currently conducted and as currently proposed to be conducted by the Seller;
(xii) any Contract agreement under which the Seller is restricted from selling, licensing or otherwise distributing any of indemnification its technology or guaranty to products, or providing services to, customers or potential customers or any Person not made class of customers, in any geographic area, during any period of time or any segment of the ordinary course market or line of business;
(xiii) any Contract with agreement which would entitle any Governmental Entity;third party to receive a license or any other right to Intellectual Property of the Buyer or any of the Buyer’s Affiliates following the Closing; and
(xiv) any Contract relating to the acquisition other agreement (or disposition group of any business related agreements) either involving more than $25,000 or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);
(xv) any Contract under which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks not entered into in the ordinary course Ordinary Course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof;
(xxii) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with respect to actions in such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involves: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable LawsBusiness.
(b) All Contracts set forth The Seller has delivered or required made available to be set forth the Buyer a complete and accurate copy of each agreement listed in Section 3.12 2.13 or Section 2.15 of the Disclosure Schedule Schedule. With respect to each agreement so listed: (includingi) the agreement is legal, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding and enforceable subject to the Enforceability Exception and in full force and effect; (ii) for those agreements to which the Seller is a party, subject, as to enforcement, the agreement is assignable by the Seller to the Enforceability Exceptions. The true, correct and complete copies Buyer without the consent or approval of all written Business Contracts any party (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that is not in written form.
(c) Except except as set forth in Section 3.12(c) 2.4 of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been () and will continue to be legal, valid, binding and enforceable subject to ongoing obligations the Enforceability Exception and in connection therewithfull force and effect immediately following the Closing in accordance with the terms thereof as in effect immediately prior to the Closing; and (iii) in material breach or default under neither the Business Contracts, andSeller nor, to the Knowledge knowledge of the Seller, no any other party to any Business Contract party, is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or violation of, or default thereunder. No under, any such agreement, and no event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, that (with or without notice or lapse of time) will or would reasonably be expected to (i) result in a material violation or breach of any of the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice is pending or, to the Knowledge knowledge of the Seller, other communication regarding any actual or possible violation or breach ofis threatened, which, after the giving of notice, with lapse of time, or material otherwise, would constitute a breach or default underby the Seller or, to the knowledge of the Seller, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights other party under any Business Contractsuch agreement.
Appears in 1 contract
Contracts. (a) Section 3.12(aSchedule 4.9(a) of the Disclosure Schedule sets forth, forth a complete list as of the date hereof, each Transferred Contract of this Agreement of any written contract in respect of the following types:Business to which the Company or any Subsidiary is a party or by which any of them is bound other than Employee Benefit Plans (collectively, the "Material Contracts"):
(i) that involves the expenditure by the Company or the Subsidiaries of more than $3,000,000 in any instance for the purchase of materials, supplies, equipment or services, excluding any such contract that is terminable by the Company or a collective bargaining agreement or other Contract with any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”)Subsidiary without penalty on not more than 90 days notice;
(ii) a Contract with any Top Customer (as defined below)is an indenture, including purchase orders covering a payment amount mortgage, loan agreement, capital lease, security agreement, or other agreement for the borrowing of money in excess of $2,000,000 or more, other than (A) in the ordinary course of business, (B) non-disclosure agreements, (C) sales acknowledgments, (D) purchase orders covering a payment amount of under $2,000,000 or (E) statements of work that have been satisfied in full50,000;
(iii) a Contract with any Top Vendor that guarantees the obligations of another Person (as defined below), including a purchase or service order covering a payment amount of $1,000,000 or more, other than (Athe Company or any Subsidiary) non-disclosure agreementsinvolving the potential expenditure by the Company or the Subsidiaries after the date of this Agreement of more than $50,000, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount under which any Person has guaranteed any liabilities or obligations of under $1,000,000 the Company or (D) statements of work that have been satisfied in fullany Subsidiary;
(iv) a Contract under which that restricts the Company or any Transferred Subsidiary has borrowed after the date of this Agreement from engaging in any money from, line of business in any geographic area or issued competing with any note, bond, debenture Person that materially impairs or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will would reasonably be terminated prior expected to or as materially impair the operation of the Closing)Business;
(v) a Contract concerning the establishment, control, maintenance or operation of a partnership, joint venture or other similar agreement or arrangement, in each case that is a license agreement (as licensor or licensee) with third parties under which the Company or any Subsidiary is obligated to pay or is expected to receive after the date of this Agreement an amount in excess of $50,000 during any calendar year or that is otherwise material to the Business;
(vi) all material Leasesthat is a partnership, limited liability company or joint venture agreement;
(vii) a Contract (A) pursuant under which the Company or any Subsidiary has obligations or contingent liabilities after the date of this Agreement relating to which a distributor (including the acquisition or sale of any affiliate of Seller) has the right to distribute or resell products of the Business and (B) involving aggregate payments in excess of $100,000 in the twelve (12)-month period ended January 31, 2023business enterprise;
(viii) any Contract that is a mortgagean exclusive distributor, indenture, guaranty, financial, loan dealer or credit agreement, security agreement or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted Lienssimilar contract;
(ix) any Contract that is contracts between the Company or a hedging, futures, options or other derivative Contract;
(x) any Contract for the acquisition of any Person or any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereof;
(xi) any royalty or similar Contract based on the revenues or profits of any Transferred Subsidiary;
(xii) any Contract of indemnification or guaranty to any Person not made in the ordinary course of business;
(xiii) any Contract with any Governmental Entity;
(xiv) any Contract relating to the acquisition or disposition of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);
(xv) any Contract under which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and either of the Sellers or any Transferred Affiliates of either of the Sellers (excluding the Company and the Subsidiaries), on the other handother, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof;
(xxii) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification aggregate payments after the date hereof by or to the Company or any Subsidiary of more than $250,000 during any officer, director, manager or employee by a Transferred Subsidiary (with respect to actions in such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involves: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliatesone-year period; and
(xxviix) any material management, consulting, contractor, relocation, repatriation contract that contains rights or expatriation agreement or other Contract between a Transferred Subsidiary obligations relating to both the Business and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable LawsPrime Energy Division.
(b) All Contracts set forth or required to be Except as set forth in Section 3.12 of the Disclosure Schedule (including, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing4.9(b), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding and each Material Contract is in full force and effect, subject, as to enforcement, to the Enforceability Exceptions. The true, correct and complete copies of all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy is a valid and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) binding agreement of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach Company or default under the Business Contractsa Subsidiary, and, to the Knowledge Sellers' knowledge, each of Sellerthe other parties thereto, enforceable against the Company or Subsidiary in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar Laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing. Except as set forth on Schedule 4.9(b), no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach condition exists or default thereunder. No event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, occurred that (whether with or without notice or lapse of timetime or both) will would constitute a default by (x) the Company or any Subsidiary under any Material Contract or (y) to the Sellers' knowledge, any other party to any Material Contract, in each case, except for defaults that would not, individually or in the aggregate, be reasonably be expected likely to have a Material Adverse Effect. Complete copies of (i) result in a material violation or breach of any of the provisions of any Business Contract; each such Material Contract (including all modifications and amendments thereto and waivers thereunder) and (ii) give any Person the right to declare a all form contracts, agreements or instruments used in and material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, to the Knowledge of Seller, other communication regarding any actual or possible violation or breach of, or material default under, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights under any Business Contracthave been made available to each Investor.
Appears in 1 contract
Contracts. Schedule 5.17 contains a complete and accurate list of the following types and forms of written contracts and other agreements to which the Company is a party:
(a) Section 3.12(a) any agreement (or group of the Disclosure Schedule sets forth, as of the date hereof, each Transferred Contract of the following types:
(i) a collective bargaining agreement or other Contract with any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”);
(ii) a Contract with any Top Customer (as defined belowrelated agreements), including purchase orders covering a payment amount written or oral, for the lease of $2,000,000 or more, other than (A) in the ordinary course of business, (B) non-disclosure agreements, (C) sales acknowledgments, (D) purchase orders covering a payment amount of under $2,000,000 or (E) statements of work that have been satisfied in full;
(iii) a Contract with any Top Vendor (as defined below), including a purchase or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in full;
(iv) a Contract under which any Transferred Subsidiary has borrowed any money from, or issued any note, bond, debenture or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior personal property to or as of the Closing);
(v) a Contract concerning the establishment, control, maintenance or operation of a partnership, joint venture or other similar agreement or arrangement, in each case that is material to the Business;
(vi) all material Leases;
(vii) a Contract (A) pursuant to which a distributor (including from any affiliate of Seller) has the right to distribute or resell products of the Business and (B) involving aggregate Person providing for lease payments in excess of $100,000 in the twelve (12)-month period ended January 31, 2023€50,000 per annum;
(viiib) any Contract that is agreement (or group of related agreements) for the purchase or sale of raw materials, commodities, supplies, products, or other personal property, or for the furnishing or receipt of services, the performance of which shall extend over a mortgageperiod of more than one year, indentureresult in a material loss to the Company, guaranty, financial, loan or credit agreement, security agreement or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties involve consideration in excess of any Transferred Subsidiary, other than Permitted Liens€100,000 per year;
(ixc) any Contract agreement that is a hedging, futures, options involves performance of services by the company of an amount or other derivative Contractvalue in excess of €50,000;
(xd) any Contract for the acquisition agreement that involves performance of any Person or any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior services to the date hereofCompany of an amount or value in excess of €100,000;
(xie) any royalty agreement concerning a corporation, partnership, limited partnership, joint venture, limited liability company, limited liability partnership or similar Contract based on entity, including any agreement with such an organization which provides for a sharing of profits, losses, costs or liabilities of the revenues or profits of Company with any Transferred Subsidiaryother Person;
(xiif) any Contract agreement granting a power of indemnification or guaranty attorney to any Person not made in the ordinary course of business;
(xiii) any Contract with any Governmental Entity;
(xiv) any Contract relating to the acquisition or disposition of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);
(xv) any Contract under which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xviig) any Contract that contains agreement involving a license, sublicense written warranty or guaranty and any other provision under which any Transferred Subsidiary is granted or assigned rights similar understanding with respect to contractual performance extended by others in Business Intellectual Property, the Company other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses the Ordinary Course of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposesBusiness;
(xviiih) any Contract that contains a license, sublicense agreement (or other provision group of related agreements) under which a Transferred Subsidiary it has granted or assigned rights to others in Business Intellectual Propertycreated, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaserincurred, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiaryassumed, or (D) non-exclusive licenses to Trademarks entered into guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, in the ordinary course excess of business for inclusion €100,000 or under which it has imposed an Encumbrance on any of such Trademark in a customer list its assets, tangible or similar immaterial marketing purposesintangible;
(xixi) any contract, arrangement or commitment containing covenants by the Company not-to-compete in any line of business with any Person or restricting the customers from whom, or the area in which, the Company may solicit or conduct business or any contract, arrangement or commitment involving a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) covenant of Regulation S-K under the Securities Actconfidentiality;
(xxj) any Contract between agreement under which it has advanced or lent any member amount of the Seller Group money or property to any of its affiliates (other than a Transferred Subsidiary)directors, on the one handofficers, and any Transferred Subsidiaries, on employees outside of the other hand, that is currently in effectOrdinary Course of Business;
(xxil) any Contract involving capital expenditures agreement that the Seller or Company has with representatives regarding the sale of products produced by the Company. The Company has delivered to Buyer simultaneously with the execution of this Agreement, a Transferred Subsidiary correct and complete copy of each written agreement listed in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following Schedule 5.17 (as amended to the date hereof;
) and a written summary setting forth the terms and conditions of each oral agreement referred to in Schedule 5.17 (xxii) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with a). With respect to actions in each such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involvesagreement: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individuallyagreement is legal, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Laws.
(b) All Contracts set forth or required to be set forth in Section 3.12 of the Disclosure Schedule (including, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding binding, enforceable and in full force and effect, subject, as to enforcement, to ; (B) the Enforceability Exceptions. The true, correct and complete copies of all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and agreement shall continue to be subject to ongoing obligations legal, valid, binding, enforceable and in connection therewithfull force and effect on identical terms following the consummation of the Contemplated Transactions; (C) no party is in material breach or default under the Business Contractsdefault, and, to the Knowledge of Seller, and no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, that (occurred which with or without notice or lapse of timetime would constitute a breach or default, or permit termination, modification, or acceleration, under the agreement; and (D) will or would reasonably be expected to (i) result in a material violation or breach of no party has repudiated any provision of the provisions of any Business Contract; agreement. It is expressly stated that French Commercial Law provides for a specific regime for terminating agreements (iioral or written) give any Person the right to declare a material default or exercise any remedy under any Business Contract; with due notice (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, to the Knowledge of Seller, other communication regarding any actual or possible violation or breach of, or material default under, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights under any Business ContractArticle L 442-6-1-5°).
Appears in 1 contract
Contracts. (a) Section 3.12(a) of the Triarc Disclosure Schedule sets forth, as Letter lists the following Contracts to which ARG or any of its Subsidiaries is a party and which are outstanding (which Section may be updated by Triarc prior to the Closing Date to reflect any additions or deletions thereto after the date hereof) (collectively, each Transferred Contract of the following types:"ARG MATERIAL CONTRACTS"):
(i) a collective bargaining agreement or other any Contract with expressly requiring capital expenditures involving consideration in excess of $50,000 in any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”)twelve month period;
(ii) a any Contract with which restricts or limits, in any Top Customer material respect, the ability of ARG or any of its Subsidiaries to freely engage in any aspect of the quick service restaurant business, whether as franchisor or owner/operator, or to employ any individuals (as defined below), including purchase orders covering a payment amount of $2,000,000 or more, other than (A) any confidentiality agreement entered into in the ordinary course of business, (B) non-disclosure agreements, (C) sales acknowledgments, (D) purchase orders covering connection with a payment amount of under $2,000,000 potential acquisition containing any such restriction or (E) statements of work that have been satisfied in fulllimitation to employ any individuals);
(iii) a Contract with any Top Vendor (as defined below), including a purchase or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in fullcollective bargaining agreement;
(iv) a Contract under which any Transferred Subsidiary has borrowed any money from, or issued any note, bond, debenture or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior which involved payments from ARG or any of its Subsidiaries of more than $250,000 to any Person supplying food or as of paper products or distribution services to ARG and its Subsidiaries during the Closing)twelve-month period ended January 2, 2005;
(v) a any Contract concerning which involved payments from ARG or any of its Subsidiaries of more than $100,000 to any Person supplying advertising services or marketing services or materials to ARG and its Subsidiaries during the establishmenttwelve-month period ended January 2, control, maintenance or operation of a partnership, joint venture or other similar agreement or arrangement, in each case that is material to the Business2005;
(vi) all material Leasesany Contract which involved payments to ARG or any of its Subsidiaries of more than $100,000 from any Person supplying beverage products during the twelve-month period ended January 2, 2005;
(vii) a any Contract (A) pursuant relating to the management or control of any Person in which a distributor (including ARG or any affiliate of Seller) has the right to distribute or resell products its Subsidiaries owns any equity securities other than direct and indirect wholly owned Subsidiaries of the Business and (B) involving aggregate payments in excess of $100,000 in the twelve (12)-month period ended January 31, 2023ARG;
(viii) any Contract that is a mortgagerelating to the employment of any employee, indenture, guaranty, financial, loan or credit agreement, security agreement or is a and any Contract pursuant to which ARG or any Transferred Subsidiary of its Subsidiaries is a party creating or granting may become obligated to make any Lien on severance, termination, bonus or relocation payment or any assets or properties of any Transferred Subsidiary, other payment (other than Permitted Lienspayments in respect of salary) in excess of $125,000 to any current or former employee, officer or director;
(ix) any Contract that is a hedgingwhich provides for indemnification by ARG or any of its Subsidiaries of (A) any officer, futuresdirector or employee of Triarc or any of its Subsidiaries or (B) any agent of Triarc or any of its Subsidiaries or any other Person that, options in the case of this clause (B), has resulted in or other derivative Contractwould reasonably be expected to result in, individually or in the aggregate, any material liabilities to ARG or any of its Subsidiaries;
(x) any Contract for relating to any Indebtedness, guarantying the acquisition performance of any Person or guarantying any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereofIndebtedness;
(xi) any royalty Contract involving a purchase price of $50,000 or similar Contract based on more under which the revenues closing of the transactions contemplated thereby has not occurred or profits under which there remains outstanding obligations and which relates to the acquisition by ARG or any of its Subsidiaries of any Transferred Subsidiaryoperating business or the capital stock or other equity securities of any other Person, or the sale by ARG or any of its Subsidiaries of any operating business or the capital stock or other equity securities of any former Subsidiary of ARG;
(xii) any partnership or joint venture agreement or other Contract involving a sharing of indemnification profits, losses, costs or guaranty to Liabilities with any Person not made in the ordinary course of businessother Person;
(xiii) any Contract with under which ARG or any Governmental Entityof its Subsidiaries uses or occupies or has the right to use or occupy any real property (collectively, the "ARG REAL PROPERTY LEASES") (and Section 3.12(a)(xiii) of the Triarc Disclosure Letter sets forth a true and complete summary of the following terms of each such ARG Real Property Lease:
(1) the annual rental rate; and (2) the termination date);
(xiv) any Contract relating under which ARG or any of its Subsidiaries grants to any Person or Persons the acquisition right of use or disposition occupancy to any portion of any business or material portion parcel of ARG Real Property (collectively, the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise"ARG LEASES");
(xv) any Contract under which the Transferred closing of the transactions contemplated thereby has not occurred relating to the acquisition or sale by ARG or any of its Subsidiaries have an obligation with respect to an “earn out,” contingent of one or more parcels of real property, the aggregate purchase price, or similar contingent payment obligationprice of which exceeds $50,000;
(xvi) any Contract (A) containing covenants that restrict under which the closing of the transactions contemplated thereby has not occurred relating to the construction by ARG or limit in any material respect of its Subsidiaries of one or more new Restaurants, the ability of any Transferred Subsidiary to engage estimated costs under which exceeds $50,000 in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Personaggregate;
(xvii) any Contract that contains a licenseentered into out of the ordinary course of business, sublicense including any Contract entered into in connection with any settlement of any claim, action, suit, demand, proceeding, investigation or other provision under which dispute, involving payments by ARG and/or its Subsidiaries in excess of $50,000 or any Transferred Subsidiary is granted unfulfilled or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for pending non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses payment obligations of third party Trademarks solely for the inclusion ARG or any of such Trademarks in a customer list or similar marketing purposes;its Subsidiaries; and
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pledge pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group which ARG or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and Subsidiaries has committed or undertaken to make any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary charitable contribution with an unfulfilled amount in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof;
(xxii) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with respect to actions in such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involves: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individually, 50,000 individually or $1,000,000 250,000 in the aggregate when taken together with for all other such Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Lawspledges.
(b) All Contracts set forth or required to be set forth in Section 3.12 of the Disclosure Schedule (including, for the avoidance of doubt, any Each ARG Material Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are is valid, binding and binding, in full force and effect, subject, as to enforcement, to effect and enforceable in accordance with its terms against ARG or the Enforceability Exceptions. The true, correct and complete copies applicable Subsidiary of all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default under the Business Contracts, ARG and, to the Knowledge of SellerTriarc, no against any other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach thereto. ARG or default thereunder. No event has occurred, the applicable Subsidiary of ARG and, to the Knowledge of SellerTriarc, each other party thereto, is not in material breach or material default under any ARG Material Contract and to the Knowledge of Triarc, no circumstance event has occurred or condition existsof set of circumstances exists which, that (with or without notice or lapse of time) will time or both, would reasonably be expected to (i) result in constitute a material violation breach or breach of any of the provisions of any Business Contract; (ii) give any Person the right to declare a material default default, or exercise any remedy permit termination, modification or acceleration, under any Business Contract; (iii) give ARG Material Contract by any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, to the Knowledge of Seller, other communication regarding any actual or possible violation or breach of, or material default under, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights under any Business Contractparty thereto.
Appears in 1 contract
Contracts. (a) Section 3.12(a4(o) of the Disclosure Schedule sets forth, as of the date hereof, each Transferred Contract of lists the following typescontracts and other agreements to which Company is a party and which is in current force and effect:
(i) a collective bargaining any agreement (or other Contract with group of related agreements) for the lease of personal property to or from any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”)Person providing for lease payments in excess of $20,000 per annum;
(ii) any agreement (or group of related agreements) for the purchase or sale of raw materials, commodities, supplies, products, or other personal property, or for the furnishing or receipt of services, the performance of which will extend over a Contract with any Top Customer (as defined below)period of more than 1 year, including purchase orders covering result in a payment amount loss to Company, or involve consideration in excess of $2,000,000 or more, other than (A) in the ordinary course of business, (B) non-disclosure agreements, (C) sales acknowledgments, (D) purchase orders covering a payment amount of under $2,000,000 or (E) statements of work that have been satisfied in full10,000;
(iii) any agreement concerning a Contract with any Top Vendor (as defined below), including a purchase partnership or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in fulljoint venture;
(iv) a Contract any agreement (or group of related agreements) under which any Transferred Subsidiary it has borrowed any money fromcreated, incurred, assumed, or issued guaranteed any noteindebtedness for borrowed money, bond, debenture or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to or as of the Closing)capitalized lease obligation;
(v) a Contract any agreement concerning the establishment, control, maintenance confidentiality or operation of a partnership, joint venture or other similar agreement or arrangement, in each case that is material to the Businessnon-competition;
(vi) all material Leasesany agreement with any of Sellers and their Affiliates (other than Company);
(vii) a Contract (A) pursuant to which a distributor (including any affiliate profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or other plan or arrangement for the benefit of Seller) has the right to distribute its current or resell products of the Business former directors, officers, and (B) involving aggregate payments in excess of $100,000 in the twelve (12)-month period ended January 31, 2023employees;
(viii) any Contract that is a mortgage, indenture, guaranty, financial, loan or credit collective bargaining agreement, security agreement or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted Liens;
(ix) any Contract that is agreement for the employment of any individual on a hedgingfull-time, futurespart-time, options consulting, or other derivative Contractbasis;
(x) any Contract for agreement under which it has advanced or loaned any amount to any of its directors, officers, and employees outside the acquisition Ordinary Course of any Person or any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereofBusiness;
(xi) any royalty agreement under which the consequences of a default or similar Contract based on the revenues or profits of any Transferred Subsidiarytermination could have a Material Adverse Effect;
(xii) any Contract of indemnification or guaranty to agreement under which it has granted any Person not made in the ordinary course of businessany registration rights (including, without limitation, demand and piggyback registration rights);
(xiii) any Contract settlement, conciliation or similar agreement with any Governmental EntityEntity or which will require satisfaction of any obligations after the execution date of this Agreement;
(xiv) any Contract relating to the acquisition agreement under which Company has given any other Person an advance or disposition of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);a loan; or
(xv) any Contract under other agreement (or group of related agreements) the performance of which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary involves consideration in excess of $1,500,000 20,000. Sellers have delivered to Buyer a correct and complete copy of each written agreement (as amended to date) listed in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof;
(xxii§4(o) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available Disclosure Schedule and a written summary setting forth the terms and conditions of each oral agreement referred to Purchaser and (Bin §4(o) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with Disclosure Schedule. With respect to actions in each such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involvesagreement: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individuallyagreement is legal, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Laws.
(b) All Contracts set forth or required to be set forth in Section 3.12 of the Disclosure Schedule (including, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding binding, enforceable, and in full force and effect, subject, as to enforcement, to ; (B) the Enforceability Exceptions. The true, correct and complete copies of all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and agreement will continue to be subject to ongoing obligations legal, valid, binding, enforceable, and in connection therewithfull force and effect on identical terms following the consummation of the transactions contemplated hereby; (C) no party is in material breach or default under the Business Contractsdefault, and, to the Knowledge of Seller, and no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, occurred that (with or without notice or lapse of timetime would constitute a breach or default, or permit termination, modification, or acceleration, under the agreement; and (D) will or would reasonably be expected to (i) result in a material violation or breach of no party has repudiated any provision of the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, to the Knowledge of Seller, other communication regarding any actual or possible violation or breach of, or material default under, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights under any Business Contractagreement.
Appears in 1 contract
Contracts. (a) Section 3.12(a) 2.14 of the Disclosure Schedule sets forth, lists the following agreements (written or oral) to which the Seller is a party as of the date hereof, each Transferred Contract of this Agreement (other than this Agreement and the following types:Ancillary Agreements):
(i) any agreement (or group of related agreements) for the lease of personal property from or to third parties providing for lease payments in excess of $5,000 per annum or having a collective bargaining agreement or other Contract with any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”)remaining term longer than three months;
(ii) a Contract with any Top Customer agreement (as defined below), including or group of related agreements) for the purchase orders covering a payment amount or sale of $2,000,000 products or more, other than for the furnishing or receipt of services (A) in the ordinary course which calls for performance over a period of businessmore than one year, (B) non-disclosure agreementswhich involves more than the sum of $5,000, or (C) sales acknowledgmentsin which the Seller has granted manufacturing rights, (D) “most favored nation” pricing provisions or marketing or distribution rights relating to any products or territory or has agreed to purchase orders covering a payment amount minimum quantity of under $2,000,000 goods or (E) statements of work that have been satisfied in fullservices or has agreed to purchase goods or services exclusively from a certain party;
(iii) a Contract with any Top Vendor (as defined below), including a purchase or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in full;
(iv) a Contract under which any Transferred Subsidiary has borrowed any money from, or issued any note, bond, debenture or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to or as of the Closing);
(v) a Contract agreement concerning the establishment, control, maintenance establishment or operation of a partnership, joint venture or limited liability company;
(iv) any agreement (or group of related agreements) under which it has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) involving more than $5,000 or under which it has imposed (or may impose) a Security Interest on any of its assets, tangible or intangible;
(v) any agreement for the disposition of any significant portion of the assets or business of the Seller (other similar than sales of products in the Ordinary Course of Business) or any agreement for the acquisition of the assets or arrangement, business of any other entity (other than purchases of inventory or components in each case that is material to the Ordinary Course of Business);
(vi) all material Leasesany agreement concerning exclusivity or confidentiality;
(vii) a Contract (A) pursuant to which a distributor (including any affiliate of Seller) has the right to distribute employment or resell products of the Business and (B) involving aggregate payments in excess of $100,000 in the twelve (12)-month period ended January 31, 2023consulting agreement;
(viii) any Contract that is a mortgageagreement involving any current or former officer, indenture, guaranty, financial, loan manager or credit agreement, security agreement Member or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted Liensan Affiliate thereof;
(ix) any Contract that is agreement under which the consequences of a hedging, futures, options default or other derivative Contracttermination would reasonably be expected to have a Seller Material Adverse Effect;
(x) any Contract agreement which contains any provisions requiring the Seller to indemnify any other party (excluding indemnities contained in agreements for the acquisition purchase, sale or license of any Person or any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory products entered into in the ordinary course Ordinary Course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereofBusiness);
(xi) any royalty agreement that could reasonably be expected to have the effect of prohibiting or similar Contract based on impairing the revenues conduct of the business of the Seller or profits of the Buyer or any Transferred Subsidiaryof its subsidiaries as currently conducted and as currently proposed to be conducted;
(xii) any Contract agreement under which the Seller is restricted from selling, licensing or otherwise distributing any of indemnification its technology or guaranty to products, or providing services to, customers or potential customers or any Person not made class of customers, in any geographic area, during any period of time or any segment of the ordinary course market or line of business;
(xiii) any Contract with agreement which would entitle any Governmental Entity;third party to receive a license or any other right to intellectual property of the Buyer or any of the Buyer’s Affiliates following the Closing; and
(xiv) any Contract relating to the acquisition other agreement (or disposition group of any business related agreements) either involving more than $10,000 or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);
(xv) any Contract under which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks not entered into in the ordinary course Ordinary Course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof;
(xxii) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with respect to actions in such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involves: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable LawsBusiness.
(b) All Contracts set forth or required The Seller has delivered to be set forth the Buyer a complete and accurate copy of each agreement listed in Section 3.12 2.13 or Section 2.14 of the Disclosure Schedule (including, for the avoidance of doubt, any Contract that would have been required Schedule. With respect to be identified each agreement so listed and except as disclosed in Section 3.12 2.14 of the Disclosure Schedule had Section 3.12 of Schedules: (i) the Disclosure Schedule been made at the Closing)agreement is legal, all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding and enforceable and in full force and effect; (ii) for those agreements to which the Seller is a party, subjectthe agreement is assignable by the Seller to the Buyer without the consent or approval of any party and 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 enforcementthe Closing; and (iii) neither the Seller nor, to the Enforceability Exceptions. The true, correct and complete copies of all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) knowledge of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that Seller, any other party, is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default under the Business Contractsviolation of, and, to the Knowledge of Seller, no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No under, any such agreement, and no event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, that (with or without notice or lapse of time) will or would reasonably be expected to (i) result in a material violation or breach of any of the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice is pending or, to the Knowledge knowledge of the Seller, other communication regarding any actual or possible violation or breach ofis threatened, which, after the giving of notice, with lapse of time, or material otherwise, would constitute a breach or default underby the Seller or, to the knowledge of the Seller, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights other party under any Business Contractsuch agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (World Energy Solutions, Inc.)
Contracts. Section 4.14 of the ▇▇▇▇▇▇ Disclosure Schedule lists the following contracts and other agreements to which any of ▇▇▇▇▇▇ and its Subsidiaries is a party:
(a) Section 3.12(aany agreement (or group of related agreements) for the lease of personal property to or from any Person providing for lease payments in any amount;
(b) any agreement (or group of related agreements) for the purchase or sale of raw materials, commodities, supplies, products, or other personal property, or for the furnishing or receipt of services, the performance of which will extend over a period of more than one year or involve consideration in any amount;
(c) any agreement concerning a partnership or joint venture;
(d) any agreement (or group of related agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, in any amount or under which it has imposed a Security Interest on any of its assets, tangible or intangible;
(e) any agreement concerning confidentiality or noncompetition;
(f) any agreement, contract or understanding (including any agreement, contract or understanding evidencing any outstanding indebtedness or other similar obligations to ▇▇▇▇▇▇ or its Subsidiaries) with any director, officer, Affiliate or "associate" (as such term is defined in Rule 12b-2 under the Securities Exchange Act) of ▇▇▇▇▇▇ or its Subsidiaries;
(g) any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or other material plan or arrangement for the Disclosure Schedule sets forthbenefit of its current or former directors, as of the date hereofofficers, each Transferred Contract of the following types:and employees;
(h) any collective bargaining agreement;
(i) any agreement for the employment of any individual on a collective bargaining agreement full-time, part-time, consulting, or other Contract with any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”)basis;
(iij) a Contract with any Top Customer (as defined below), including purchase orders covering a payment amount of $2,000,000 or more, other than (A) in the ordinary course of business, (B) non-disclosure agreements, (C) sales acknowledgments, (D) purchase orders covering a payment amount of under $2,000,000 or (E) statements of work that have been satisfied in full;
(iii) a Contract with any Top Vendor (as defined below), including a purchase or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in full;
(iv) a Contract agreement under which it has advanced or loaned any Transferred Subsidiary has borrowed amount to any money fromof its directors, or issued any noteofficers, bond, debenture or other evidence and employees outside the Ordinary Course of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to or as of the Closing);
(v) a Contract concerning the establishment, control, maintenance or operation of a partnership, joint venture or other similar agreement or arrangement, in each case that is material to the Business;
(vi) all material Leases;
(vii) a Contract (A) pursuant to which a distributor (including any affiliate of Seller) has the right to distribute or resell products of the Business and (B) involving aggregate payments in excess of $100,000 in the twelve (12)-month period ended January 31, 2023;
(viiik) any Contract that is a mortgage, indenture, guaranty, financial, loan or credit agreement, security agreement or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted Liens;
(ix) any Contract that is a hedging, futures, options or other derivative Contract;
(x) any Contract for the acquisition of any Person or any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereof;
(xi) any royalty or similar Contract based on the revenues or profits of any Transferred Subsidiary;
(xii) any Contract of indemnification or guaranty to any Person not made in the ordinary course of business;
(xiii) any Contract with any Governmental Entity;
(xiv) any Contract relating to the acquisition or disposition of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);
(xv) any Contract under which the Transferred Subsidiaries consequences of a default or termination could have an obligation with respect to an “earn out,” contingent purchase pricea material adverse effect on the business, financial condition, operations, results of operations, or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof;
(xxii) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation future prospects of any of the transactions contemplated by this Agreement;▇▇▇▇▇▇ and its Subsidiaries; or
(xxivl) any Contract that provides that fees other agreement (or expenses group of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with respect to actions in such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involves: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (Brelated agreements) the performance of services or provision which involves consideration in any amount. ▇▇▇▇▇▇ has delivered to Emergisoft a correct and complete copy of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation each written agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Laws.
(b) All Contracts set forth or required to be set forth listed in Section 3.12 4.14 of the ▇▇▇▇▇▇ Disclosure Schedule (including, for as amended to date) and a written summary setting forth the avoidance material terms and conditions of doubt, any Contract that would have been required each oral agreement referred to be identified in Section 3.12 4.14 of the ▇▇▇▇▇▇ Disclosure Schedule had Section 3.12 of Schedule. With respect to each such agreement: (i) the Disclosure Schedule been made at the Closing)agreement is legal, all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding binding, enforceable, and in full force and effect, subject, as to enforcement, to effect in all material respects; (ii) the Enforceability Exceptions. The true, correct and complete copies of all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and agreement will continue to be subject to ongoing obligations legal, valid, binding, enforceable, and in connection therewithfull force and effect on identical terms following the consummation of the transactions contemplated hereby; (iii) no party is in material breach or default under the Business Contractsdefault, and, to the Knowledge of Seller, and no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, that (occurred which with or without notice or lapse of time) will time would constitute a breach or would reasonably be expected to (i) result in a material violation default, or breach of any of permit termination, modification, or acceleration, under the provisions of any Business Contractagreement; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or and (iv) give no party has repudiated any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member provision of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, to the Knowledge of Seller, other communication regarding any actual or possible violation or breach of, or material default under, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights under any Business Contractagreement.
Appears in 1 contract
Contracts. Schedule 5.1(n) lists the following currently --------- --------------- effective contracts and other agreements to which the Company or any of its Subsidiaries is a party (acollectively, the "Material Contracts"): ------------------
(i) Section 3.12(a) any agreement relating to indebtedness, liability for borrowed money or the deferred purchase price of property (excluding trade payables in the Disclosure Schedule sets forthOrdinary Course of Business), and the respective principal amounts outstanding thereunder as of the date hereofof this Agreement, each Transferred Contract of the following types:
(i) a collective bargaining agreement or any guarantee or other Contract with contingent liability in respect of any labor organization, trade union, works council indebtedness or similar bargaining representative obligation of any Person (a “Collective Agreement”other than the endorsement of negotiable instruments for collection in the Ordinary Course of Business);
(ii) a Contract any agreement that contains restrictions with respect to payment of dividends or any Top Customer (as defined below), including purchase orders covering a payment amount other distribution in respect of $2,000,000 the equity of the Company or more, other than (A) in the ordinary course any of business, (B) non-disclosure agreements, (C) sales acknowledgments, (D) purchase orders covering a payment amount of under $2,000,000 or (E) statements of work that have been satisfied in fullits Subsidiaries;
(iii) a Contract with any Top Vendor (as defined below), including a purchase letters of credit or service order covering a payment amount similar arrangements relating to the Company or any of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in fullits Subsidiaries;
(iv) any agreement concerning a Contract under which any Transferred Subsidiary has borrowed any money from, partnership or issued any note, bond, debenture or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to or as of the Closing)joint venture;
(v) a Contract concerning any employment agreements with any employee of the establishment, control, maintenance Company or operation any of a partnership, joint venture its Subsidiaries or other similar agreement or arrangement, in each case that is material to the BusinessPerson on a consulting basis;
(vi) all material Leasesany management, consulting or advisory agreements, or severance (including early retirement and redundancy) plans or arrangements for any present or former employee of the Company or any of its Subsidiaries;
(vii) any non-disclosure agreements and non-compete agreements or other agreements containing confidentiality provisions or restrictive covenants binding a Contract (A) pursuant to which a distributor (including any affiliate of Seller) has the right to distribute present or resell products former employee of the Business and (B) involving aggregate payments in excess Company or any of $100,000 in the twelve (12)-month period ended January 31, 2023its Subsidiaries;
(viii) any Contract that agreement under which the Company or any of its Subsidiaries is a mortgagelessee of or holds or operates (A) any real property, indenture, guaranty, financial, loan or credit agreement, security agreement or is a Contract to which (B) any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties personal property providing for payments in excess of any Transferred Subsidiary, other than Permitted Liens$20,000 annually;
(ix) any Contract that agreement under which the Company or any of its Subsidiaries is a hedginglessor of or permits any third party to hold or operate any property, futures, options real or other derivative Contractpersonal;
(x) any Contract for agreement relating to the acquisition or divestiture of the capital stock or other equity securities, assets or business of any Person involving the Company or any business unit thereof of its Subsidiaries or pursuant to which the disposition Company or any of its Subsidiaries has any assetsLiability, other than (A) Contracts for acquisitions contingent or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereofotherwise;
(xi) any royalty powers of attorney granted by or similar Contract based on behalf of the revenues Company or profits any of any Transferred Subsidiaryits Subsidiaries;
(xii) any Contract of indemnification or guaranty to any Person not made agreement, other than agreements entered into in the ordinary course Ordinary Course of businessBusiness, which prevents the Company or any of its Subsidiaries from disclosing confidential information or which prohibits the Company or any of its Subsidiaries from freely engaging in business anywhere in the world;
(xiii) any Contract with sales or distribution agreements, franchise agreements and advertising agreements relating to the Company or any Governmental Entityof its Subsidiaries;
(xiv) any Contract relating warranty, guaranty or other similar undertaking with respect to a contractual performance extended by the acquisition Company or disposition any of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise)its Subsidiaries;
(xv) any Contract under which agreement with any of the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, stockholders of the Company or similar contingent payment obligationAffiliates;
(xvi) any Contract (A) containing covenants that restrict agreement under which the Company or limit in any material respect the ability of its Subsidiaries has advanced or loaned any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status amount to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of its directors, officers and employees outside the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any PersonOrdinary Course of Business;
(xvii) any Contract that contains a licenseagreement pursuant to which the Company or any of its Subsidiaries has agreed to defend, sublicense indemnify or hold harmless any other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposesPerson;
(xviii) any Contract that contains a license, sublicense agreement pursuant to which the Company or other provision under which a Transferred Subsidiary any of its Subsidiaries has granted or assigned rights agreed to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms settle any Liability for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposesTaxes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” any agreement pursuant to Item 601(b)(10)(i) which the Company or any of Regulation S-K under its Subsidiaries has agreed to shift or allocate the Securities ActLiability of the Company or any of its Subsidiaries or any other Person for Taxes;
(xx) any Contract between any member of agreement where the Seller Group Company or any of its affiliates (other than a Transferred SubsidiarySubsidiaries has entered into an escrow agreement for Company Software, specifically designated as such on Schedule 5.1(n), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;; ---------------
(xxi) any Contract other agreement involving capital expenditures by a Transferred Subsidiary in excess of $1,500,000 in 500,000 or which is otherwise required to be filed as an exhibit to the aggregate, whether or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof;Company SEC Reports; and
(xxii) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention federal government office or stay bonusagency, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vestingany general service administration (GSA) agreement, or other material compensation amount any agreement with any state or benefits thatlocal government agency funded in any part by federal funds, in each case, will be payable or due case specifically designated as such on Schedule 5.1(n). --------------- The Company has delivered to Parent a result correct and complete copy of each written agreement listed in Schedule 5.1(n) (as amended to date) and a --------------- written summary setting forth the consummation terms and conditions of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates each oral agreement referred to in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with Schedule 5.1(n). With respect to actions in each such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involvesagreement: (Ai) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individually--------------- agreement is legal, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Laws.
(b) All Contracts set forth or required to be set forth in Section 3.12 of the Disclosure Schedule (including, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding binding, enforceable, and in full force and effecteffect and will continue to be legal, subjectvalid, as to enforcementbinding, to enforceable, and in full force and effect on identical terms immediately following the Enforceability Exceptions. The trueconsummation of the Merger, correct and complete copies of all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws laws of general application relating to public policy, bankruptcy, insolvency and the safeguarding relief of Personal Data). Section 3.12(bdebtors and rules of law governing specific performance, injunctive relief and other equitable remedies; (ii) of neither the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries Company nor any of their affiliates its Subsidiaries is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default under the Business Contracts, and, to the Knowledge of Seller, no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No default, and no event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, that (occurred which with or without notice or lapse of time) will time would constitute a breach or would reasonably be expected to (i) result in a material violation default, or breach of any of permit termination, modification, or acceleration, under the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contractagreement; (iii) give any Person neither the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) Company nor any of its affiliates Subsidiaries has received and no other party has repudiated any written notice or, to the Knowledge of Seller, other communication regarding any actual or possible violation or breach of, or material default under, any Business Contract. No member provision of the Seller Group agreement; and (including iv) neither the Transferred Subsidiaries) Company nor any of its affiliates Subsidiaries has waived or currently is making any payments, including payment of their material rights liquidated damages, under any Business Contractsuch agreements for failure to perform thereunder.
Appears in 1 contract
Contracts. (a) Section 3.12(a) 4.16 of the Disclosure Schedule sets forth, as of the date hereof, each Transferred Contract of lists the following typescontracts and other agreements to which ▇▇▇▇▇ is a party:
(ia) a collective bargaining any agreement (or other Contract with any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”);
(iigroup of related agreements) a Contract with any Top Customer (as defined below), including purchase orders covering a payment amount for the lease of $2,000,000 or more, other than (A) in the ordinary course of business, (B) non-disclosure agreements, (C) sales acknowledgments, (D) purchase orders covering a payment amount of under $2,000,000 or (E) statements of work that have been satisfied in full;
(iii) a Contract with any Top Vendor (as defined below), including a purchase or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in full;
(iv) a Contract under which any Transferred Subsidiary has borrowed any money from, or issued any note, bond, debenture or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior personal property to or as of the Closing);
(v) a Contract concerning the establishment, control, maintenance or operation of a partnership, joint venture or other similar agreement or arrangement, in each case that is material to the Business;
(vi) all material Leases;
(vii) a Contract (A) pursuant to which a distributor (including from any affiliate of Seller) has the right to distribute or resell products of the Business and (B) involving aggregate Person providing for lease payments in excess of $100,000 in the twelve (12)-month period ended January 31, 2023per annum;
(viiib) any Contract that is agreement (or group of related agreements) for the purchase or sale of raw materials, commodities, supplies, products, or other personal property, or for the furnishing or receipt of services, the performance of which will extend over a mortgageperiod of more than one year, indenture, guaranty, financial, loan or credit agreement, security agreement or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties involve consideration in excess of any Transferred Subsidiary, other than Permitted Liens$200,000;
(ixc) any Contract that is agreement concerning a hedging, futures, options partnership or other derivative Contractjoint venture;
(xd) any Contract agreement (or group of related agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness for the acquisition of any Person borrowed money, or any business unit thereof capitalized lease obligation, in excess of $50,000 or the disposition under which it has imposed a Security Interest on any of any its assets, other than (A) Contracts for acquisitions tangible or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereofintangible;
(xie) any royalty agreement concerning confidentiality or similar Contract based on noncompetition, or which otherwise restricts in any material manner the revenues free use by ▇▇▇▇▇ of its assets or profits data made available to it in the Ordinary Course of any Transferred SubsidiaryBusiness;
(xiif) any Contract of indemnification or guaranty to any Person not made in the ordinary course of business;
(xiii) any Contract agreement with any Governmental Entity;
(xiv) any Contract relating to the acquisition or disposition of any business or material portion of the assets of Seller, any Person Seller Stockholder, or any Affiliates thereof (whether by merger, sale of stock, sale of assets or otherwiseother than ▇▇▇▇▇);
(xvg) any Contract under which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase priceprofit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or similar contingent payment obligationother material plan or arrangement for the benefit of ▇▇▇▇▇'▇ current or former directors, officers, and employees, or for which ▇▇▇▇▇ may otherwise be solely or jointly liable;
(xvih) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Personcollective bargaining agreement;
(xviii) any Contract that contains agreement for the employment of any individual on a licensefull- time, sublicense part-time, consulting, or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of basis providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof;
(xxii) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention 50,000 or stay bonus, providing severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreementbenefits;
(xxivj) any Contract that provides that fees agreement under which it has advanced or expenses loaned any amount to any of any its directors, officers, and employees outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred SubsidiaryOrdinary Course of Business;
(xxvk) any Contract agreement under which provides for indemnification the consequences of any officera default or termination could have a material adverse effect on the business, directorfinancial condition, manager operations, results of operations, or employee by a Transferred Subsidiary (with respect to actions in such capacity)future prospects of ▇▇▇▇▇;
(xxvil) any Contract entered into since January 31, 2023 all contracts to which the Seller or its Affiliates (other than Employee Benefit Plans▇▇▇▇▇) that contemplates is a party and which provides a material benefit or involves: detriment to ▇▇▇▇▇; and
(Am) any other agreement (or group of related agreements) the payment or delivery performance of cash or other which involves consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individually, or $1,000,000 in 200,000. The Seller has delivered to the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or Buyer a correct and complete copy of each written agreement (Bas amended to date) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Laws.
(b) All Contracts set forth or required to be set forth listed in Section 3.12 4.16 of the Disclosure Schedule (including, for the avoidance of doubt, any Contract that would have been Schedule. With respect to each agreement required to be identified in Section 3.12 4.16 of the Disclosure Schedule had Section 3.12 of Schedule: (w) the Disclosure Schedule been made at the Closing)agreement is legal, all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding binding, enforceable, and in full force and effect, subject, as to enforcement, to ; (x) the Enforceability Exceptions. The true, correct and complete copies of all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and agreement will continue to be subject to ongoing obligations legal, valid, binding, enforceable, and in connection therewithfull force and effect on identical terms following the consummation of the transactions contemplated hereby; (y) no party is in material breach or default under the Business Contractsdefault, and, to the Knowledge of Seller, and no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, that (occurred which with or without notice or lapse of timetime would constitute a breach or default, or permit termination, modification, or acceleration, under the agreement; and (z) will neither the Seller nor ▇▇▇▇▇ nor, to ▇▇▇▇▇'▇ or would reasonably be expected to (i) result in a material violation or breach of the Seller's Knowledge, any other party has repudiated any provision of the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, to the Knowledge of Seller, other communication regarding any actual or possible violation or breach of, or material default under, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights under any Business Contractagreement.
Appears in 1 contract
Sources: Stock Purchase Agreement (New England Business Service Inc)
Contracts. (a) Section 3.12(a) 2.14 of the Disclosure Schedule sets forth, lists the following agreements (written or oral) to which the Company or any Subsidiary is a party as of the date hereof, each Transferred Contract of the following typesthis Agreement:
(i) any agreement (or group of related agreements) for the lease of personal property from or to third parties providing for lease payments in excess of $25,000 per annum or having a collective bargaining agreement or other Contract with any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”)remaining term longer than 12 months;
(ii) a Contract with any Top Customer agreement (as defined below), including or group of related agreements) for the purchase orders covering a payment amount or sale of $2,000,000 products or more, other than for the furnishing or receipt of services (A) in the ordinary course which calls for performance over a period of businessmore than one year, (B) non-disclosure agreementswhich involves more than the sum of $25,000, or (C) sales acknowledgmentsin which the Company or any Subsidiary has granted manufacturing rights, (D) "most favored nation" pricing provisions or exclusive marketing or distribution rights relating to any products or territory or has agreed to purchase orders covering a payment amount minimum quantity of under $2,000,000 goods or (E) statements of work that have been satisfied in fullservices or has agreed to purchase goods or services exclusively from a certain party;
(iii) any agreement establishing a Contract with any Top Vendor (as defined below), including a purchase partnership or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in fulljoint venture;
(iv) a Contract any agreement (or group of related agreements) under which it has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) involving more than $25,000 or under which it has imposed (or may impose) a Security Interest on any Transferred Subsidiary has borrowed any money fromof its assets, tangible or issued any note, bond, debenture or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to or as of the Closing)intangible;
(v) a Contract any agreement concerning the establishment, control, maintenance confidentiality or operation of a partnership, joint venture or other similar agreement or arrangement, in each case that is material to the Businessnoncompetition;
(vi) all material Leasesany employment or consulting agreement;
(vii) a Contract (A) pursuant to which a distributor (including any agreement involving any officer, director or stockholder of the Company or any affiliate (an "Affiliate"), as defined in Rule 12b-2 under the Securities Exchange Act of Seller) has 1934, as amended (the right to distribute or resell products of the Business and (B) involving aggregate payments in excess of $100,000 in the twelve (12)-month period ended January 31"Exchange Act"), 2023thereof;
(viii) any Contract that is agreement under which the consequences of a mortgage, indenture, guaranty, financial, loan default or credit agreement, security agreement or is termination would reasonably be expected to have a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted LiensCompany Material Adverse Effect;
(ix) any Contract that is a hedgingagreement which contains any provisions requiring the Company or any Subsidiary to indemnify any other party thereto (excluding indemnities contained in agreements for the purchase, futures, options sale or other derivative Contract;license of products entered into in the Ordinary Course of Business); and
(x) any Contract for the acquisition other agreement (or group of any Person or any business unit thereof or the disposition of any assets, other than (Arelated agreements) Contracts for acquisitions or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated either involving more than three (3) years prior to the date hereof;
(xi) any royalty $25,000 or similar Contract based on the revenues or profits of any Transferred Subsidiary;
(xii) any Contract of indemnification or guaranty to any Person not made in the ordinary course of business;
(xiii) any Contract with any Governmental Entity;
(xiv) any Contract relating to the acquisition or disposition of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);
(xv) any Contract under which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course Ordinary Course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof;
(xxii) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with respect to actions in such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involves: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable LawsBusiness.
(b) All Contracts set forth The Company has delivered or required made available to be set forth the Buyer a complete and accurate copy of each agreement listed in Section 3.12 2.14 of the Disclosure Schedule Schedule. With respect to each agreement so listed: (includingi) the agreement is legal, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding and enforceable and in full force and effect; (ii) the agreement will continue to be legal, subjectvalid, 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 enforcementthe Closing; and (iii) neither the Company nor any Subsidiary nor, to the Enforceability Exceptions. The true, correct and complete copies of all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) knowledge of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that Company, any other party, is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default under the Business Contractsviolation of, and, to the Knowledge of Seller, no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No under, any such agreement, and no event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, that (with or without notice or lapse of time) will or would reasonably be expected to (i) result in a material violation or breach of any of the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice is pending or, to the Knowledge knowledge of Sellerthe Company, other communication regarding any actual or possible violation or breach ofis threatened, which, after the giving of notice, with lapse of time, or material otherwise, would constitute a breach or default underby the Company or any Subsidiary or, to the knowledge of the Company, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights other party under any Business Contractsuch contract.
Appears in 1 contract
Sources: Merger Agreement (Mac Worldwide Inc)
Contracts. Section 4.25 of the Company Disclosure Letter lists --------- ------------ the following written Contracts to which the Company or any of its Subsidiaries is a party on the date hereof:
(a) Section 3.12(aany agreement (or group of related agreements) for the lease of the Disclosure Schedule sets forth, as of the date hereof, each Transferred Contract of the following types:
(i) a collective bargaining agreement or other Contract with any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”);
(ii) a Contract with any Top Customer (as defined below), including purchase orders covering a payment amount of $2,000,000 or more, other than (A) in the ordinary course of business, (B) non-disclosure agreements, (C) sales acknowledgments, (D) purchase orders covering a payment amount of under $2,000,000 or (E) statements of work that have been satisfied in full;
(iii) a Contract with any Top Vendor (as defined below), including a purchase or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in full;
(iv) a Contract under which any Transferred Subsidiary has borrowed any money from, or issued any note, bond, debenture or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior personal property to or as of the Closing);
(v) a Contract concerning the establishment, control, maintenance or operation of a partnership, joint venture or other similar agreement or arrangement, in each case that is material to the Business;
(vi) all material Leases;
(vii) a Contract (A) pursuant to which a distributor (including from any affiliate of Seller) has the right to distribute or resell products of the Business and (B) involving aggregate Person providing for lease payments in excess of $100,000 in the twelve (12)-month period ended January 31, 2023per annum;
(viiib) any Contract agreement (or group of related agreements) for the purchase or sale of raw materials, commodities, supplies, products, or other personal property, or for the furnishing or receipt of services, the performance of which will extend over a period of more than one year, or involve total consideration in excess of $500,000, and any agreement for the purchase of a chauffeured vehicle service business that is involves total consideration in excess of $500,000;
(c) any agreement (or group of related agreements) under which it has created, incurred, assumed, or guaranteed any Indebtedness in excess of $100,000, including any capital lease obligation, or under which it has imposed a mortgage, indenture, guaranty, financial, loan or credit agreement, security agreement or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets of its assets, tangible or properties of any Transferred Subsidiary, other than Permitted Liensintangible;
(ixd) any Contract that is a hedgingagreement concerning confidentiality, futures, options or other derivative Contract;
(x) any Contract for the acquisition of any Person noncompetition or any other similar agreement which restricts or may hereafter restrict the geographic or operational scope of the business unit thereof of the Company or any of its Subsidiaries or the disposition ability of the Company or any assets, other than (A) Contracts for acquisitions or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior its Subsidiaries to the date hereof;
(xi) any royalty or similar Contract based on the revenues or profits of any Transferred Subsidiary;
(xii) any Contract of indemnification or guaranty to any Person not made in the ordinary course enter into new lines of business;
(xiiie) any Contract with any Governmental Entitycollective bargaining agreement;
(xivf) any Contract relating to agreement for the acquisition or disposition employment of any business or material portion of the assets of any Person (whether by mergerindividual on a full-time, sale of stockpart-time, sale of assets or otherwise);
(xv) any Contract under which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase priceconsulting, or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of basis providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary annual compensation in excess of $1,500,000 75,000 or providing severance benefits;
(g) any agreement under which it has advanced or loaned in the aggregatean amount in excess of $25,000 to any of its directors, whether or not made in officers, and employees outside the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof;
(xxiih) any Contract relating to other agreement (or group of related agreements) the settlement performance of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation involves consideration in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that 250,000. The Company has been delivered or made available to Purchaser Parent a correct and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice complete copy of termination that extends beyond what is required pursuant to applicable Laws, change each written agreement listed in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result Section 4.25 of the consummation of any of the transactions contemplated by this Agreement;
Company ------------ Disclosure Letter (xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with as amended to date). With respect to actions in each such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involvesagreement: (Ai) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individuallyagreement is legal, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Laws.
(b) All Contracts set forth or required to be set forth in Section 3.12 of the Disclosure Schedule (including, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding binding, enforceable, and in full force and effect, subjectexcept that such enforceability (x) may be limited by bankruptcy, as to enforcementinsolvency, to the Enforceability Exceptions. The true, correct and complete copies of all written Business Contracts (including all amendments, supplements, modifications, annexes moratorium or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws other similar laws affecting or relating to the safeguarding enforcement of Personal Data). creditors' rights generally and (y) is subject to general principles of equity; (ii) except as disclosed in Section 3.12(b) 4.25 of the Company ------------ Disclosure Schedule provides an accurate and complete description Letter, the agreement does not require the Consent of the material terms of each Business Contract that other contracting party to the transactions contemplated hereby; (iii) to the Company's knowledge, no party is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default under the Business Contractsdefault, and, to the Knowledge of Seller, and no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, that (occurred which with or without notice or lapse of time) will time or both would reasonably be expected to (i) result in constitute such a material violation breach or breach of any of default, or permit termination, modification, or acceleration, under the provisions of any Business Contractagreement; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give to the Company's knowledge, no party has repudiated any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member provision of the Seller Group agreement; and (including v) no 280G liability under the Transferred Subsidiaries) nor Code would be triggered under such agreement in connection with the transactions contemplated by this Agreement, except as disclosed in Section 4.25 of the Company Disclosure ------------ Letter. There are no oral material agreements to which the Company or any of its affiliates has received any written notice or, to the Knowledge of Seller, other communication regarding any actual or possible violation or breach of, or material default under, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights under any Business ContractSubsidiaries is a party.
Appears in 1 contract
Contracts. (a) Section 3.12(a4(m) of the Disclosure Schedule sets forth, as of the date hereof, each Transferred Contract of lists the following typescontracts, agreements, and other written arrangements to which Target is a party:
(i) a collective bargaining agreement any written arrangement (or other Contract with any labor organization, trade union, works council group of related written arrangements) for the lease of personal property from or similar bargaining representative (a “Collective Agreement”)to third parties providing for lease payments in excess of $20,000 per annum;
(ii) any written arrangement (or group of related written arrangements) for the purchase or sale of raw materials, commodities, supplies, products, or other personal property or for the furnishing or receipt of services which either calls for performance over a Contract with any Top Customer (as defined below), including purchase orders covering a payment amount period of more than one year or involves more than the sum of $2,000,000 or more, 20,000 other than (ACustomer Contracts or Agreements that are set forth on Section 4(m)(x) in of the ordinary course of business, (B) non-disclosure agreements, (C) sales acknowledgments, (D) purchase orders covering a payment amount of under $2,000,000 or (E) statements of work that have been satisfied in full;Disclosure Schedule.
(iii) any written arrangement concerning a Contract with any Top Vendor (as defined below), including a purchase partnership or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in fulljoint venture;
(iv) a Contract any written arrangement (or group of related written arrangements) under which any Transferred Subsidiary it has borrowed any money fromcreated, incurred, assumed, or issued guaranteed (or may create, incur, assume, or guarantee) indebtedness (including capitalized lease obligations) involving more than $20,000 or under which it has imposed (or may impose) a Security Interest on any noteof its assets, bond, debenture tangible or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to or as of the Closing)intangible;
(v) a Contract any written arrangement concerning the establishment, control, maintenance confidentiality or operation of a partnership, joint venture or other similar agreement or arrangement, in each case that is material to the Businessnoncompetition;
(vi) all material Leasesany written arrangement involving any of the Sellers and their Affiliates;
(vii) a Contract (A) pursuant to which a distributor (including any affiliate written arrangement with any of Seller) has the right to distribute or resell products of the Business its directors, officers, and (B) involving aggregate payments in excess of $100,000 employees in the twelve (12)-month period ended January 31nature of a collective bargaining agreement, 2023employment agreement, or severance agreement;
(viii) any Contract that is a mortgage, indenture, guaranty, financial, loan or credit agreement, security agreement or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, written arrangement other than Permitted LiensCustomer Contracts or Agreements that are set forth on Section 4(m)(x) of the Disclosure Schedule under which the consequences of a default or termination could have a Material adverse effect on the assets, Liabilities, business, financial condition, operations or results of operations, or future prospects of Target;
(ix) any Contract that is written arrangement involving a hedging, futures, options governmental entity or other derivative Contractquasi-governmental agency;
(x) any written Customer Contract for the acquisition of any Person or any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereof;Agreement; or
(xi) any royalty other written arrangement (or similar Contract based on the revenues group of related written arrangements) either involving more than $20,000 or profits of any Transferred Subsidiary;
(xii) any Contract of indemnification or guaranty to any Person not made in the ordinary course of business;
(xiii) any Contract with any Governmental Entity;
(xiv) any Contract relating to the acquisition or disposition of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);
(xv) any Contract under which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course Ordinary Course of business for inclusion Business. The Sellers have delivered to Buyer a correct and complete copy of such Trademark each written arrangement listed in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(iSection 4(m) of Regulation S-K under the Securities Act;
Disclosure Schedule (xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiaryas amended to date), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof;
(xxii) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with . With respect to actions in such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involveseach written arrangement so listed: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individuallywritten arrangement is legal, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Laws.
(b) All Contracts set forth or required to be set forth in Section 3.12 of the Disclosure Schedule (including, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding binding, enforceable, and in full force and effect; (B) the written arrangement will continue to be legal, subjectvalid, as binding, enforceable and in full force and effect on the same or substantially similar terms following the Closing; (C) no party is in Material breach or default, and no event has occurred which with notice or lapse of time would constitute a breach or default or permit termination, modification, or acceleration, under the written arrangement; and (D) no party has repudiated any provision of the written arrangement. Target is not a party to enforcementany oral contract, agreement, or other arrangement which, if reduced to the Enforceability Exceptions. The truewritten form, correct and complete copies of all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent would be required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). be listed in Section 3.12(b4(m) of the Disclosure Schedule provides an accurate and complete description of under the material terms of each Business this Section 4(m). No unfilled Material Customer Contract that or Agreement obligating Target to perform services will result in a loss to Target upon completion of performance. Target is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default under the Business Contracts, and, to the Knowledge of Seller, no other a party to any Business Contract is orcontract, since July agreement or other arrangement which was entered into on terms which would not be considered market standard if such arrangement was entered into in an arms-length transaction. None of Target's twenty-five (25) highest grossing revenue customers in the year ended December 31, 20211997 has Materially curtailed or terminated its relationship with it or has indicated that it will stop, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No event has occurred, and, to Materially decrease the Knowledge of Seller, no circumstance or condition exists, that (with or without notice or lapse of time) will or would reasonably be expected to (i) result in a material violation or breach of any of the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, to the Knowledge of Seller, other communication regarding any actual or possible violation or breach rate of, or material default under, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights under any Business Contractbuying services from it.
Appears in 1 contract
Contracts. (a) Section 3.12(a) 2.15 of the Disclosure Schedule sets forth, lists the following agreements (written or oral) to which the Company or any Subsidiary is a party as of the date hereof, each Transferred Contract of the following typesthis Agreement:
(i) a collective bargaining any agreement (or other Contract with any labor organization, trade union, works council group of related agreements) for the lease of personal property from or similar bargaining representative (a “Collective Agreement”)to third parties;
(ii) a Contract with any Top Customer agreement (as defined below)or group of related agreements) for the purchase or sale of products or for the furnishing or receipt of services, including any agreement in which the Company or any Subsidiary has granted “most favored nation” pricing provisions or marketing or distribution rights relating to any products or territory or has agreed to purchase orders covering a payment amount minimum quantity of $2,000,000 goods or more, other than (A) in the ordinary course of business, (B) non-disclosure agreements, (C) sales acknowledgments, (D) services or has agreed to purchase orders covering goods or services exclusively from a payment amount of under $2,000,000 or (E) statements of work that have been satisfied in fullcertain party;
(iii) a Contract with any Top Vendor (as defined below), including a purchase or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in full;
(iv) a Contract under which any Transferred Subsidiary has borrowed any money from, or issued any note, bond, debenture or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to or as of the Closing);
(v) a Contract agreement concerning the establishment, control, maintenance establishment or operation of a partnership, joint venture or limited liability company;
(iv) any agreement (or group of related agreements) under which it has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) or under which it has imposed (or may impose) a Security Interest on any of its assets, tangible or intangible;
(v) any agreement for the disposition of any significant portion of the assets or business of the Company or any Subsidiary (other similar than sales of products in the Ordinary Course of Business) or any agreement for the acquisition of the assets or arrangement, business of any other entity (other than purchases of inventory or components in each case that is material to the Ordinary Course of Business);
(vi) all material Leasesany agreement containing a non-competition covenant;
(vii) a Contract (A) pursuant to which a distributor (including any affiliate of Seller) has the right to distribute employment or resell products of the Business and (B) involving aggregate payments in excess of $100,000 in the twelve (12)-month period ended January 31, 2023consulting agreement;
(viii) any Contract that is a mortgageagreement involving any current or former officer, indenture, guaranty, financial, loan director or credit agreement, security agreement stockholder of the Company or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted Liensan Affiliate thereof;
(ix) any Contract that is agreement under which the consequences of a hedging, futures, options default or other derivative Contracttermination would reasonably be expected to have a Company Material Adverse Effect;
(x) any Contract agreement which contains any provisions requiring the Company or any Subsidiary to indemnify any other party (excluding indemnities contained in agreements for the acquisition purchase, sale or license of any Person or any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory products entered into in the ordinary course Ordinary Course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereof;Business); and
(xi) any royalty other agreement (or similar Contract based on the revenues group of related agreements) either involving more than $25,000 or profits of any Transferred Subsidiary;
(xii) any Contract of indemnification or guaranty to any Person not made in the ordinary course of business;
(xiii) any Contract with any Governmental Entity;
(xiv) any Contract relating to the acquisition or disposition of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);
(xv) any Contract under which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course Ordinary Course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof;
(xxii) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with respect to actions in such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involves: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable LawsBusiness.
(b) All Contracts set forth or required The Company has delivered to be set forth the Buyer a complete and accurate copy of each agreement listed in Section 3.12 2.13 or Section 2.15 of the Disclosure Schedule (includingSchedule. With respect to each agreement so listed, for and, only as to the avoidance of doubt, any Contract that would have been required to be identified agreements listed in Section 3.12 2.15(a)(vi), to the knowledge of the Disclosure Schedule had Section 3.12 of Company: (i) the Disclosure Schedule been made at the Closing)agreement is legal, all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding and enforceable and in full force and effect, subjectexcept that such enforceability may be limited by bankruptcy, insolvency, moratorium and other similar laws affecting or relating to creditors’ rights generally, and is subject to general principles of equity; (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 enforcementthe Closing, except that such enforceability may be limited by bankruptcy, insolvency, moratorium and other similar laws affecting or relating to creditors’ rights generally, and is subject to general principles of equity; and (iii) neither the Company nor any Subsidiary nor, to the Enforceability Exceptions. The true, correct and complete copies of all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) knowledge of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that Company, any other party, is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default under the Business Contractsviolation of, and, to the Knowledge of Seller, no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No under, any such agreement, and no event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, that (with or without notice or lapse of time) will or would reasonably be expected to (i) result in a material violation or breach of any of the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice is pending or, to the Knowledge knowledge of Sellerthe Company, other communication regarding any actual or possible violation or breach ofis threatened, which, after the giving of notice, with lapse of time, or material otherwise, would constitute a breach or default underby the Company or any Subsidiary or, to the knowledge of the Company, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights other party under any Business Contractsuch agreement.
Appears in 1 contract
Sources: Merger Agreement (Red Hat Inc)
Contracts. Except as disclosed on Exhibit 2.15, and to the best of the --------- ------------ Management Shareholders' knowledge:
(a) Section 3.12(aThe Company and each of its Subsidiaries have fulfilled all of their obligations required under the Materials Contracts (as defined below) to have been performed by Company and/or its Subsidiaries on or prior to the Closing Date;
(b) There has not occurred any default under any of the Disclosure Schedule sets forthMaterial Contracts on the part of Company, as any of its Subsidiaries or any other party thereto, nor has any event occurred which, with the giving of notice or the lapse of time, or both, would constitute a default under any of the date hereofMaterial Contracts on the part of Company, each Transferred Contract any of its Subsidiaries or any other party thereto; and
(c) No consent of any party to any of the following types:Material Contracts is required for (i) the execution, delivery or performance of this Agreement or (ii) the consummation of the transactions contemplated hereby.
(d) Exhibit 2.15 contains a complete and accurate list, ------------ and Management Shareholders have delivered to Buyer true and complete copies, of (collectively, the "Material Contracts"):
(i) a collective bargaining agreement each contract that involves performance of services or other Contract with delivery of goods or materials by the Company or any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”)of its Subsidiaries in excess of $25,000;
(ii) a Contract with any Top Customer (as defined below), including purchase orders covering a payment amount of $2,000,000 or more, other than (A) in the ordinary course of business, (B) non-disclosure agreements, (C) sales acknowledgments, (D) purchase orders covering a payment amount of under $2,000,000 or (E) statements of work each contract that have been satisfied in full;
(iii) a Contract with any Top Vendor (as defined below), including a purchase or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in full;
(iv) a Contract under which any Transferred Subsidiary has borrowed any money from, or issued any note, bond, debenture or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to or as of the Closing);
(v) a Contract concerning the establishment, control, maintenance or operation of a partnership, joint venture or other similar agreement or arrangement, in each case that is material to the Business;
(vi) all material Leases;
(vii) a Contract (A) pursuant to which a distributor (including any affiliate of Seller) has the right to distribute or resell products of the Business and (B) involving aggregate payments in excess of $100,000 in the twelve (12)-month period ended January 31, 2023;
(viii) any Contract that is a mortgage, indenture, guaranty, financial, loan or credit agreement, security agreement or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted Liens;
(ix) any Contract that is a hedging, futures, options or other derivative Contract;
(x) any Contract for the acquisition of any Person or any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereof;
(xi) any royalty or similar Contract based on the revenues or profits of any Transferred Subsidiary;
(xii) any Contract of indemnification or guaranty to any Person was not made entered into in the ordinary course of business;
(xiiiiii) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other contract affecting the ownership of, leasing of, title to, use of, or any Contract leasehold or other interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $25,000 and with any Governmental Entity;
(xiv) any Contract relating to the acquisition or disposition terms of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwiseless than one year);
(xviv) any Contract under which the Transferred Subsidiaries have an obligation each licensing agreement or other contract with respect to an “earn out,” contingent purchase pricepatents, trademarks, copyrights or similar contingent payment obligationother intellectual property, including agreements with current or former employees, consultants or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property;
(xviv) each joint venture, partnership and other contract (however named) involving a sharing of profits, losses, costs or liabilities by the Company or any Contract of its Subsidiaries with any other person or entity;
(Avi) each contract containing covenants that restrict or limit in any material respect way purport to restrict the ability business activity of the Company or any Transferred Subsidiary of its Subsidiaries or limit the freedom of the Company or any of its Subsidiaries to engage in the Business any line of business or to compete with respect to the Business with any Person person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Personentity;
(xviivii) each contract providing for payments to or by any Contract that contains a licenseperson or entity based on sales, sublicense purchases or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, profits other than (A) Contracts direct payments for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposesgoods;
(xviiiviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, each contract entered into other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms that contains or provides for such customer relationships previously made available an express undertaking by the Company or any of its Subsidiaries to Purchaser, be responsible for consequential damages;
(Bix) permitted use rights granted each contract for capital expenditures in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose excess of providing the applicable services to a Transferred Subsidiary$25,000 individually, or in the aggregate;
(Dx) non-exclusive licenses each written warranty, guaranty or other similar undertaking with respect to Trademarks entered into contractual performance extended by the Company or any of its Subsidiaries other than in the ordinary course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposesbusiness;
(xixxi) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(ieach amendment, supplement and modification (whether oral or written) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof;
(xxii) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation respect of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with respect to actions in such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involves: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliatesforegoing; and
(xxviixii) each debt agreement (including any material management, consulting, contractor, relocation, repatriation amendment thereto) applicable to the Company or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable LawsSubsidiary.
(b) All Contracts set forth or required to be set forth in Section 3.12 of the Disclosure Schedule (including, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding and in full force and effect, subject, as to enforcement, to the Enforceability Exceptions. The true, correct and complete copies of all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that is not in written form.
(ce) Except as set forth in Section 3.12(cExhibit 2.15, no Shareholder ------------ (and no person related to a Shareholder) has or may acquire any rights under, and no Shareholder has or may become subject to any obligation or liability under, any Material Contract that relates to the business of, or any of the Disclosure Scheduleassets owned or used by, none the Company or any of its Subsidiaries.
(f) Except as set forth on Exhibit 2.15, each Material ------------ Contract identified or required to be identified herein is in full force and effect and is valid and enforceable in accordance with its terms.
(g) Except as set forth on Exhibit 2.15: ------------
(i) The Company and each of its Subsidiaries is, and at all times has been, in full compliance in all material respects with all applicable terms and requirements of each Material Contract under which the Company and each of its Subsidiaries have or had any obligation or liability or by which the Company and each of its Subsidiaries or any of the Transferred assets owned or used by the Company and each of its Subsidiaries nor is or was bound;
(ii) Each other person or entity that has any obligation or liability under any Material Contract under which the Company or any of their affiliates its Subsidiaries have any rights is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach compliance with all applicable terms and requirements of each such Material Contract;
(iii) As to acts and omissions of the Company or default under the Business Contracts, and, to the Knowledge any of Sellerits Subsidiaries or of other persons or entities, no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No event has occurred, and, to the Knowledge of Seller, no occurred or circumstance or condition exists, exists that (with or without notice or lapse of time) will may contravene, conflict with, or would reasonably be expected to (i) result in a material violation or breach of of, or give the Company or any of the provisions of any Business Contract; (ii) give any Person its Subsidiaries or other person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right under, or to accelerate the maturity or performance of any Business Contract; of, or (iv) give any Person the right to cancel, terminate or materially modify modify, any Material Contract; and
(iv) The Company and its Subsidiaries have not given to or declare void received from any Business Contract. No member of other person, at any time in the Seller Group two (including the Transferred Subsidiaries2) nor previous calendar years, any of its affiliates has received any written notice or, to the Knowledge of Seller, or other communication (whether oral or written) regarding any actual or possible alleged violation or breach of, or material default under, any Business Material Contract. No member .
(h) There are no renegotiations of or attempts to renegotiate any material amounts paid or payable to the Seller Group (including the Transferred Subsidiaries) nor Company or any of its affiliates Subsidiaries under current or completed Material Contracts with any person or entities and no such person or entity has waived made written demand for such renegotiation.
(i) The Material Contracts relating to the sale, design, manufacture or provision of products or services by the Company and its Subsidiaries have been entered into in the ordinary course of business and have been entered into without the commission of any act alone or in concert with any other person or entity, or any consideration having been paid or promised, that is or would be in violation of their material rights under any Business Contractlaw.
(j) Except as set forth on Exhibit 2.15, the Company and ------------ its Subsidiaries have not been notified (orally or in writing) that any customer desires to return any product ordered or has failed to pay (or indicated an intent not to pay) for any products or services ordered.
Appears in 1 contract
Sources: Stock Purchase Agreement (Applied Digital Solutions Inc)
Contracts. (a) Section 3.12(a4(n) of the Disclosure Schedule sets forth, as lists the following contracts and other agreements to which any of the date hereof, each Transferred Contract of the following typesCompany or its Subsidiaries is a party:
(i) a collective bargaining any agreement (or other Contract with group of related agreements) for the lease of personal property to or from any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”)Person providing for lease payments in excess of $50,000 per annum;
(ii) any agreement (or group of related agreements) for the purchase or sale of raw materials, commodities, supplies, products, or other personal property, or for the furnishing or receipt of services, the performance of which will extend over a Contract with period of more than one year, result in a material loss to any Top Customer (as defined below)of the Company and its Subsidiaries, including purchase orders covering a payment amount or involve consideration in excess of $2,000,000 or more, other than (A) in the ordinary course of business, (B) non-disclosure agreements, (C) sales acknowledgments, (D) purchase orders covering a payment amount of under $2,000,000 or (E) statements of work that have been satisfied in full50,000;
(iii) any agreement concerning a Contract with any Top Vendor (as defined below), including a purchase partnership or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in fulljoint venture;
(iv) a Contract any agreement (or group of related agreements) under which any Transferred Subsidiary it has borrowed any money fromcreated, incurred, assumed, or issued guaranteed any noteindebtedness for borrowed money, bondor any capitalized lease obligation, debenture in excess of $50,000 or other evidence under which it has imposed a Security Interest on any of indebtedness of borrowed money toits assets, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to tangible or as of the Closing)intangible;
(v) a Contract any agreement concerning the establishment, control, maintenance confidentiality or operation of a partnership, joint venture or other similar agreement or arrangement, in each case that is material to the Businessnoncompetition;
(vi) all material Leasesany agreement with any of the Company and their Affiliates (other than the Company and its Subsidiaries);
(vii) a Contract (A) pursuant to which a distributor (including any affiliate profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or other material plan or arrangement for the benefit of Seller) has the right to distribute its current or resell products of the Business former directors, officers, and (B) involving aggregate payments in excess of $100,000 in the twelve (12)-month period ended January 31, 2023employees;
(viii) any Contract that is a mortgage, indenture, guaranty, financial, loan or credit collective bargaining agreement, security agreement or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted Liens;
(ix) any Contract that is agreement for the employment of any individual on a hedgingfull-time, futurespart-time, options consulting, or other derivative Contractbasis providing annual compensation in excess of $50,000 or providing severance benefits;
(x) any Contract for agreement under which it has advanced or loaned any amount to any of its directors, officers, and employees outside the acquisition Ordinary Course of any Person or any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereofBusiness;
(xi) any royalty agreement under which the consequences of a default or similar Contract based termination could have a material adverse effect on the revenues business, financial condition, operations, results of operations, or profits future prospects of any Transferred Subsidiary;of the Company and its Subsidiaries; or
(xii) any Contract other agreement (or group of indemnification or guaranty to any Person not made in related agreements) the ordinary course performance of business;
(xiii) any Contract with any Governmental Entity;
(xiv) any Contract relating to the acquisition or disposition of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);
(xv) any Contract under which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary involves consideration in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which 50,000. The Company has material ongoing obligations following the date hereof;
(xxii) any Contract relating delivered to the settlement Parent a correct and complete copy of any Proceeding pursuant each written agreement (as amended to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiiidate) (Alisted in §4(n) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with Disclosure Schedule. With respect to actions in each such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involvesagreement,: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individuallyagreement is legal, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Laws.
(b) All Contracts set forth or required to be set forth in Section 3.12 of the Disclosure Schedule (including, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding binding, enforceable, and in full force and effect, subject, as to enforcement, to ; (B) the Enforceability Exceptions. The true, correct and complete copies of all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and agreement will continue to be subject to ongoing obligations legal, valid, binding, enforceable, and in connection therewithfull force and effect following the consummation of the transactions contemplated hereby; (C) no party is in material breach or default under the Business Contractsdefault, and, to the Knowledge of Seller, and no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, that (occurred which with or without notice or lapse of time) will or time would reasonably be expected to (i) result in constitute a material violation breach or breach of default, or permit termination, modification, or acceleration, under the agreement; and (D) no party has repudiated any provision of the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, to the Knowledge of Seller, other communication regarding any actual or possible violation or breach of, or material default under, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights under any Business Contractagreement.
Appears in 1 contract
Contracts. (a) Section 3.12(a) of the The Disclosure Schedule sets forth, as of the date hereof, each Transferred Contract of lists the following typescontracts and other agreements to which the Company is a party:
(i) a collective bargaining any agreement (or other Contract with group of related agreements) for the lease of personal property (including without limitation software) to or from any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”)Person providing for lease payments in excess of $10,000 per annum;
(ii) any agreement (or group of related agreements) for the purchase or sale of supplies, products or other personal property, or for the furnishing or receipt of services, the performance of which will extend over a Contract with any Top Customer (as defined below)period of more than one year, including purchase orders covering result in a payment amount material loss to the Company or, except for Contracts made in the Ordinary Course of Business, involve consideration in excess of $2,000,000 or more, other than (A) in the ordinary course of business, (B) non-disclosure agreements, (C) sales acknowledgments, (D) purchase orders covering a payment amount of under $2,000,000 or (E) statements of work that have been satisfied in full10,000;
(iii) any agreement concerning a Contract with any Top Vendor (as defined below), including a purchase partnership or service order covering a payment amount of $1,000,000 joint venture or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in fullarrangement to share profits;
(iv) a Contract any agreement (or group of related agreements) under which any Transferred Subsidiary it has borrowed any money fromcreated, incurred, assumed, or issued guaranteed any noteindebtedness for borrowed money, bondor any capitalized lease obligation, debenture in excess of $10,000 or other evidence under which it has imposed a Security Interest on any of indebtedness of borrowed money toits assets, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to tangible or as of the Closing)intangible;
(v) a Contract any agreement concerning the establishment, control, maintenance confidentiality or operation of a partnership, joint venture or other similar agreement or arrangement, in each case that is material to the Businessnon-competition;
(vi) all material Leasesany agreement with any of the Seller and their Affiliates (other than the Company) or any members of their immediate families;
(vii) a Contract (A) pursuant to which a distributor (including any affiliate profit sharing, share option, share purchase, share appreciation, deferred compensation, severance, or other plan or arrangement for the benefit of Seller) has the right to distribute its current or resell products of the Business former directors, officers, and (B) involving aggregate payments in excess of $100,000 in the twelve (12)-month period ended January 31, 2023employees;
(viii) any Contract that is a mortgage, indenture, guaranty, financial, loan or credit collective bargaining agreement, security agreement or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted Liens;
(ix) any Contract that is a hedgingagreement under which it has advanced or loaned any amount to any of its directors, futuresofficers, options and employees or other derivative Contractany members of their immediate families, excluding claims for reimbursement of expenses incurred in the Ordinary Course of Business;
(x) any Contract for agreement under which the acquisition consequences of any Person a default or any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereof;termination could have a Material Adverse Effect; or
(xi) any royalty other agreement (or similar Contract based on the revenues or profits group of any Transferred Subsidiary;
(xiirelated agreements) any Contract of indemnification or guaranty to any Person which was not made in the ordinary course of business;
(xiii) any Contract with any Governmental Entity;
(xiv) any Contract relating to the acquisition or disposition of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);
(xv) any Contract under which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member Ordinary Course of the Business. The Seller Group or any has delivered to the Buyer a correct and complete copy of its affiliates each written agreement listed in the Disclosure Schedule (other than a Transferred Subsidiaryas amended to date), on and to the one handKnowledge of the Seller, and any Transferred Subsidiaries, on a written summary of the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary in excess terms of $1,500,000 all oral agreements referred to in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof;
(xxii) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with Disclosure Schedule. With respect to actions in each such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involvesagreement: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individuallyagreement is legal, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Laws.
(b) All Contracts set forth or required to be set forth in Section 3.12 of the Disclosure Schedule (including, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding binding, enforceable, and in full force and effect, subject, as to enforcement, subject to the Enforceability Exceptions. The true, correct and complete copies of all written Business Contracts Exception; (including all amendments, supplements, modifications, annexes or schedules theretoB) have been made available to Purchaser (subject to redactions to obtaining the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that is not consents indicated in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and agreement will continue to be subject to ongoing obligations legal, valid, binding, enforceable, and in connection therewithfull force and effect on identical terms immediately following the consummation of the transactions contemplated hereby except for the Exception; (C) the Company is not in material breach or default under the Business Contracts, and, to the Knowledge of the Seller, no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No event has occurred, and, of the agreement; (D) to the Knowledge of the Seller, no circumstance or condition exists, that (event has occurred which with or without notice or lapse of timetime would constitute a breach or default, or permit termination, modification, or acceleration, under the agreement; and (E) will or would reasonably be expected to (i) result in a material violation or breach of any of the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, to the Knowledge of the Seller, other communication regarding no party has repudiated any actual or possible violation or breach of, or material default under, any Business Contract. No member provision of the Seller Group (including agreement. Without limiting the Transferred Subsidiaries) nor any generality of the foregoing, the Company is in compliance with all covenants under all agreements with its affiliates has waived any of their material rights under any Business Contractbank and other lenders except as referenced in the Disclosure Schedule.
Appears in 1 contract
Sources: Share Purchase Agreement (BPO Management Services, Inc.)
Contracts. (a) Section 3.12(aSchedule 4.15(a) of the Disclosure Schedule sets forth, as of the date hereof, each Transferred Contract of lists the following typesContracts to which NorMedix is a party:
(i) a collective bargaining agreement any Contract (or other Contract with group of related Contracts) for the lease of personal property to or from any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”)Person providing for lease payments in excess of $5,000 per annum;
(ii) any Contract (or group of related Contracts) for the purchase or sale of personal property, or for the furnishing or receipt of services, the performance of which will extend over a Contract with any Top Customer (as defined below), including purchase orders covering a payment amount period of more than one year or involve consideration in excess of $2,000,000 or more, other than (A) in the ordinary course of business, (B) non-disclosure agreements, (C) sales acknowledgments, (D) purchase orders covering a payment amount of under $2,000,000 or (E) statements of work that have been satisfied in full5,000;
(iii) any Contract concerning a Contract with any Top Vendor (as defined below), including a purchase partnership or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in fulljoint venture;
(iv) a any Contract (or group of related Contracts) under which any Transferred Subsidiary NorMedix has borrowed any money fromcreated, incurred, assumed, or issued guaranteed any noteindebtedness for borrowed money, bondor any capitalized lease obligation, debenture in excess of $2,500 or other evidence under which it has imposed a Lien on any of indebtedness of borrowed money toits assets, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to tangible or as of the Closing)intangible;
(v) a any Contract concerning confidentiality or non-competition other than non-disclosure agreements entered into in the establishment, control, maintenance or operation Ordinary Course of a partnership, joint venture or other similar agreement or arrangement, in each case that is material to the Business;
(vi) all material Leasesany Contract under which NorMedix is currently or potentially obligated to share revenues or income with any other Person;
(vii) any Contract with a Contract (A) pursuant to which a distributor (including Seller or any affiliate of Seller) has the right to distribute or resell products of the Business and (B) involving aggregate payments in excess of $100,000 in the twelve (12)-month period ended January 31, 2023its Affiliates;
(viii) any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or other plan or Contract that is a mortgagefor the benefit of its current or former directors, indentureofficers, guaranty, financial, loan or credit agreement, security agreement or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted Liensemployees;
(ix) any Contract that is a hedging, futures, options or other derivative collective bargaining Contract;
(x) any Contract for the acquisition employment of any Person individual on a full-time, part-time, consulting, or any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereofbasis;
(xi) any royalty Contract under which NorMedix has advanced or similar Contract based on the revenues loaned any amount to any of its directors, officers, or profits of any Transferred Subsidiaryemployees (other than travel advances);
(xii) any Contract under which the consequences of indemnification a default or guaranty to any Person not made in the ordinary course of businesstermination would have a Material Adverse Effect;
(xiii) any Contract with under which NorMedix has granted any Governmental EntityPerson any registration rights (including demand and piggyback registration rights);
(xiv) any Contract relating (other than Contracts with customers in the Ordinary Course of Business) under which NorMedix has agreed to the acquisition indemnify any other Person for any loss, expense or disposition of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise)Liability;
(xv) except as set forth in SECTION 4.15(a)(xi), any Contract under which NorMedix has advanced or loaned any other Person amounts in the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;aggregate exceeding $5,000; or
(xvi) any other Contract (A) containing covenants that restrict or limit in any material respect the ability group of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materialsrelated Contracts), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list understanding or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available dealing that will require NorMedix to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) make any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary payment in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof;
(xxii) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations 2,500 after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with respect to actions in such capacity);
(xxvi) any Contract entered into since January 31, 2023 Closing (other than Employee Benefit Plans) that contemplates or involves: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance Ordinary Course of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable LawsBusiness).
(b) All Contracts set NorMedix has delivered to SurModics a correct and complete copy of each written Contract (as amended to date) listed in Schedule 4.15(a) and a written summary setting forth or required the terms and conditions of each oral Contract referred to be set forth in Section 3.12 of Schedule 4.15(a). With respect to each such Contract: (i) the Disclosure Schedule (includingContract is legal, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding binding, enforceable (except that the enforcement thereof may be limited by the Enforcement Limitations) and in full force and effect, subject, as to enforcement, to ; (ii) the Enforceability Exceptions. The true, correct and complete copies of all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and will continue to be subject legal, valid, binding, enforceable, (except that the enforcement thereof may be limited by the Enforcement Limitations) and in full force and effect on identical terms following the consummation of the Transactions; (iii) neither NorMedix nor, to ongoing obligations in connection therewith) NorMedix’s Knowledge, any other party is in material breach or default under the Business Contractsdefault, and, to the Knowledge of Seller, and no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, occurred that (with or without notice or lapse of time) will or time would reasonably be expected to (i) result in constitute a material violation breach or breach of any of default, or permit termination, modification, or acceleration, under the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or and (iv) give neither NorMedix nor, to NorMedix’s Knowledge, any Person the right to cancel, terminate or materially modify or declare void other party has repudiated any Business Contract. No member provision of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, to the Knowledge of Seller, other communication regarding any actual or possible violation or breach of, or material default under, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights under any Business Contract.
Appears in 1 contract
Contracts. (a) Section 3.12(a3(p) of the Disclosure Schedule sets forth, as of the date hereof, each Transferred Contract of lists the following typescontracts and other agreements to which Seller is a party that pertain to the Business or the Acquired Assets:
(i) a collective bargaining any agreement (or other Contract with group of related agreements) for the lease of personal property to or from any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”)Person providing for lease payments in excess of US$50,000 per annum;
(ii) any agreement (or group of related agreements) for the purchase or sale of raw materials, commodities, supplies, products, or other personal property, or for the furnishing or receipt of services, the performance of which will extend over a Contract with any Top Customer (as defined below)period of more than one year, including purchase orders covering a payment amount or involve consideration in excess of $2,000,000 or more, other than (A) in the ordinary course of business, (B) non-disclosure agreements, (C) sales acknowledgments, (D) purchase orders covering a payment amount of under $2,000,000 or (E) statements of work that have been satisfied in fullUS$50,000;
(iii) any agreement concerning a Contract with any Top Vendor (as defined below)strategic alliance, including a purchase partnership or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in fulljoint venture;
(iv) a Contract any agreement (or group of related agreements) under which any Transferred Subsidiary Seller has borrowed any money fromcreated, incurred, assumed, or issued guaranteed any noteindebtedness for borrowed money, bondor any capitalized lease obligation, debenture in excess of US$50,000 or other evidence under which it has imposed a Lien on any of indebtedness of borrowed money toits assets, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to tangible or as of the Closing)intangible;
(v) a Contract any agreement concerning non-competition, or any material agreement concerning confidentiality, other than the establishment, control, maintenance or operation of a partnership, joint venture or other similar agreement or arrangement, in each case that is material to Partner Agreements and the BusinessConfidentiality Agreements;
(vi) all any material Leasesagreement involving any Affiliate of Seller (including any Subsidiaries);
(vii) a Contract (A) pursuant to which a distributor (including any affiliate of Seller) has profit sharing, deferred compensation, severance, or other plan for the right to distribute or resell products benefit of the Business officers and (B) involving aggregate payments in excess employees of $100,000 in the twelve (12)-month period ended January 31, 2023Seller or any of its Affiliates;
(viii) any Contract that is a mortgage, indenture, guaranty, financial, loan or credit collective bargaining agreement, security agreement or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted Liens;
(ix) any Contract that is agreement for the employment of any individual on a hedgingfull-time basis; and any agreement for the employment of any individual on a part-time, futuresconsulting, options or other derivative Contractbasis, in excess of US$50,000 per year or not terminable on 30 days' notice or less or providing material severance benefits;
(x) any Contract for agreement under which it has advanced or loaned any amount to any of the acquisition directors, officers, and employees of any Person Seller or any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereofits Affiliates;
(xi) any royalty agreement under which the consequences of a default or similar Contract based on the revenues or profits of any Transferred Subsidiarytermination could have a Material Adverse Effect;
(xii) any Contract of indemnification agreement under which Seller has advanced or guaranty to loaned any other Person not made amounts in the ordinary course of businessaggregate exceeding US$10,000;
(xiii) any Contract with any Governmental Entityagreement (or group of related agreements) not otherwise referred to in this §3(p) the performance of which involves consideration in excess of US$50,000;
(xiv) any Contract relating to the acquisition or disposition of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);
(xv) any Contract under which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof;
(xxii) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with respect to actions in such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involves: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliatesPartner Agreements; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Laws.
(b) All Contracts set forth or required to be set forth in Section 3.12 of the Disclosure Schedule (including, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding and in full force and effect, subject, as to enforcement, to the Enforceability Exceptions. The true, correct and complete copies of all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default under the Business Contracts, and, to the Knowledge of Seller, no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, that (with or without notice or lapse of time) will or would reasonably be expected to (i) result in a material violation or breach of any of the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, to the Knowledge of Seller, other communication regarding any actual or possible violation or breach of, or material default under, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights under any Business Contract.
Appears in 1 contract
Sources: Asset Purchase Agreement (Napro Biotherapeutics Inc)
Contracts. (a) Section 3.12(a) 2.15 of the Disclosure Schedule sets forth, lists the following agreements (written or oral) to which the Company or any Subsidiary is a party as of the date hereof, each Transferred Contract of the following typesthis Agreement:
(i) any agreement (or group of related agreements) for the lease of personal property from or to third parties providing for lease payments in excess of $50,000 per annum or having a collective bargaining agreement or other Contract with any labor organization, trade union, works council or similar bargaining representative remaining term longer than one (a “Collective Agreement”)1) year;
(ii) a Contract with any Top Customer agreement (as defined below), including or group of related agreements) for the purchase orders covering a payment amount or sale of $2,000,000 products or more, other than for the furnishing or receipt of services (A) in the ordinary course which calls for performance over a period of businessmore than one year, (B) non-disclosure agreementswhich involves more than the sum of $50,000, or (C) sales acknowledgmentsin which the Company or any Subsidiary has granted manufacturing rights, (D) “most favored nation” pricing provisions or marketing or distribution rights relating to any products or territory or has agreed to purchase orders covering a payment amount minimum quantity of under $2,000,000 goods or (E) statements of work that have been satisfied in fullservices or has agreed to purchase goods or services exclusively from a certain party;
(iii) any agreement establishing a Contract with any Top Vendor (as defined below), including a purchase partnership or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in fulljoint venture;
(iv) a Contract any agreement (or group of related agreements) under which it has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) or under which it has imposed (or may impose) a Security Interest on any Transferred Subsidiary has borrowed any money fromof its assets, tangible or issued any note, bond, debenture or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to or as of the Closing)intangible;
(v) any agreement concerning confidentiality or non-competition or which places a Contract concerning limitation on the establishment, control, maintenance method of conducting or operation the scope of a partnership, joint venture or other similar agreement or arrangement, in each case that is material to the BusinessCompany’s business;
(vi) all material Leasesany employment, consulting, severance, collective bargaining, deferred compensation or similar agreement;
(vii) a Contract (A) pursuant to which a distributor (including any affiliate of Seller) has the right to distribute agreement involving any officer, director or resell products stockholder of the Business and Company or any Affiliate (B) involving aggregate payments in excess of $100,000 in the twelve (12)-month period ended January 31as hereinafter defined), 2023thereof;
(viii) any Contract that is agreement under which the consequences of a mortgage, indenture, guaranty, financial, loan default or credit agreement, security agreement or is termination would reasonably be expected to have a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted LiensCompany Material Adverse Effect;
(ix) any Contract that is a hedgingagreement which contains any provisions requiring the Company or any Subsidiary to indemnify any other party thereto (excluding indemnities contained in agreements for the purchase, futures, options sale or other derivative Contract;license of products entered into in the Ordinary Course of Business); and
(x) any Contract for agreement under which the acquisition amount payable to or by the Company or any Subsidiary is dependent on the revenue, income or other measure of financial performance of any Person or any business unit thereof or Person.
(b) The Company has delivered to the disposition Buyer a complete and accurate copy of each written agreement and an accurate summary of the material details of any assetsoral agreement listed in Section 2.13, other than 2.15 or 2.22 of the Disclosure Schedule. With respect to each agreement so listed: (Ai) Contracts for acquisitions or dispositions of inventory the agreement is legal, valid, binding and enforceable and in full force and effect and the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years 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 date hereof;
(xi) any royalty or similar Contract based on the revenues or profits of any Transferred Subsidiary;
(xii) any Contract of indemnification or guaranty to any Person not made in the ordinary course of business;
(xiii) any Contract with any Governmental Entity;
(xiv) any Contract relating to the acquisition or disposition of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);
(xv) any Contract under which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof;
(xxii) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will except that enforcement thereof may be payable limited by bankruptcy, insolvency or due as a result similar laws affecting the enforcement of creditor’s rights in effect from time to time and general principles of equity; and (ii) neither the Company nor any Subsidiary nor, to the knowledge of the consummation of Company, any other party, is in breach or violation of, or default under, any such agreement, and no event has occurred, is pending or, to the knowledge of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees Company, is threatened, which, after the giving of notice, with lapse of time, or expenses of any outside accountantsotherwise, external legal counsel would constitute a breach or other outside advisors retained default by the Seller Guarantor Company or its affiliates in connection with this Agreement any Subsidiary or, to the knowledge of the Company, any other party under such contract. The Company has not received any written notice to the effect that, and to the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) knowledge of the Company there has been no oral notification that, any Contract which provides for indemnification of party to any officer, director, manager or employee by a Transferred Subsidiary (with respect to actions in such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involves: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Laws.
(b) All Contracts set forth or required to be set forth in listed on Section 3.12 2.15 of the Disclosure Schedule (including, for the avoidance will not fulfill all of doubt, any Contract that would have been required to be identified its obligations thereunder in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at all material respects after the Closing). As used herein, all purchase orders issued by or to a Top Customer or Top Vendor “Affiliate” shall have the meaning specified in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 Rule 12b-2 under the Securities Exchange Act of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 1934, as amended (such Contracts, the “Business ContractsExchange Act”) are valid, binding and in full force and effect, subject, as to enforcement, to the Enforceability Exceptions. The true, correct and complete copies of all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default under the Business Contracts, and, to the Knowledge of Seller, no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, that (with or without notice or lapse of time) will or would reasonably be expected to (i) result in a material violation or breach of any of the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, to the Knowledge of Seller, other communication regarding any actual or possible violation or breach of, or material default under, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights under any Business Contract.
Appears in 1 contract
Contracts. Section 3.18 of the Sellers’ Disclosure Letter lists the following Contracts under which Sellers or any of their respective Subsidiaries are obligated or by which Sellers or any of their assets are bound (other than Contracts with Buyer or Clarient):
(a) Section 3.12(aany Contract (or group of related Contracts) of the Disclosure Schedule sets forth, as of the date hereof, each Transferred Contract of the following types:
that (i) a collective bargaining agreement involves the future payment of greater than $50,000 per annum or which extends for more than one (1) year, (ii) involves any payment or obligation to any Affiliate of Sellers or any of their Subsidiaries other than in the Ordinary Course of Business, (iii) involves the sale, lease, license or other Contract disposition of any material assets (including intangible property) or (iv) involves any license of Sellers’ Intellectual Property (other than in connection with any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”sales of products and services in the Ordinary Course of Business);
(iib) any Contract under which the consequences of a Contract with any Top Customer (as defined below), including purchase orders covering default or termination would reasonably be expected to have a payment amount of $2,000,000 or more, other than (A) in the ordinary course of business, (B) non-disclosure agreements, (C) sales acknowledgments, (D) purchase orders covering a payment amount of under $2,000,000 or (E) statements of work that have been satisfied in fullSellers’ Material Adverse Effect;
(iiic) a any Contract with any Top Vendor (as defined below), including a or group of related Contracts) for the purchase or service order covering a payment amount sale of commodities, supplies, products, or other personal property, or for the furnishing or receipt of services, the performance of which will involve consideration in excess of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in full50,000;
(ivd) a Contract under which any Transferred Subsidiary has borrowed any money from, or issued any note, bond, debenture or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to concerning a partnership or as of the Closing)joint venture;
(ve) any Contract (or group of related Contracts) under which Sellers have created, incurred, assumed, or guaranteed any indebtedness for borrowed money or any capitalized lease obligation in excess of $50,000 or under which a Lien has been imposed on any of the Purchased Assets;
(f) any Contract concerning to which Sellers or any of their Subsidiaries are a party or otherwise bound and which contains covenants of Sellers or any Subsidiary not to compete or engage in the establishment, control, maintenance or operation of a partnership, joint venture or other similar agreement or arrangementBusiness, in each case that is material any geographic area or with any Person or covenants of any other person not to compete with Sellers or any of their Subsidiaries or engage in the Business;
(vig) all material Leasesany executory Contract under which Sellers or any of their Subsidiaries have advanced or loaned any amount to any of their respective Employees;
(viih) a any executory Contract (A) pursuant to which a distributor (including Sellers or any affiliate of Seller) their Subsidiaries are obligated to provide maintenance, service, support or training for its services or products, together with the amounts of deferred revenue associated with the executory support and service obligations under such Contracts, all of which has been accrued in the right to distribute Current Balance Sheet in accordance with GAAP, consistently applied or resell products has arisen since the date of the Business and (B) involving aggregate payments in excess of $100,000 Current Balance Sheet in the twelve (12)-month period ended January 31, 2023Ordinary Course of Business;
(viiii) any Contract that is a mortgage, indenture, guaranty, financial, loan revenue or credit agreement, security agreement or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted Liens;
(ix) any Contract that is a hedging, futures, options or other derivative profit participation Contract;
(xj) any license or Contract under which Sellers or any of their respective Subsidiaries (i) have granted to any Person rights with respect to any Sellers’ Intellectual Property (other than end user licenses in connection with sales of products and services in the Ordinary Course of Business), (ii) have agreed to encumber, not assert, transfer or sell rights in or with respect to any Sellers’ Intellectual Property, (iii) are parties or otherwise bound and which provides for the development of any Technology or Sellers’ Intellectual Property, independently or jointly or (iv) are parties or otherwise bound and pursuant to which Sellers or any of their respective Subsidiaries acquired or are authorized to use any Intellectual Property Rights of any current or former employee or other Person;
(k) any Contract for the acquisition purchase or sale of any Person materials, supplies, equipment, merchandise or services that contains an escalation clause or that obligates Sellers or any business unit thereof of their Subsidiaries to purchase all or the disposition substantially all of any assetsits requirements of a particular product or service from a supplier or to make periodic minimum purchases of a particular product or service from a supplier, other than (A) Contracts for acquisitions or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated which is not terminable on not more than three 30 days notice (3) years prior to the date hereofwithout penalty or premium);
(xi) any royalty or similar Contract based on the revenues or profits of any Transferred Subsidiary;
(xii) any Contract of indemnification or guaranty to any Person not made in the ordinary course of business;
(xiiil) any Contract with any Governmental Entitycustomers or suppliers for the sharing of fees, the rebating of charges or other similar arrangements;
(xivm) any Contract obligating Sellers or any of their Subsidiaries to deliver maintenance services or future product enhancements (in each case other than agreements with end users in connection with sales of products and services in the Ordinary Course of Business) or containing a “most favored nation” pricing clause;
(n) any Contract obligating Sellers to provide source code to any third party for Sellers’ Intellectual Property;
(o) any Contract granting exclusive distribution rights with respect to any part of the Business;
(p) any Contract relating to the acquisition or disposition by Sellers of any operating business or material portion of the assets capital stock of any other person;
(q) any Contract requiring the payment to any Person of a brokerage or sales commission or a finder’s or referral fee (whether by merger, sale other than to ▇▇▇▇▇▇▇ ▇▇▇▇ Partners and arrangements to pay commissions or fees to employees in the Ordinary Course of stock, sale of assets or otherwiseBusiness);
(xvr) any Contract under material to Sellers for which performance has not been completed that is not listed in clauses (a) through (q) and not made in the Transferred Subsidiaries Ordinary Course of Business. Sellers have delivered to Buyer a correct and complete copy of each written Contract (as amended to date) listed in Section 3.18 of the Sellers’ Disclosure Letter and a written summary setting forth the terms and conditions of each oral Contract referred to in Section 3.18 of the Sellers’ Disclosure Letter. With respect to each such Contract that constitutes an obligation Assumed Contract: (A) the agreement, with respect to an “earn out,” contingent purchase priceSellers or any of their Subsidiaries and, or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit to Sellers’ Knowledge, all other parties thereto, is legal, valid, binding, enforceable, and in any material respect the ability of any Transferred Subsidiary to engage full force and effect in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employeesall respects; (B) involving none of Sellers, any of their respective Subsidiaries nor, to Sellers’ Knowledge, any other party is in material breach or default, and no event has occurred, which with notice or lapse of time would constitute a material breach or default, or permit termination, modification, or acceleration, under the grant of “most favored nation” status to any PersonContract; or and (C) granting neither Sellers nor any exclusive rights to sell or distribute of their Subsidiaries have received notice that any product or services party has repudiated any provision of the Business Contract. Except as set forth on Section 3.6 of the Sellers’ Disclosure Letter, Sellers have obtained or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any such Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others as are required thereunder in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course of business consistent connection with past practices, which has material ongoing obligations following the date hereof;
(xxii) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) Agreement or, with respect to any Assumed Contract, necessary for such Assumed Contract that provides that fees to remain in effect without modification after the Closing. Except as set forth on Section 3.6 or expenses Section 3.18 of the Sellers’ Disclosure Letter, following the Closing, Buyer will be permitted to exercise all of Sellers’ and any outside accountants, external legal counsel or other outside advisors retained by of its Subsidiaries’ rights under the Seller Guarantor or its affiliates in connection with this Agreement and Assumed Contracts to the same extent Sellers would have been able to had the transactions contemplated hereby will be owed by this Agreement not occurred and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with respect to actions in such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involves: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance any additional amounts or consideration other termination than ongoing fees, royalties or payments which Sellers or benefits beyond that which is required by applicable Laws.
(b) All Contracts set forth or such Subsidiary would otherwise be required to be set forth in Section 3.12 of the Disclosure Schedule (including, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding and in full force and effect, subject, as to enforcement, to the Enforceability Exceptions. The true, correct and complete copies of all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that is not in written formpay.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default under the Business Contracts, and, to the Knowledge of Seller, no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, that (with or without notice or lapse of time) will or would reasonably be expected to (i) result in a material violation or breach of any of the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, to the Knowledge of Seller, other communication regarding any actual or possible violation or breach of, or material default under, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights under any Business Contract.
Appears in 1 contract
Contracts. (a) Section 3.12(a) 2.16 of the Disclosure Schedule sets forth, lists the following agreements (written or oral) relating to the ENI Business as of the date hereof, each Transferred Contract of the following typesthis Agreement:
(i) a collective bargaining any agreement (or other Contract with group of related agreements) for the lease of personal property from or to third parties providing for lease payments in excess of $50,000 in any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”)twelve-month period;
(ii) a Contract with any Top Customer agreement (as defined belowor group of related agreements), including purchase orders covering a payment amount of $2,000,000 or more, other than purchase orders entered into in the Ordinary Course of Business, for the purchase or sale of products or for the furnishing or receipt of services (A) in the ordinary course which calls for performance over a period of businessmore than one year, or (B) non-disclosure agreementswhich cannot be terminated upon less than sixty (60) days notice without the payment of a termination fee and which involves, (C) sales acknowledgmentsor may reasonably be expected to involve, (D) purchase orders covering a payment amount more than the sum of under $2,000,000 or (E) statements of work that have been satisfied in full50,000;
(iii) a Contract any agreement (A) with any Top Vendor of the ENI Business' top 20 customers based on revenues generated during the last full fiscal year, in which any Existing ENI Subsidiary, any Company or any Company Subsidiary has granted manufacturing rights or "most favored nation" pricing provisions or (as defined below), including B) in which any Existing ENI Subsidiary has agreed to purchase a minimum quantity of goods or services exceeding $50,000 in any twelve-month period or has agreed to purchase goods or service order covering services exceeding $50,000 in any twelve-month period exclusively from a payment amount of $1,000,000 or morecertain party, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount entered into in the Ordinary Course of under $1,000,000 or (D) statements of work that have been satisfied in fullBusiness;
(iv) a Contract under which any Transferred Subsidiary has borrowed any money fromsales representative, distribution or issued any note, bond, debenture similar sales or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to or as of the Closing)distribution agreement;
(v) a Contract any agreement concerning the establishment, control, maintenance establishment or operation of a partnership, joint venture or other similar agreement or arrangement, in each case that is material to the Businesslimited liability company;
(vi) all material Leasesany agreement (or group of related agreements) under which the ENI Business has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) involving more than $50,000 or under which it will have imposed (or may impose) a Security Interest on any of its assets, tangible or intangible;
(vii) any agreement relating to capital expenditures or involving future payments, or a Contract (A) pursuant to which a distributor (including series of related expenditures or payments, exceeding $50,000 in any affiliate of Seller) has the right to distribute or resell products of the Business and (B) involving aggregate payments in excess of $100,000 in the twelve (12)-month period ended January 31, 2023twelve-month period;
(viii) any Contract that is a mortgage, indenture, guaranty, financial, loan or credit agreement, security agreement or is a Contract to which for the disposition of any Transferred Subsidiary is a party creating or granting any Lien on any significant portion of the assets or properties business of the ENI Business (other than sales of products in the Ordinary Course of Business) or any agreement for the acquisition of the assets or business of any Transferred Subsidiary, other entity (other than Permitted Lienspurchases of inventory or components in the Ordinary Course of Business);
(ix) any Contract that is a hedging, futures, options agreement containing any covenants or other derivative Contractrestrictions limiting the freedom of the ENI Business from engaging in any line of business in competition with any persons;
(x) any Contract for the acquisition of any Person employment, consulting or any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereofseverance agreement;
(xi) any royalty agreement involving any current or similar Contract based on the revenues former officer, director or profits stockholder of any Transferred Existing ENI Subsidiary, any Company, any Company Subsidiary or an Affiliate of any thereof;
(xii) any Contract agreement under which the consequences of indemnification a default or guaranty termination would reasonably be expected to any Person not made in the ordinary course of businesshave a Company Material Adverse Effect;
(xiii) any Contract with agreement which contains any Governmental Entityprovisions requiring any Company or any Company Subsidiary to indemnify any other party (excluding indemnities contained in agreements for the purchase, sale or license of products entered into in the Ordinary Course of Business);
(xiv) any Contract relating agreement pursuant to which Intellectual Property is licensed, assigned or transferred from a third party for use in the acquisition ENI Business (other than "shrink wrap" or disposition of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwisesimilar agreements granting rights to off-the-shelf software programs);
(xv) any Contract under agreement pursuant to which Emerson, an Asset Seller, an Existing ENI Subsidiary, a Company or ▇ ▇▇▇▇▇ny Subsidiary has licensed, assigned or otherwise transferred to a third party Intellectual Property used in the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;ENI Business; and
(xvi) any Contract other agreement (A) containing covenants that restrict or limit in any material respect the ability group of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Propertyrelated agreements), other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks purchase orders entered into in the ordinary course Ordinary Course of business for inclusion of such Trademark in a customer list Business, either involving more than $50,000 or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary in excess of $1,500,000 not entered into in the aggregate, whether or not made in the ordinary course Ordinary Course of business consistent with past practices, which has material ongoing obligations following the date hereof;
(xxii) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with respect to actions in such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involves: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable LawsBusiness.
(b) All Contracts set forth or required Emerson has made available to be set forth the Buyer a complete and accurate copy of ▇▇▇▇ ▇▇reement listed in Section 3.12 2.14 or Section 2.16 of the Disclosure Schedule Schedule. With respect to each agreement so listed: (includingi) the agreement is legal, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding and enforceable and in full force and effect; (ii) the agreement will continue to be legal, subjectvalid, 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 enforcementthe Closing; and (iii) no Asset Seller, no Company, no Company Subsidiary and, to the Enforceability Exceptions. The trueknowledge of Emerson, correct no other party, is in breach or violation of, or default under, ▇▇▇ ▇▇ch agreement, and complete copies of all written Business Contracts (including all amendmentsno event has occurred, supplementsis pending or, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating knowledge of Emerson, has been or is threatened, which, after the giving of notice, w▇▇▇ ▇▇▇se of time, or otherwise, would constitute a breach or default by any Asset Seller, any Company or any Company Subsidiary or, to the safeguarding knowledge of Personal Data). Section 3.12(b) of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that is Emerson, any other party under such agreement, except as would not in written formreaso▇▇▇▇▇ ▇e expected to have a Company Material Adverse Effect.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default Each agreement entered into by ENI US under the Business Contracts, and, so-called KanBan Documents of Understanding is terminable by ENI US upon not more than 90 days written notice by ENI US to the Knowledge of Seller, no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No event has occurred, and, to without the Knowledge of Seller, no circumstance or condition exists, that (with or without notice or lapse of time) will or would reasonably be expected to (i) result in a material violation or breach payment of any termination or cancellation fee other than payment for finished goods and work in process at the time of the provisions of any Business Contract; (ii) give any Person the right to declare a material default such termination or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, to the Knowledge of Seller, other communication regarding any actual or possible violation or breach of, or material default under, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights under any Business Contractcancellation.
Appears in 1 contract
Contracts. (a) Section 3.12(aSchedule 4.15(a) of the Disclosure Schedule sets forth, as of the date hereof, each Transferred Contract of lists the following typesContracts to which Brookwood is a party:
(i) a collective bargaining agreement any Contract (or other Contract with group of related Contracts) for the lease of personal property to or from any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”)Person providing for lease payments in excess of $25,000 per annum;
(ii) any Contract (or group of related Contracts) for the purchase or sale of personal property, or for the furnishing or receipt of services, the performance of which will extend over a Contract with any Top Customer (as defined below), including purchase orders covering a payment amount period of more than one year or involve consideration in excess of $2,000,000 or more, other than (A) in the ordinary course of business, (B) non-disclosure agreements, (C) sales acknowledgments, (D) purchase orders covering a payment amount of under $2,000,000 or (E) statements of work that have been satisfied in full25,000;
(iii) any Contract concerning a Contract with any Top Vendor (as defined below), including a purchase partnership or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in fulljoint venture;
(iv) a any Contract (or group of related Contracts) under which any Transferred Subsidiary Brookwood has borrowed any money fromcreated, incurred, assumed, or issued guaranteed any noteindebtedness for borrowed money, bondor any capitalized lease obligation, debenture in excess of $25,000 or other evidence under which it has imposed a Lien on any of indebtedness of borrowed money toits assets, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to tangible or as of the Closing)intangible;
(v) a any Contract concerning confidentiality or non-competition other than non-disclosure agreements entered into in the establishment, control, maintenance or operation Ordinary Course of a partnership, joint venture or other similar agreement or arrangement, in each case that is material to the Business;
(vi) all material Leasesany Contract under which Brookwood is currently or potentially obligated to share revenues or income with any other Person (including SRI or any of its Affiliates);
(vii) a any Contract (A) pursuant to which a distributor (including with SRI or any affiliate of Seller) has the right to distribute or resell products of the Business and (B) involving aggregate payments in excess of $100,000 in the twelve (12)-month period ended January 31, 2023its Affiliates;
(viii) any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or other plan or Contract that is a mortgagefor the benefit of its current or former directors, indentureofficers, guaranty, financial, loan or credit agreement, security agreement or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted Liensemployees;
(ix) any Contract that is a hedging, futures, options or other derivative collective bargaining Contract;
(x) any Contract for the acquisition employment of any Person individual on a full-time, part-time, consulting, or any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereofbasis;
(xi) any royalty Contract under which Brookwood has advanced or similar Contract based on loaned any amount to any of its directors, officers, or employees outside the revenues or profits Ordinary Course of any Transferred SubsidiaryBusiness;
(xii) any Contract under which the consequences of indemnification a default or guaranty to any Person not made in the ordinary course of businesstermination would have a Material Adverse Effect;
(xiii) any Contract with under which Brookwood has granted any Governmental EntityPerson any registration rights (including demand and piggyback registration rights);
(xiv) any Contract relating (other than Contracts with customers in the Ordinary Course of Business) under which Brookwood has agreed to the acquisition indemnify any other Person for any loss, expense or disposition of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise)Liability;
(xv) any Contract under which Brookwood has advanced or loaned any other Person amounts in the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;aggregate exceeding $25,000; or
(xvi) any other Contract (A) containing covenants that restrict or limit in any material respect the ability group of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materialsrelated Contracts), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list understanding or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available dealing that will require Brookwood to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) make any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary payment in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof;
(xxii) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations 25,000 after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with respect to actions in such capacity);
(xxvi) any Contract entered into since January 31, 2023 Closing (other than Employee Benefit Plans) that contemplates or involves: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance Ordinary Course of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable LawsBusiness).
(b) All Contracts set SRI has delivered to SurModics a correct and complete copy of each written Contract (as amended to date) listed in Schedule 4.15(a) and a written summary setting forth or required the terms and conditions of each oral Contract referred to be in Schedule 4.15(a). With respect to each such Contract, except as set forth in Section 3.12 of Schedule 4.15(b): (i) the Disclosure Schedule (includingContract is legal, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding binding, enforceable (except that the enforcement thereof may be limited by the Enforcement Limitations) and in full force and effect, subject, as to enforcement, to ; (ii) the Enforceability Exceptions. The true, correct and complete copies of all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and will continue to be subject legal, valid, binding, enforceable, (except that the enforcement thereof may be limited by the Enforcement Limitations) and in full force and effect on identical terms following the consummation of the Transactions; (iii) to ongoing obligations in connection therewith) SRI’s Knowledge, no party is in material breach or default under the Business Contractsdefault, and, to the Knowledge of Seller, and no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, occurred that (with or without notice or lapse of time) will or time would reasonably be expected to (i) result in constitute a material violation breach or breach of any of default, or permit termination, modification, or acceleration, under the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or and (iv) give to SRI’s Knowledge, no party has repudiated any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member provision of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, to the Knowledge of Seller, other communication regarding any actual or possible violation or breach of, or material default under, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights under any Business Contract.
Appears in 1 contract
Contracts. (a) Section 3.12(a3(i) of the Disclosure Schedule sets forth, as of the date hereof, each Transferred Contract of lists the following typescontracts and other agreements which relate to the Acquired Assets:
(i) a collective bargaining Any agreement (or other Contract with group of related agreements) for the lease of personal property to or from any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”)Person;
(ii) Any agreement concerning a Contract with any Top Customer (as defined below), including purchase orders covering a payment amount of $2,000,000 partnership or more, other than (A) in the ordinary course of business, (B) non-disclosure agreements, (C) sales acknowledgments, (D) purchase orders covering a payment amount of under $2,000,000 or (E) statements of work that have been satisfied in fulljoint venture;
(iii) Any agreement (or group of related agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation under which it has imposed a Contract with Security Interest on any Top Vendor (as defined below), including a purchase or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in fullthe Acquired Assets;
(iv) a Contract under which any Transferred Subsidiary has borrowed any money from, Any confidentiality or issued any note, bond, debenture or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to or as of noncompetition agreement affecting the Closing)Plant;
(v) a Contract concerning the establishment{v) Any profit sharing, controldeferred compensation, maintenance or operation of a partnershipseverance, joint venture or other similar agreement material plan or arrangement, arrangement for the benefit of the current or former employees of the Plant (other than in each case that is material to the Businessconnection with any Client Contract);
(vi) all material Leases;
(vii) a Contract (A) pursuant Any agreement under which it has advanced or loaned any amount to which a distributor (including any affiliate of Seller) has the right to distribute or resell products of the Business directors, officers, and (B) involving aggregate payments in excess employees of $100,000 in the twelve (12)-month period ended January 31, 2023;
(viii) any Contract that is a mortgage, indenture, guaranty, financial, loan or credit agreement, security agreement or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, Plant other than Permitted Liens;
(ix) any Contract that is a hedging, futures, options or other derivative Contract;
(x) any Contract for the acquisition of any Person or any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereof;
(xi) any royalty or similar Contract based on the revenues or profits of any Transferred Subsidiary;
(xii) any Contract of indemnification or guaranty to any Person not expense advances made in the ordinary course of business;
(xiiivii) any Contract with any Governmental Entity;
(xiv) any Contract relating to the acquisition or disposition of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);
(xv) any Contract agreement under which the Transferred Subsidiaries consequences of a default or termination could have an obligation with respect to an “earn out,” contingent purchase pricea material adverse effect on the business, financial condition, operations, results of operations, or similar contingent payment obligation;future prospects of the Plant; or
(xviviii) any Contract other agreement (Aor group of related agreements) containing covenants that restrict or limit in any material respect the ability performance of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary involves consideration in excess of $1,500,000 20,000. Seller has delivered to Buyer a correct and complete copy of each written agreement listed in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof;
(xxiiSection 3(j) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available Disclosure Schedule (as amended to Purchaser date) and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice a written summary setting forth the material terms and conditions of termination that extends beyond what is required pursuant each oral agreement referred to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with therein. With respect to actions in each such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involvesagreement: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individuallyagreement is legal, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Laws.
(b) All Contracts set forth or required to be set forth in Section 3.12 of the Disclosure Schedule (including, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding binding, enforceable, and in full force and effecteffect in all material respects; (B) to Seller’s Knowledge, subject, as to enforcement, to the Enforceability Exceptions. The true, correct and complete copies of all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that no party is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default under the Business Contractsdefault, and, to the Knowledge of Seller, and no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, that (occurred which with or without notice or lapse of time) will or time would reasonably be expected to (i) result in constitute a material violation breach or breach of default, or permit termination, modification, or acceleration, under the agreement; and (C) to Seller’s Knowledge, no party has repudiated any material provision of the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, to the Knowledge of Seller, other communication regarding any actual or possible violation or breach of, or material default under, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights under any Business Contractagreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Focus Impact BH3 NewCo, Inc.)
Contracts. Schedule 5.9 lists, and Applied Optronics has heretofore furnished or made available to ESC complete and accurate copies of (or, if oral, Schedule 5.9 states all material provisions of), (a) Section 3.12(a) every loan, credit, escrow, security, mortgage, guaranty, pledge, buy- sell, letter of the Disclosure Schedule sets forthcredit, as of the date hereofsupply, each Transferred Contract of the following types:
(i) a collective bargaining distribution, manufacturer's representative, dealer, agency, lease, licensing, franchise, development, joint development, joint venture, noncompetition, research and development, or similar contract, agreement or understanding to which Applied Optronics is a party or may be bound, (b) every employment or consulting agreement or arrangement with or for the benefit of any director, officer, employee, other Contract with person or shareholder of Applied Optronics or any labor organizationaffiliate thereof, trade union(c) every contract, works council agreement or similar bargaining representative (understanding to which Applied Optronics is a “Collective Agreement”);
(ii) a Contract with any Top Customer (as defined below), including purchase orders covering a payment amount party that could reasonably be expected to involve payments by or to Applied Optronics in excess of $2,000,000 50,000, or morecould have a Material Adverse Effect, other than (A) or that was not made in the ordinary course of business, (Bd) non-disclosure agreementsevery agreement or contract between Applied Optronics and any of Applied Optronics' officers, (C) sales acknowledgments, (D) purchase orders covering a payment amount of under $2,000,000 directors or (E) statements of work that have been satisfied more than 5% shareholders or any entity in full;
(iii) a Contract with any Top Vendor (as defined below), including a purchase or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in full;
(iv) a Contract under which any Transferred Subsidiary of Applied Optronics' officers, directors or more than 5% shareholders has borrowed any money froma greater than 2% equity interest, and every agreement of which Applied Optronics is aware between or issued any noteamong shareholders of Applied Optronics and relating to the acquisition, bondownership, debenture voting or disposition of securities of Applied Optronics and (e) every other evidence of indebtedness of borrowed money tocontract, any personplan, including any guarantee relating thereto (other than any Contract that will be terminated prior to or as of the Closing);
(v) a Contract concerning the establishment, control, maintenance or operation of a partnership, joint venture or other similar agreement or arrangement, in each case that is material to the Business;
(vi) all material Leases;
(vii) a Contract (A) pursuant understanding to which a distributor (including any affiliate of Seller) has the right to distribute or resell products of the Business and (B) involving aggregate payments in excess of $100,000 in the twelve (12)-month period ended January 31, 2023;
(viii) any Contract that is a mortgage, indenture, guaranty, financial, loan or credit agreement, security agreement or is a Contract to which any Transferred Subsidiary Applied Optronics is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted Liens;
(ix) any Contract that is a hedging, futures, options or other derivative Contract;
(x) any Contract for the acquisition of any Person or any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereof;
(xi) any royalty or similar Contract based on the revenues or profits of any Transferred Subsidiary;
(xii) any Contract of indemnification or guaranty to any Person not made in the ordinary course of business;
(xiii) any Contract with any Governmental Entity;
(xiv) any Contract relating to the acquisition or disposition of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);
(xv) any Contract under may be bound and which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is would be required to be filed by Seller Guarantor as with the SEC in a “material contract” pursuant filing to which paragraph (b)(10) of Item 601(b)(10)(i) 601 of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, Rules and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof;
(xxii) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement Regulations of the Transferred Subsidiaries that SEC would be applicable. Applied Optronics has been made available to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with respect to actions in such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involves: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with performed all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Laws.
(b) All Contracts set forth or obligations required to be set forth in Section 3.12 performed by it under any listed or otherwise material contract, plan, agreement, understanding or arrangement made or obligation owed by or to Applied Optronics, except where the failure would not have a Material Adverse Effect; there has not been any event of default (or any event or condition which with notice or the Disclosure Schedule (includinglapse of time, for both or otherwise, would constitute an event of default) thereunder on the avoidance part of doubtApplied Optronics, or, to Applied Optronics' knowledge, any Contract other party thereof that would have been required to be identified in Section 3.12 of a Material Adverse Effect; the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) same are valid, binding and in full force and effecteffect and are valid and enforceable by Applied Optronics in accordance with their respective terms, subject, as to enforcement, to the Enforceability Exceptions. The true, correct and complete copies of all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions except to the extent required to comply with applicable Information Privacy that enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and Security Laws similar laws now or hereafter in effect relating to the safeguarding creditors' rights generally, by general principles of Personal Data). Section 3.12(b) equity (regardless of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that whether enforceability is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default under the Business Contracts, and, to the Knowledge of Seller, no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, that (with or without notice or lapse of time) will or would reasonably be expected to (i) result considered in a material violation proceeding at law or breach of any of in equity); and the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; such contracts, plans, agreements, understandings, arrangements or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, to the Knowledge of Seller, other communication regarding any actual or possible violation or breach of, or material default under, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights under any Business Contractobligations would not have a Material Adverse Effect.
Appears in 1 contract
Contracts. (a) Section 3.12(a) 4.14 of the Disclosure Schedule sets forth, as of the date hereof, each Transferred Contract of lists the following typescontracts and other executory agreements to which either the Seller or the Mexican Affiliate is a party:
(ia) a collective bargaining any agreement (or other Contract with any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”);
(iigroup of related agreements) a Contract with any Top Customer (as defined below), including purchase orders covering a payment amount for the lease of $2,000,000 or more, other than (A) in the ordinary course of business, (B) non-disclosure agreements, (C) sales acknowledgments, (D) purchase orders covering a payment amount of under $2,000,000 or (E) statements of work that have been satisfied in full;
(iii) a Contract with any Top Vendor (as defined below), including a purchase or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in full;
(iv) a Contract under which any Transferred Subsidiary has borrowed any money from, or issued any note, bond, debenture or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior personal property to or as of the Closing);
(v) a Contract concerning the establishment, control, maintenance or operation of a partnership, joint venture or other similar agreement or arrangement, in each case that is material to the Business;
(vi) all material Leases;
(vii) a Contract (A) pursuant to which a distributor (including from any affiliate of Seller) has the right to distribute or resell products of the Business and (B) involving aggregate Person providing for lease payments in excess of $100,000 in the twelve (12)-month period ended January 31, 202325,000 per annum;
(viiib) any Contract that is a mortgageagreement (or group of related agreements) for the purchase or sale of raw materials, indenturecommodities, guarantysupplies, financialproducts, loan or credit agreement, security agreement or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted Liens;
(ix) any Contract that is a hedging, futures, options or other derivative Contract;
(x) any Contract personal property, or for the acquisition furnishing or receipt of any Person or any business unit thereof or services, the disposition performance of any assets, other than (A) Contracts for acquisitions or dispositions which will extend over a period of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior one year, result in a loss either to the date hereof;
(xi) any royalty or similar Contract based on the revenues or profits of any Transferred Subsidiary;
(xii) any Contract of indemnification or guaranty to any Person not made Seller in the ordinary course of business;
(xiii) any Contract connection with any Governmental Entity;
(xiv) any Contract relating to the acquisition or disposition of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);
(xv) any Contract under which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred SubsidiaryMexican Affiliate, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary involve consideration in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof25,000;
(xxiic) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary agreement concerning a partnership or the Business will have any material outstanding obligations after the Closingjoint venture;
(xxiii) (Ad) any Contract with an Employee that provides agreement (or group of related agreements) under which the Seller or the Mexican Affiliate has created, incurred, assumed, or guaranteed any indebtedness for annual base compensation borrowed money, or any capitalized lease obligation, or under which the Seller or the Mexican Affiliate has imposed a Security Interest on any of its assets, tangible or intangible;
(e) any agreement concerning confidentiality or noncompetition or Intellectual Property;
(f) any agreement involving any Affiliate;
(g) any collective bargaining agreement;
(h) any agreement for the employment of any individual on a full-time, part- time, consulting, or other basis or providing severance benefits;
(i) any agreement under which the Seller or the Mexican Affiliate has advanced or loaned any amount to any of the directors, officers, and employees of MATEC, the Seller or the Mexican Affiliate outside the Ordinary Course of Business;
(j) any other agreement (or group of related agreements) the performance of which involves consideration in excess of $80,000 that materially deviates from 25,000. The Seller and the standard form Mexican Affiliate, as applicable, have delivered to the Buyer a correct and complete copy of employment agreement each of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change written agreements listed in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result Section 4.14 of the consummation Disclosure Schedule (as amended to date except for immaterial unwritten amendments arising in the Ordinary Course of any Business) and a written summary setting forth the material terms and conditions of each oral agreement listed in Section 4.14 of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with Disclosure Schedule. With respect to actions in each such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involvesagreement: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individuallyagreement is legal, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Laws.
(b) All Contracts set forth or required to be set forth in Section 3.12 of the Disclosure Schedule (including, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding binding, enforceable, and in full force and effecteffect in all material respects; (B) neither the Seller nor the Mexican Affiliate have Knowledge of any fact or circumstance which would prevent the agreement from continuing to be legal, subjectvalid, as to enforcementbinding, to enforceable, and in full force and effect in all material respects on identical terms following the Enforceability Exceptions. The true, correct and complete copies of all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) consummation of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that transactions contemplated hereby; (C) no party is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default under the Business Contractsdefault, and, to the Knowledge of Seller, and no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, that (occurred which with or without notice or lapse of time) will or time would reasonably be expected to (i) result in constitute a material violation breach or breach of default, or permit termination, modification, or acceleration, under the agreement; and (D) no party has repudiated any material provision of the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, to the Knowledge of Seller, other communication regarding any actual or possible violation or breach of, or material default under, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights under any Business Contractagreement.
Appears in 1 contract
Sources: Purchase Agreement (Matec Corp/De/)
Contracts. (a) Except as executed in contemplation of the transactions contemplated herein, Section 3.12(a6(o) of the Disclosure Schedule sets forth, as of the date hereof, each Transferred Contract of lists the following typescontracts and other agreements to which any of MyFamilyMD and its Subsidiaries is a party:
(i) a collective bargaining any agreement (or other Contract with group of related agreements) for the lease of personal property to or from any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”)Person providing for lease payments in excess of $2,000 per annum;
(ii) any agreement (or group of related agreements) for the purchase or sale of raw materials, commodities, supplies, products, or other personal property, or for the furnishing or receipt of services, the performance of which will extend over a Contract with period of more than one year, result in a material loss to any Top Customer (as defined below)of MyFamilyMD and its Subsidiaries, including purchase orders covering a payment amount or involve consideration in excess of $2,000,000 or more, other than (A) in the ordinary course of business, (B) non-disclosure agreements, (C) sales acknowledgments, (D) purchase orders covering a payment amount of under $2,000,000 or (E) statements of work that have been satisfied in full2,000;
(iii) any agreement concerning a Contract with any Top Vendor (as defined below), including a purchase partnership or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in fulljoint venture;
(iv) a Contract any agreement (or group of related agreements) under which any Transferred Subsidiary it has borrowed any money fromcreated, incurred, assumed, or issued guaranteed any noteindebtedness for borrowed money, bondor any capitalized lease obligation, debenture in excess of $2,000 or other evidence under which it has imposed a Security Interest on any of indebtedness of borrowed money toits assets, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to tangible or as of the Closing)intangible;
(v) a Contract any agreement concerning the establishment, control, maintenance confidentiality or operation of a partnership, joint venture or other similar agreement or arrangement, in each case that is material to the Businessnoncompetition;
(vi) all material Leasesany agreement with any of the Members and their Affiliates (other than MyFamilyMD and its Subsidiaries);
(vii) a Contract (A) pursuant to which a distributor (including any affiliate profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or other plan or arrangement for the benefit of Seller) has the right to distribute its current or resell products of the Business former directors, officers, and (B) involving aggregate payments in excess of $100,000 in the twelve (12)-month period ended January 31, 2023employees;
(viii) any Contract that is a mortgage, indenture, guaranty, financial, loan or credit collective bargaining agreement, security agreement or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted Liens;
(ix) any Contract that is agreement for the employment of any individual on a hedgingfull-time, futurespart-time, options consulting, or other derivative Contractbasis providing annual compensation in excess of $2,000 or providing severance benefits;
(x) any Contract for agreement under which it has advanced or loaned any amount to any of its directors, officers, and employees outside the acquisition Ordinary Course of any Person or any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereofBusiness;
(xi) any royalty agreement under which the consequences of a default or similar Contract based on the revenues or profits of any Transferred Subsidiary;termination could have a MyFamilyMD Material Adverse Effect; or
(xii) any Contract other agreement (or group of indemnification or guaranty to any Person not made in related agreements) the ordinary course performance of business;
(xiii) any Contract with any Governmental Entity;
(xiv) any Contract relating to the acquisition or disposition of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);
(xv) any Contract under which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary involves consideration in excess of $1,500,000 2,000. The Members have delivered to I-trax a correct and complete copy of each written agreement listed in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof;
(xxiiSection 6(o) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available Disclosure Schedule (as amended to Purchaser date) and (Ba written summary setting forth the terms and conditions of each oral agreement referred to in Section 6(o) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with Disclosure Schedule. With respect to actions in each such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involvesagreement: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individuallyagreement is legal, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Laws.
(b) All Contracts set forth or required to be set forth in Section 3.12 of the Disclosure Schedule (including, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding binding, enforceable, and in full force and effect, subject, as to enforcement, to ; (B) the Enforceability Exceptions. The true, correct and complete copies of all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and agreement will continue to be subject to ongoing obligations legal, valid, binding, enforceable, and in connection therewithfull force and effect on identical terms following the consummation of the transactions contemplated hereby; (C) no party is in material breach or default under the Business Contractsdefault, and, to the Knowledge of Seller, and no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, that (occurred which with or without notice or lapse of timetime would constitute a breach or default, or permit termination, modification, or acceleration, under the agreement; and (D) will or would reasonably be expected to (i) result in a material violation or breach of no party has repudiated any provision of the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, to the Knowledge of Seller, other communication regarding any actual or possible violation or breach of, or material default under, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights under any Business Contractagreement.
Appears in 1 contract
Sources: Contribution and Exchange Agreement (I Trax Com Inc)
Contracts. Section 3.18 of the SELLERS Disclosure Schedule lists the following written arrangements (including without limitation written agreements) to which any of the TARGETS is a party:
(a) Section 3.12(aany written arrangement (or group of related written arrangements) for the lease of the Disclosure Schedule sets forth, as of the date hereof, each Transferred Contract of the following types:
(i) a collective bargaining agreement personal property from or other Contract with any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”);
(ii) a Contract with any Top Customer (as defined below), including purchase orders covering a payment amount of $2,000,000 or more, other than (A) in the ordinary course of business, (B) non-disclosure agreements, (C) sales acknowledgments, (D) purchase orders covering a payment amount of under $2,000,000 or (E) statements of work that have been satisfied in full;
(iii) a Contract with any Top Vendor (as defined below), including a purchase or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in full;
(iv) a Contract under which any Transferred Subsidiary has borrowed any money from, or issued any note, bond, debenture or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to or as of the Closing);
(v) a Contract concerning the establishment, control, maintenance or operation of a partnership, joint venture or other similar agreement or arrangement, in each case that is material to the Business;
(vi) all material Leases;
(vii) a Contract (A) pursuant to which a distributor (including any affiliate of Seller) has the right to distribute or resell products of the Business and (B) involving aggregate third parties providing for lease payments in excess of $100,000 in the twelve (12)-month period ended January 31, 202315,000 per annum;
(viiib) any Contract that is written arrangement (or group of related written arrangements) for the purchase or sale of raw materials, commodities, supplies, products or other personal property or for the furnishing or receipt of services (i) which calls for performance over a mortgageperiod of more than one year, indenture(ii) which involves more than the sum of $15,000, guaranty, financial, loan or credit agreement, security agreement or is a Contract to (iii) in which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted Liens;
(ix) any Contract that is a hedging, futures, options or other derivative Contract;
(x) any Contract for the acquisition of any Person or any business unit thereof or the disposition of any assets, other than TARGETS (A) Contracts for acquisitions or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereof;
(xi) any royalty or similar Contract based on the revenues or profits of any Transferred Subsidiary;
(xii) any Contract of indemnification or guaranty to any Person not made in the ordinary course of business;
(xiii) any Contract with any Governmental Entity;
(xiv) any Contract relating to the acquisition or disposition of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);
(xv) any Contract under which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is has granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials)manufacturing rights, (B) for non-specific Intellectual Property Rights has granted under a Transferred Subsidiary’s standard forms for employees and contractors"most favored nation" pricing provisions or exclusive marketing or distribution rights relating to any products or territory, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses has agreed to purchase a minimum quantity of third party Trademarks solely for the inclusion of such Trademarks in a customer list goods or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiaryservices, or (D) non-exclusive licenses has agreed to Trademarks purchase goods or services exclusively from a certain party;
(c) any written arrangement establishing a partnership or joint venture;
(d) any written arrangement (or group of related written arrangements) under which it has created, incurred, assumed, or guaranteed (or may create, incur, assume, or guarantee) indebtedness (including capitalized lease obligations) involving more than $15,000 or under which it has imposed (or may impose) a Security Interest on any of its assets, tangible or intangible;
(e) any written arrangement concerning confidentiality or noncompetition;
(f) any written arrangement involving SELLERS or any of their Affiliates;
(g) any written arrangement under which the consequences of a default or termination, taken as a whole, could have a Material Adverse Effect on the assets, business, financial condition, results of operations or future prospects of any of the TARGETS; and
(h) any other written arrangement (or group of related written arrangements) currently in existence or which any provisions thereof are currently binding on any of the TARGETS either (x) involving more than $15,000 or (y) not entered into in the ordinary course Ordinary Course of business for inclusion Business. SELLERS have delivered to HSOA a correct and complete copy of such Trademark each written arrangement (as amended to date) listed in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member Section 3.18 of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof;
(xxii) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with SELLERS Disclosure Schedule. With respect to actions in such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involveseach written arrangement so listed: (Ai) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individuallywritten arrangement is legal, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Laws.
(b) All Contracts set forth or required to be set forth in Section 3.12 of the Disclosure Schedule (including, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding and enforceable and in full force and effect, subject, as to enforcement, to ; (ii) the Enforceability Exceptions. The true, correct and complete copies of all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and arrangement will continue to be legal, valid, binding and enforceable and in full force and effect on and immediately following the Closing Date in accordance with the terms thereof as in effect prior to the Closing Date, subject to ongoing obligations obtaining any consents required by such arrangement that are listed on Section 3.6 of the SELLERS Disclosure Schedule; and (iii) no party is in connection therewith) in material breach or default under the Business Contractsdefault, and, to the Knowledge of Seller, and no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, that (occurred which with or without notice or lapse of time) will time would constitute a breach or would reasonably be expected to (i) result in a material violation default or breach of any permit termination, modification, or acceleration, under the written arrangement. None of the provisions of TARGETS is a party to any Business Contract; (ii) give any Person the right oral contract, agreement or other arrangement that, if reduced to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right written form, would be required to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member be listed in Section 3.18 of the Seller Group (including SELLERS Disclosure Schedule under the Transferred Subsidiaries) nor any terms of its affiliates has received any written notice or, to the Knowledge of Seller, other communication regarding any actual or possible violation or breach of, or material default under, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights under any Business Contractthis Section 3.18.
Appears in 1 contract
Sources: Stock Purchase Agreement (Home Solutions of America Inc)
Contracts. (a) Section 3.12(a) 4.14 of the Disclosure Schedule sets forth, as of the date hereof, each Transferred Contract of lists the following typescontracts and other agreements to which the Company and its Subsidiaries is a party:
(ia) a collective bargaining any agreement (or other Contract with any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”);
(iigroup of related agreements) a Contract with any Top Customer (as defined below), including purchase orders covering a payment amount for the lease of $2,000,000 or more, other than (A) in the ordinary course of business, (B) non-disclosure agreements, (C) sales acknowledgments, (D) purchase orders covering a payment amount of under $2,000,000 or (E) statements of work that have been satisfied in full;
(iii) a Contract with any Top Vendor (as defined below), including a purchase or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in full;
(iv) a Contract under which any Transferred Subsidiary has borrowed any money from, or issued any note, bond, debenture or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior personal property to or as of the Closing);
(v) a Contract concerning the establishment, control, maintenance or operation of a partnership, joint venture or other similar agreement or arrangement, in each case that is material to the Business;
(vi) all material Leases;
(vii) a Contract (A) pursuant to which a distributor (including from any affiliate of Seller) has the right to distribute or resell products of the Business and (B) involving aggregate Person providing for lease payments in excess of $100,000 in 15,000 per annum, provided that the twelve (12)-month period ended January 31, 2023aggregate amount of annual lease payments for all agreements omitted from Section 4.14 of the Disclosure Schedule due to the annual lease payment threshold of this provision shall not exceed $100,000;
(viiib) any Contract that is a mortgage, indenture, guaranty, financial, loan agreement (or credit agreement, security agreement or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties group of any Transferred Subsidiary, related agreements) other than Permitted LiensTimes Sales Agreements, for the purchase or sale of raw materials, commodities, supplies, products, or other personal property, or for the furnishing or receipt of services, the performance of which will extend over a period of more than one year or involve consideration in excess of $15,000, provided that the aggregate amount of consideration for all agreements omitted from Section 4.14 of the Disclosure Schedule due to the consideration threshold of this provision shall not exceed $100,000;
(ixc) any Contract that is a hedging, futures, options or agreement for the sale of air time on the Blue Chip Stations other derivative Contractthan Time Sales Agreements;
(xd) any Contract for the acquisition of any Person agreement concerning a partnership or any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereofjoint venture;
(xie) any royalty agreement (or similar Contract based group of related agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, in excess of $15,000 or under which it has imposed a Security Interest on any of its assets, tangible or intangible, provided that the revenues aggregate amount of indebtedness or profits capitalized lease obligations for all agreements omitted from Section 4.14 of any Transferred Subsidiarythe Disclosure Schedule due to the indebtedness and capitalized lease obligation threshold of this provision shall not exceed $100,000;
(xiif) other than contained in agreements with employees, any Contract of indemnification material agreement concerning confidentiality or guaranty to any Person not made in the ordinary course of businessnon-competition;
(xiiig) any Contract agreement with any Governmental Entity;
(xiv) any Contract relating to the acquisition or disposition of any business or material portion of the assets of any Person Stockholders and their Affiliates (whether by merger, sale of stock, sale of assets or otherwiseother than the Company and its Subsidiaries);
(xvh) any Contract under which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase priceprofit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or similar contingent payment obligationother material plan or arrangement for the benefit of its current or former directors, officers, and employees;
(xvii) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Personcollective bargaining agreement;
(xviij) any Contract that contains agreement for the employment of any individual on a licensefull-time, sublicense part-time, consulting, or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of basis providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof;
(xxii) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention 25,000 or stay bonus, providing severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with respect to actions in such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involves: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individually10,000, or $1,000,000 in provided that the aggregate when taken together with amount of annual compensation and severance benefits for all agreements omitted from Section 4.14 of the Disclosure Schedule due to the compensation and severance benefits thresholds of this provision shall not exceed $100,000;
(k) any agreement under which it has advanced or loaned any amount to any of its directors, officers, and employees;
(l) any agreement under which the consequences of a default or termination could have a Material Adverse Effect on the Company; and
(m) any other Contracts involving such Person agreement (or such Person’s affiliates; or (Bgroup of related agreements) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value which involves consideration in excess of $200,000 individually10,000, or $1,000,000 in provided that the aggregate when taken together with amount of consideration for all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreements omitted from Section 4.14 of the Disclosure Schedule due to the consideration threshold of this provision of this provision shall not exceed $100,000. The Company has delivered to the Parent a correct and complete copy of each written agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Laws.
(b) All Contracts set forth or required to be set forth listed in Section 3.12 4.14 of the Disclosure Schedule (including, for as amended to date) and a written summary setting forth the avoidance material terms and conditions of doubt, any Contract that would have been required each oral agreement referred to be identified in Section 3.12 4.14 of the Disclosure Schedule had Section 3.12 of Schedule. With respect to each such agreement: (i) the Disclosure Schedule been made at the Closing)agreement is legal, all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding binding, enforceable, and in full force and effect, subject, as to enforcementeffect in all material respects; and (ii) the Company is not and, to the Enforceability Exceptions. The trueCompany's Knowledge, correct and complete copies of all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that no other party is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default under the Business Contractsdefault, and, to the Knowledge of Seller, and no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, that (occurred which with or without notice or lapse of time) will or time would reasonably be expected to (i) result in constitute a material violation breach or breach of any of the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, to the Knowledge of Seller, other communication regarding any actual or possible violation or breach ofdefault, or material default underpermit termination, any Business Contract. No member of modification, or acceleration, under the Seller Group (including agreement which would have a Material Adverse Effect on the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights under any Business ContractCompany.
Appears in 1 contract
Sources: Merger Agreement (Radio One Inc)
Contracts. (a) Section 3.12(a4(p) of the Disclosure Schedule sets forth, as of the date hereof, each Transferred Contract of lists the following typescontracts and other agreements to which Target is a party:
(i) a collective bargaining any agreement (or other Contract with group of related agreements) for the lease of personal property to or from any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”)Person regardless of amount;
(ii) any agreement (or group of related agreements) for the purchase or sale of raw materials, commodities, supplies, products, or other personal property, or for the furnishing or receipt of services, the performance of which will extend over a Contract with any Top Customer (as defined below)period of more than one year, including purchase orders covering result in a payment amount loss to Target, or involve consideration in excess of $2,000,000 or more, other than (A) in the ordinary course of business, (B) non-disclosure agreements, (C) sales acknowledgments, (D) purchase orders covering a payment amount of under $2,000,000 or (E) statements of work that have been satisfied in full10,000;
(iii) any agreement concerning a Contract with any Top Vendor (as defined below), including a purchase partnership or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in fulljoint venture;
(iv) a Contract any agreement (or group of related agreements) under which any Transferred Subsidiary it has borrowed any money fromcreated, incurred, assumed, or issued guaranteed any noteindebtedness for borrowed money, bond, debenture or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to or as of the Closing)capitalized lease obligation;
(v) a Contract any agreement concerning the establishment, control, maintenance confidentiality or operation of a partnership, joint venture or other similar agreement or arrangement, in each case that is material to the Businessnon-competition;
(vi) all material Leasesany agreement with any of Sellers and their Affiliates (other than Target);
(vii) a Contract (A) pursuant to which a distributor (including any affiliate profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or other plan or arrangement for the benefit of Seller) has the right to distribute its current or resell products of the Business former directors, officers, and (B) involving aggregate payments in excess of $100,000 in the twelve (12)-month period ended January 31, 2023employees;
(viii) any Contract that is a mortgage, indenture, guaranty, financial, loan or credit collective bargaining agreement, security agreement or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted Liens;
(ix) any Contract that is agreement for the employment of any individual on a hedgingfull-time, futurespart-time, options consulting, or other derivative Contractbasis providing annual compensation in excess of $10,000 or providing severance benefits;
(x) any Contract for agreement under which it has advanced or loaned any amount to any of its directors, officers, and employees outside the acquisition Ordinary Course of any Person or any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereofBusiness;
(xi) any royalty agreement under which the consequences of a default or similar Contract based on the revenues or profits of any Transferred Subsidiarytermination could have a Material Adverse Effect;
(xii) any Contract of indemnification or guaranty to agreement under which it has granted any Person not made in the ordinary course of businessany registration rights (including, without limitation, demand and piggyback registration rights);
(xiii) any Contract with agreement under which Target has advanced or loaned any Governmental Entity;other Person any amounts; or
(xiv) any Contract relating to other agreement (or group of related agreements) the acquisition or disposition performance of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);
(xv) any Contract under which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary involves consideration in excess of $1,500,000 10,000. Sellers have delivered to Buyer a correct and complete copy of each written agreement (as amended to date) listed in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof;
(xxiiSection 4(p) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available Disclosure Schedule and a written summary setting forth the terms and conditions of each oral agreement referred to Purchaser and (Bin Section 4(p) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with Disclosure Schedule. With respect to actions in each such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involvesagreement: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individuallyagreement is legal, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Laws.
(b) All Contracts set forth or required to be set forth in Section 3.12 of the Disclosure Schedule (including, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding binding, enforceable, and in full force and effect, subject, as to enforcement, to ; (B) the Enforceability Exceptions. The true, correct and complete copies of all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and agreement will continue to be subject to ongoing obligations legal, valid, binding, enforceable, and in connection therewithfull force and effect on identical terms following the consummation of the transaction contemplated hereby; (C) no party is in material breach or default under the Business Contractsdefault, and, to the Knowledge of Seller, and no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, that (occurred which with or without notice or lapse of timetime would constitute a breach or default, or permit termination, modification, or acceleration, under the agreement; and (D) will or would reasonably be expected to (i) result in a material violation or breach of no party has repudiated any provision of the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, to the Knowledge of Seller, other communication regarding any actual or possible violation or breach of, or material default under, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights under any Business Contractagreement.
Appears in 1 contract
Contracts. (a) Section 3.12(a2.15(a) of the Disclosure Schedule sets forth, lists all agreements (written or oral) to which the Seller is a party as of the date hereofof this Agreement, each Transferred Contract of the following typesincluding without limitation:
(i) a collective bargaining any agreement (or other Contract with any labor organization, trade union, works council group of related agreements) for the lease of personal property from or similar bargaining representative (a “Collective Agreement”)to third parties;
(ii) a Contract with any Top Customer agreement (as defined below)or group of related agreements) for the purchase or sale of products or for the furnishing or receipt of services, including without limitation those in which the Seller has granted manufacturing rights, "most favored nation" pricing provisions or exclusive marketing or distribution rights relating to any products or territory or has agreed to purchase orders covering a payment amount minimum quantity of $2,000,000 goods or more, other than (A) in the ordinary course of business, (B) non-disclosure agreements, (C) sales acknowledgments, (D) services or has agreed to purchase orders covering goods or services exclusively from a payment amount of under $2,000,000 or (E) statements of work that have been satisfied in fullcertain party;
(iii) any agreement establishing a Contract with any Top Vendor (as defined below), including a purchase partnership or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in fulljoint venture;
(iv) a Contract any agreement (or group of related agreements) under which it has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) under which it has imposed (or may impose) a Security Interest on any Transferred Subsidiary has borrowed any money fromof its assets, tangible or issued any note, bond, debenture or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to or as of the Closing)intangible;
(v) a Contract any agreement concerning the establishment, control, maintenance confidentiality or operation of a partnership, joint venture or other similar agreement or arrangement, in each case that is material to the Businessnoncompetition;
(vi) all material Leasesany employment or consulting agreement;
(vii) a Contract (A) pursuant to which a distributor (including any agreement involving any officer, director or stockholder of the Seller or any affiliate (an "Affiliate"), as defined in Rule 12b-2 under the Securities Exchange Act of Seller) has 1934, as amended (the right to distribute or resell products of the Business and (B) involving aggregate payments in excess of $100,000 in the twelve (12)-month period ended January 31"Exchange Act"), 2023thereof;
(viii) any Contract that is agreement under which the consequences of a mortgage, indenture, guaranty, financial, loan default or credit agreement, security agreement or is termination would reasonably be expected to have a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted LiensSeller Material Adverse Effect;
(ix) any Contract that is a hedgingagreement which contains any provisions requiring the Seller to indemnify any other party thereto (excluding indemnities contained in agreements for the purchase, futures, options sale or other derivative Contractlicense of products entered into in the Ordinary Course of Business);
(x) any Contract for the acquisition of any Person or any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereof;all Assigned Contracts; and
(xi) any royalty other agreement (or similar Contract based on the revenues group of related agreements) either involving more than $1,000 or profits of any Transferred Subsidiary;
(xii) any Contract of indemnification or guaranty to any Person not made in the ordinary course of business;
(xiii) any Contract with any Governmental Entity;
(xiv) any Contract relating to the acquisition or disposition of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);
(xv) any Contract under which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof;
(xxii) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with respect to actions in such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involves: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable LawsOrdinary Course Of Business.
(b) All Contracts set forth or required The Seller has delivered to be set forth the Buyer a complete and accurate copy of each agreement listed in Section 3.12 2.13 or Section 2.15(a) of the Disclosure Schedule Schedule. With respect to each agreement so listed: (including, for i) assuming due authorization and execution by all parties other than the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such ContractsSeller, the “Business Contracts”) are agreement is legal, valid, binding and enforceable and in full force and effect; (ii) assuming due authorization and execution by all parties other than the Seller, subjectthe 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 enforcementthe Closing; and (iii) neither the Seller nor, to the Enforceability Exceptions. The trueknowledge of the Seller, correct any other party, is in breach or violation of, or default under, any such agreement, and complete copies of all written Business Contracts (including all amendmentsno event has occurred, supplementsis pending or, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply knowledge of the Seller, is threatened, which, after the giving of notice, with applicable Information Privacy and Security Laws relating lapse of time, or otherwise, would constitute a breach or default by the Seller or, to the safeguarding knowledge of Personal Data). the Seller, any other party under such contract.
(c) The Buyer has elected to categorize each of the contracts listed in Section 3.12(b2.15(a) of the Disclosure Schedule provides as either an accurate and complete description Acquired Asset or an Excluded Asset. All consents required for the valid assignment of the material terms of each Business Contract that is not in written form.
(c) Except as set forth Assigned Contracts to the Buyer are listed in Section 3.12(c2.15(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default under the Business Contracts, and, to the Knowledge of Seller, no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, that (with or without notice or lapse of time) will or would reasonably be expected to (i) result in a material violation or breach of any of the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, to the Knowledge of Seller, other communication regarding any actual or possible violation or breach of, or material default under, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights under any Business Contract.
Appears in 1 contract
Contracts. (a) 3.15.1 Section 3.12(a) 3.15 of the Disclosure Schedule sets forth, lists the following agreements (written or oral) to which the Company or any Subsidiary is a party as of the date hereof, each Transferred Contract of the following typesthis Agreement:
(ia) any agreement (or group of related agreements) for the lease of personal property from or to third parties providing for lease payments in excess of $1,000 per annum or having a collective bargaining agreement or other Contract with any labor organization, trade union, works council or similar bargaining representative remaining term longer than twelve (a “Collective Agreement”)12) months;
(iib) a Contract with any Top Customer agreement (as defined below), including or group of related agreements) for the purchase orders covering a payment amount or sale of $2,000,000 products or more, other than for the furnishing or receipt of services (A) in the ordinary course which calls for performance over a period of businessmore than one (1) year, (B) non-disclosure agreementswhich involves more than the sum of $10,000, or (C) sales acknowledgmentsin which the Company or any Subsidiary has granted manufacturing rights, (D) most favored nation pricing provisions or exclusive marketing or distribution rights relating to any products or territory or has agreed to purchase orders covering a payment amount minimum quantity of under $2,000,000 goods or (E) statements of work that have been satisfied in fullservices or has agreed to purchase goods or services exclusively from a certain party;
(iiic) a Contract with any Top Vendor (as defined below), including a purchase or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in full;
(iv) a Contract under which any Transferred Subsidiary has borrowed any money from, or issued any note, bond, debenture or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to or as of the Closing);
(v) a Contract agreement concerning the establishment, control, maintenance establishment or operation of a partnership, joint venture or other similar agreement or arrangement, in each case that is material to the Businesslimited liability company;
(vid) all material Leasesany agreement (or group of related agreements) under which it has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) involving more than $10,000 or under, which it has imposed (or may impose) a security interest on any of its assets, tangible or intangible;
(viie) a Contract (A) pursuant to which a distributor (including any affiliate agreement for the disposition of Seller) has the right to distribute or resell products any significant portion of the Business and assets or business of the Company or any Subsidiary (B) involving aggregate payments in excess other than sales of $100,000 products in the twelve (12)-month period ended January 31, 2023;
(viiiOrdinary Course of Business) or any Contract that is a mortgage, indenture, guaranty, financial, loan or credit agreement, security agreement or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted Liens;
(ix) any Contract that is a hedging, futures, options or other derivative Contract;
(x) any Contract for the acquisition of any Person the assets or any business unit thereof or the disposition of any assets, other entity (other than (A) Contracts for acquisitions or dispositions purchases of inventory or components in the ordinary course Ordinary Course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereof;
(xi) any royalty or similar Contract based on the revenues or profits of any Transferred Subsidiary;
(xii) any Contract of indemnification or guaranty to any Person not made in the ordinary course of business;
(xiii) any Contract with any Governmental Entity;
(xiv) any Contract relating to the acquisition or disposition of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwiseBusiness);
(xvf) any Contract agreement concerning confidentiality or noncompetition;
(g) any employment or consulting agreement;
(h) any agreement involving any current or former officer, director or member of the Company or an Affiliate thereof;
(i) any agreement under which the Transferred Subsidiaries consequences of a default or termination would reasonably be expected to have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligationa Material Adverse Effect;
(xvij) any Contract (A) containing covenants that restrict agreement which contains any provisions requiring the Company or limit in any material respect the ability of any Transferred Subsidiary to engage indemnify any other party (excluding indemnities contained in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely agreements for the inclusion purchase, sale or license of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks products entered into in the ordinary course Ordinary Course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred SubsidiaryBusiness), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof;
(xxii) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with respect to actions in such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involves: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxviik) any material management, consulting, contractor, relocation, repatriation other agreement (or expatriation agreement group of related agreements) either involving more than $10,000 or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without entered into in the payment Ordinary Course of severance or other termination payments or benefits beyond that which is required by applicable LawsBusiness.
(b) All Contracts set forth or required 3.15.2 The Members have delivered to be set forth the Buyer a true, complete and accurate copy of each agreement listed in Section 3.12 3.15 of the Disclosure Schedule (includingSchedule, for the avoidance of doubt, any Contract that would have been required to be identified except as otherwise indicated in such Section 3.12 3.15 of the Disclosure Schedule had Section 3.12 Schedule. To the Knowledge of each of the Disclosure Schedule been made at Members, with respect to each agreement so listed: (i) the Closing)agreement is legal, all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding and enforceable and in full force and effect; (ii) for those agreements to which the Company is a party, subject, as to enforcement, the agreement is assignable by the Company to the Enforceability Exceptions. The true, correct and complete copies Buyer without the consent or approval of all written Business Contracts any party (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that is not in written form.
(c) Except except as set forth in Section 3.12(c) 3.3 and 3.15 of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been () and will continue to be subject 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 ongoing obligations in connection therewiththe Closing; (iii) in material breach or default under the Business Contracts, and, to the Knowledge of Sellereach of the Members, neither the Company nor any Subsidiary nor any other party is in breach or violation of, or default under, any such agreement; and (iv) to the Knowledge of each of the Members, no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No event has occurred, andis pending or is threatened, to which, after the Knowledge giving of Sellernotice, no circumstance or condition exists, that (with or without notice or lapse of time) will or would reasonably be expected to (i) result in a material violation or breach of any of the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, to the Knowledge of Seller, other communication regarding any actual or possible violation or breach of, or material otherwise, would constitute a breach or default under, by the Company or any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor Subsidiary or any of its affiliates has waived any of their material rights other party under any Business Contractsuch agreement.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Adex Media, Inc.)
Contracts. (a) Section 3.12(ass.3(s) of the Disclosure Schedule sets forth, as of the date hereof, each Transferred Contract of lists the following typescontracts and other agreements to which any Seller is a party:
(i) a collective bargaining any agreement (or other Contract with group of related agreements) for the lease of personal or real property to or from any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”)Person;
(ii) any agreement (or group of related agreements) for the furnishing or receipt of services, the performance of which will extend over a Contract period of more than one (1) year, result in a material loss to any of Sellers, with any Top Customer (as defined below)respect to the Business, including purchase orders covering a payment amount or involve consideration in excess of US $2,000,000 or more, other than (A) in the ordinary course of business, (B) non-disclosure agreements, (C) sales acknowledgments, (D) purchase orders covering a payment amount of under $2,000,000 or (E) statements of work that have been satisfied in full50,000;
(iii) any agreement concerning a Contract with any Top Vendor (as defined below)partnership, including a purchase joint venture, cooperative development or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in fullsimilar arrangement;
(iv) a Contract any agreement (or group of related agreements) under which any Transferred Subsidiary it has borrowed any money fromcreated, incurred, assumed, or issued guaranteed any noteindebtedness for borrowed money, bondor any capitalized lease obligation, debenture in excess of US $50,000 or other evidence under which it has imposed a Security Interest on any of indebtedness of borrowed money toits assets, any persontangible or intangible, including any guarantee relating thereto (other than any Contract that will be terminated prior to or as of the Closing)property, real or personal;
(v) a Contract any agreement concerning the establishment, control, maintenance confidentiality or operation of a partnership, joint venture or noncompetition other similar agreement or arrangement, in each case that is material to the Businessthan Sellers' standard employee agreement;
(vi) all material Leasesany agreement with any of Stockholders and their Affiliates;
(vii) a Contract (A) pursuant to which a distributor (including any affiliate profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or other material plan or arrangement for the benefit of Seller) has the right to distribute its current or resell products of the Business former directors, officers, and (B) involving aggregate payments in excess of $100,000 in the twelve (12)-month period ended January 31, 2023employees;
(viii) any Contract that is a mortgage, indenture, guaranty, financial, loan collective bargaining or credit union contract or agreement, security agreement or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted Liens;
(ix) any Contract that is written agreement for the employment of any individual on a hedgingfull-time, futurespart-time or consulting basis or for any retention bonus, options indemnification, severance or other derivative Contractany change of control or golden parachute agreement;
(x) any Contract for the acquisition agreement under which it has advanced or loaned any amount to any of any Person or any business unit thereof or the disposition of any assetsits directors, other than (A) Contracts for acquisitions or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereofofficers, and employees;
(xi) any royalty agreement under which the consequences of a default or similar Contract based termination could have a Material Adverse Effect on the revenues business, financial condition, operations, results of operations, or profits future prospects of any Transferred Subsidiarythe Business;
(xii) any Contract agreement for the purchase of indemnification any machinery or guaranty to capital assets, or the incurrence of any Person capital expenditure (including, but not made limited to, expenditures for the construction or material modification of any structure) involving in the ordinary course excess of businessUS $50,000 per agreement;
(xiii) any Contract with any Governmental Entitypurchase order or other agreement for the purchase of materials, supplies or services other than in the Ordinary Course of Business;
(xiv) any Contract license, distribution, dealership, marketing, sales agent, sales representative, franchise or similar agreements relating to or providing for the acquisition or disposition of any business or material portion marketing and/or sale of the assets of any Person (whether by merger, sale of stock, sale of assets products or otherwise)services;
(xv) any Contract under which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase priceindenture, mortgage, note, bond or other evidence of indebtedness, or any credit or similar contingent payment obligationagreement; and any guarantee of or agreement to acquire any such obligation of any other Person; and any letters of credit or performance bonds other than those in favor of Sellers;
(xvi) any Contract (A) containing covenants that restrict agreement which restricts Sellers from entering into any line of business or limit in any material respect agreement which contains geographic restrictions on the ability of any Transferred Subsidiary Sellers to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Personconduct business activities;
(xvii) any Contract that contains a licensecontract, sublicense license or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business agreement with respect to the Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific any which create obligations to make royalty payments in respect of the Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposesProperty;
(xviii) any Contract that contains contract giving any party the right to renegotiate or require a license, sublicense reduction in price or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, refund of payments previously made other than (A) non-exclusive licenses granted to customers in the ordinary course operation of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into Business in the ordinary course Ordinary Course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposesBusiness;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Actcontracts with any government or government agency or with any Person in connection with such Person's contract with any government or government agency;
(xx) any Contract between any member agreement for the sale of products or services containing warranty or guarantee obligations which represent material deviations from those which are included in the Seller Group or any standard terms and conditions of its affiliates (other than a Transferred Subsidiary), on sale in connection with the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effectBusiness;
(xxi) all contracts relating to the cleanup, abatement or other actions in connection with any Contract involving capital expenditures by a Transferred Subsidiary in excess Hazardous Material, the remediation of $1,500,000 in any existing environmental liabilities, violation of any Environmental Laws or relating to the aggregate, whether performance of any environmental study or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof;audit; or
(xxii) any Contract relating to the settlement other agreement (or group of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with respect to actions in such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involves: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (Brelated agreements) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value which involves consideration in excess of US $200,000 individually, 50,000. Sellers have delivered or $1,000,000 made available to Buyer a correct and complete copy of each written agreement listed in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxviiss.3(s) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Laws.
(b) All Contracts set forth or required to be set forth in Section 3.12 of the Disclosure Schedule (includingas amended to date) and a written summary setting forth the terms and conditions of each oral agreement referred to in ss.3(s) of the Disclosure Schedule. With respect to each such agreement, for the avoidance of doubt, any Contract that would have been required to be identified except as set forth in Section 3.12 ss.3(s) of the Disclosure Schedule had Section 3.12 (subject to bankruptcy, insolvency and other laws of general application): (A) the Disclosure Schedule been made at the Closing)agreement is legal, all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding binding, enforceable, and in full force and effect, subject, as to enforcement, to ; (B) the Enforceability Exceptions. The true, correct and complete copies of all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and agreement will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated hereby (including the assignments and assumptions referred to in ss.2 above, subject to ongoing obligations in connection therewithconsent to assignment as identified); (C) in material breach or default under the Business Contracts, Sellers are not and, to the Knowledge of SellerSellers and Stockholders, no any other party to any Business Contract thereto is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations not in connection therewith) in material breach or default thereunder. No default, and no event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, that (occurred which with or without notice or lapse of timetime would constitute a breach or default, or permit termination, modification, or acceleration, under the agreement; and (D) will or would reasonably be expected no party has repudiated any provision of the agreement. Except as provided in ss.3(s) of the Disclosure Schedule none of the Sellers is currently a party to (i) result in a material violation or breach of any agreement with any of the provisions current or former officers, directors, stockholders, managers, members or employees of Sellers, Stockholders or any Business Contract; (ii) give relative or any Person the right relation or Affiliate of such Persons. IMI is not a party to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member agreement other than agreements in respect of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, to the Knowledge of Seller, other communication regarding any actual or possible violation or breach of, or material default under, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights under any Business ContractShares.
Appears in 1 contract
Contracts. (a) Section 3.12(a) 2.14 of the Disclosure Schedule sets forth, lists the following agreements in effect as of the date hereof, each Transferred Contract hereof to which any Seller or any Business Subsidiary is a party and which relate primarily or exclusively to the Business as of the following types:date of this Agreement (such agreements being the "Material Contracts"):
(i) a collective bargaining any agreement (or other Contract with any labor organization, trade union, works council group of related agreements) for the lease of personal property from or similar bargaining representative (a “Collective Agreement”)to third parties providing for remaining lease payments in excess of $200,000 during the current term of such agreement;
(ii) a Contract with any Top Customer agreement (as defined below), including or group of related agreements) for the purchase orders covering a of products or the receipt of services which involves the remaining payment amount of more than $2,000,000 or more, other than (A) in 200,000 during the ordinary course current term of business, (B) non-disclosure agreements, (C) sales acknowledgments, (D) purchase orders covering a payment amount of under $2,000,000 or (E) statements of work that have been satisfied in fullsuch agreement;
(iii) a Contract with any Top Vendor agreement (as defined below), including a purchase or service order covering a payment amount group of $1,000,000 related agreements) for the sale of products or more, other than for the furnishing of services (A) non-disclosure agreementswith a customer of the Business from which more than $150,000 is expected to be received between June 30, 2006 and the end of the current term of such agreement, (B) sales acknowledgmentswith a customer of the Business from which more than $150,000 is expected to be received between June 30, 2006 and the end of the current term of such agreement in which any Seller or any Business Subsidiary has granted to such customer "most favored nation" pricing provisions or marketing or distribution rights relating to any products or territory or (C) purchase under which any Seller or service orders covering a payment amount Business Subsidiary is obligated to provide custom designed products or services for a customer of under the type included or to be included in the line item for Custom Services on the Business's profit and loss statement as of the Balance Sheet Date and from which more than $1,000,000 or (D) statements 50,000 is expected to be received between the Balance Sheet Date and the end of work that have been satisfied in fullthe current term of such agreement;
(iv) a Contract under which any Transferred Subsidiary has borrowed any money from, or issued any note, bond, debenture or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to or as of the Closing);
(v) a Contract agreement concerning the establishment, control, maintenance establishment or operation of a partnership, joint venture or limited liability company;
(v) any agreement where a Governmental Entity has provided a Tax or other similar agreement credit, made a grant, funded operations or arrangement, otherwise provided an economic benefit under which any Seller or any Business Subsidiary may be obligated to refund all or a portion of such benefit in each case that is material to the Businessevent the Business does not satisfy certain performance criteria;
(vi) all material Leasesany agreement (or group of related agreements) under which any Seller or any Business Subsidiary has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) involving more than $200,000 or under which any Seller or any Business Subsidiary has imposed (or may impose) a Security Interest on any of its assets, tangible or intangible;
(vii) a Contract (A) pursuant to which a distributor (including any affiliate agreement for the disposition of Seller) has the right to distribute or resell products any significant portion of the assets or business of any Seller or any Business and Subsidiary (B) involving aggregate payments in excess other than sales of $100,000 products in the twelve Ordinary Course of Business) or any agreement for the acquisition of the assets or business of any other entity (12)-month period ended January 31, 2023other than purchases of inventory or components in the Ordinary Course of Business);
(viii) any Contract that is a mortgage, indenture, guaranty, financial, loan or credit agreement, security agreement or is a Contract to under which any Transferred Seller or any Business Subsidiary is a party creating restricted from selling, licensing or granting otherwise distributing any Lien on of its technology or products, or providing services to, customers or potential customers or any assets class of customers, in any geographic area, during any period of time or properties any segment of any Transferred Subsidiary, other than Permitted Liensthe market or line of business;
(ix) any Contract that is a hedging, futures, options or other derivative Contract;
(x) any Contract for the acquisition of any Person or any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereof;
(xi) any royalty or similar Contract based on the revenues or profits of any Transferred Subsidiary;
(xii) any Contract of indemnification or guaranty to any Person not made in the ordinary course of business;
(xiii) any Contract with any Governmental Entity;
(xiv) any Contract relating to the acquisition or disposition of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);
(xv) any Contract under which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision agreement under which a Transferred Subsidiary has granted or assigned rights third party would be entitled to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under receive a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group license or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and right to any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof;
(xxii) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due Buyer Intellectual Property as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxivx) any Contract that provides that fees employment or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiaryconsulting agreement;
(xxvxi) any Contract which provides for indemnification agreement involving any current or former officer, director or stockholder of any officerSeller, director, manager any Business Subsidiary or employee by a Transferred Subsidiary (with respect to actions in such capacity)an Affiliate thereof;
(xxvixii) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates agreement under which Company Source Code has been placed in escrow by any Seller or involves: (A) the payment or delivery of cash or other consideration by the any Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxviixiii) any material managementother agreement (or group of related agreements) involving more than $200,000 in remaining receipts or payments during the current term of such agreement, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without entered into in the payment Ordinary Course of severance or other termination payments or benefits beyond that which is required by applicable LawsBusiness.
(b) All Contracts set forth The Sellers have made available to SkillSoft PLC or required to be set forth its advisors a complete and accurate copy of each agreement listed in Section 3.12 2.13 or Section 2.14 of the Disclosure Schedule (including, for the avoidance of doubt, any Contract that would have been required to be identified Schedule. Except as disclosed in Section 3.12 2.14(b) of the Disclosure Schedule had Section 3.12 Schedule, with respect to each agreement so listed: the agreement (i) is legal, valid and binding on the Asset Seller or the Business Subsidiary that is party thereto and, to the Knowledge of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such ContractsSellers, the “Business Contracts”) are valid, binding counterparties thereto and is enforceable and in full force and effect, subjectand (ii) upon consummation of the transactions contemplated by this Agreement, as to enforcement, to the Enforceability Exceptions. The true, correct and complete copies of all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions except to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). that any consents set forth in Section 3.12(b2.4(b) of the Disclosure Schedule provides an accurate are not obtained, shall continue in full force and complete description of the material terms of each Business Contract that is not in written form.
(c) effect without penalty or other adverse consequence. Except as set forth disclosed in Section 3.12(c2.14(b) of the Disclosure Schedule, none of the Transferred Subsidiaries neither any Seller nor any of their affiliates Business Subsidiary is orin breach of, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default under the under, any Material Contract to which it is a party, except for such breaches or defaults that would not have a Business Contracts, and, to the Knowledge of Seller, Material Adverse Effect and no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No event has occurred, andis pending, to the Knowledge of Seller, no circumstance or condition exists, that (with or without notice or lapse of time) will or would reasonably be expected to (i) result in a material violation or breach of any of the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, to the Knowledge of Sellerthe Sellers, other communication regarding any actual or possible violation or breach ofis threatened which, after the giving of notice, with lapse of time, or material otherwise, would constitute a breach or default underby any Seller or any Business Subsidiary or, to the Knowledge of the Sellers, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights other party under any Business Contractsuch agreement.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Skillsoft Public Limited Co)
Contracts. (a) Section 3.12(a) of the Disclosure Schedule 3(p), sets forth, as of the date hereof, each Transferred Contract of forth the following typescontracts and other agreements to which the Seller is a party:
(i) a collective bargaining any agreement (or other Contract with group of related agreements) for the lease of personal property to or from any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”)Person providing for lease payments in excess of $1,000 per annum;
(ii) a Contract with any Top Customer agreement (as defined below)or group of related agreements) for the purchase or sale of commodities, including purchase orders covering a payment amount supplies, products or other personal property or for the furnishing or receipt of $2,000,000 or moreservices, other than (A) in the ordinary course performance of businesswhich will extend over a period of more than one year, (B) non-disclosure agreements, that involves consideration in excess of $1,000 or (C) sales acknowledgments, (D) purchase orders covering a payment amount of under $2,000,000 or (E) statements of work that have been satisfied in fullis not terminable by the Seller without penalty on less than 90 days notice;
(iii) any agreement concerning a Contract with any Top Vendor (as defined below), including a purchase partnership or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in fulljoint venture;
(iv) a Contract any agreement (or group of related agreements) under which the Seller has created, incurred, assumed or guaranteed any Transferred Subsidiary has borrowed any money from, or issued any note, bond, debenture or other evidence of indebtedness of for borrowed money toor any capitalized lease obligation, any personin excess of $1,000 or under which the Seller has imposed a Security Interest on its assets, including any guarantee relating thereto (other than any Contract that will be terminated prior to tangible or as of the Closing)intangible;
(v) a Contract any material agreement concerning the establishment, control, maintenance confidentiality or operation of a partnership, joint venture or other similar agreement or arrangement, in each case that is material to the Businessnoncompetition;
(vi) all any material Leasesagreement with the Seller Stockholder or his Affiliates (other than the Seller);
(vii) a Contract (A) pursuant to which a distributor (including any affiliate of Seller) has profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance or other material plan or arrangement for the right to distribute or resell products benefit of the Business Seller’s current or former directors, officers and (B) involving aggregate payments in excess of $100,000 in the twelve (12)-month period ended January 31, 2023employees;
(viii) any Contract that is a mortgage, indenture, guaranty, financial, loan or credit collective bargaining agreement, security agreement or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted Liens;
(ix) any Contract that is agreement for the employment of any individual on a hedgingfull-time, futurespart-time, options consulting or other derivative Contractbasis or providing material severance benefits;
(x) any Contract for agreement under which the acquisition Seller has advanced or loaned any amount to any of any Person or any business unit thereof or its directors, officers and employees outside the disposition Ordinary Course of any assets, other than (A) Contracts for acquisitions or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereofBusiness;
(xi) any royalty agreement under which the consequences of a default or similar Contract based on the revenues or profits of any Transferred Subsidiary;termination could have a Material Adverse Effect; or
(xii) any Contract other agreement (or group of indemnification or guaranty to any Person not made in related agreements) the ordinary course performance of business;
(xiii) any Contract with any Governmental Entity;
(xiv) any Contract relating to the acquisition or disposition of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);
(xv) any Contract under which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary involves consideration in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which 5,000. The Seller has material ongoing obligations following the date hereof;
(xxii) any Contract relating delivered to the settlement Buyer a correct and complete copy of any Proceeding pursuant each written agreement listed on Schedule 3(p) and a written summary setting forth the material terms and conditions of each oral agreement referred to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with on Schedule 3(p). With respect to actions in each such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates written or involvesoral agreement: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having agreement is a value in excess of $200,000 individuallylegal, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individuallyvalid, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material managementbinding, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Laws.
(b) All Contracts set forth or required to be set forth in Section 3.12 enforceable obligation of the Disclosure Schedule (including, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding parties thereto and in full force and effect, subject, as to enforcement, to the Enforceability Exceptions. The true, correct and complete copies of effect in all written Business Contracts material respects; (including all amendments, supplements, modifications, annexes or schedules theretoB) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that no party is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default under the Business Contracts, and, to the Knowledge and no event has occurred which with notice or lapse of Seller, no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in time would constitute a material breach or default thereunder. No event or permit termination, modification or acceleration, under the agreement; (C) no party has occurred, and, repudiated any material provision of the agreement; and (D) no party has prepaid any amounts payable to the Knowledge Seller under such agreement more than 30 days in advance of Seller, no circumstance or condition exists, that (with or without notice or lapse of time) will or would reasonably be expected to (i) result in a material violation or breach of any of the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, to the Knowledge of Seller, other communication regarding any actual or possible violation or breach of, or material default under, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights under any Business Contractsuch amounts being due.
Appears in 1 contract
Sources: Asset Purchase Agreement (Newtek Business Services Inc)
Contracts. (a) Section 3.12(a) 2.14 of the Disclosure Schedule sets forth, lists the following agreements (written or oral) to which the Seller is a party as of the date hereof, each Transferred Contract of this Agreement (other than this Agreement and the following types:Ancillary Agreements):
(i) any agreement (or group of related agreements) for the lease of personal property from or to third parties providing for lease payments in excess of $5,000 per annum or having a collective bargaining agreement or other Contract with any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”)remaining term longer than three months;
(ii) a Contract with any Top Customer agreement (as defined below), including or group of related agreements) for the purchase orders covering a payment amount or sale of $2,000,000 products or more, other than for the furnishing or receipt of services (A) in the ordinary course which calls for performance over a period of businessmore than one year, (B) non-disclosure agreementswhich involves more than the sum of $5,000, or (C) sales acknowledgmentsin which the Seller has granted manufacturing rights, (D) "most favored nation" pricing provisions or marketing or distribution rights relating to any products or territory or has agreed to purchase orders covering a payment amount minimum quantity of under $2,000,000 goods or (E) statements of work that have been satisfied in fullservices or has agreed to purchase goods or services exclusively from a certain party;
(iii) a Contract with any Top Vendor (as defined below), including a purchase or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in full;
(iv) a Contract under which any Transferred Subsidiary has borrowed any money from, or issued any note, bond, debenture or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to or as of the Closing);
(v) a Contract agreement concerning the establishment, control, maintenance establishment or operation of a partnership, joint venture or limited liability company;
(iv) any agreement (or group of related agreements) under which it has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) involving more than $5,000 or under which it has imposed (or may impose) a Security Interest on any of its assets, tangible or intangible;
(v) any agreement for the disposition of any significant portion of the assets or business of the Seller (other similar than sales of products in the Ordinary Course of Business) or any agreement for the acquisition of the assets or arrangement, business of any other entity (other than purchases of inventory or components in each case that is material to the Ordinary Course of Business);
(vi) all material Leasesany agreement concerning exclusivity or confidentiality;
(vii) a Contract (A) pursuant to which a distributor (including any affiliate of Seller) has the right to distribute employment or resell products of the Business and (B) involving aggregate payments in excess of $100,000 in the twelve (12)-month period ended January 31, 2023consulting agreement;
(viii) any Contract that is a mortgageagreement involving any current or former officer, indenture, guaranty, financial, loan manager or credit agreement, security agreement Member or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted Liensan Affiliate thereof;
(ix) any Contract that is agreement under which the consequences of a hedging, futures, options default or other derivative Contracttermination would reasonably be expected to have a Seller Material Adverse Effect;
(x) any Contract agreement which contains any provisions requiring the Seller to indemnify any other party (excluding indemnities contained in agreements for the acquisition purchase, sale or license of any Person or any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory products entered into in the ordinary course Ordinary Course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereofBusiness);
(xi) any royalty agreement that could reasonably be expected to have the effect of prohibiting or similar Contract based on impairing the revenues conduct of the business of the Seller or profits of the Buyer or any Transferred Subsidiaryof its subsidiaries as currently conducted and as currently proposed to be conducted;
(xii) any Contract agreement under which the Seller is restricted from selling, licensing or otherwise distributing any of indemnification its technology or guaranty to products, or providing services to, customers or potential customers or any Person not made class of customers, in any geographic area, during any period of time or any segment of the ordinary course market or line of business;
(xiii) any Contract with agreement which would entitle any Governmental Entity;third party to receive a license or any other right to intellectual property of the Buyer or any of the Buyer's Affiliates following the Closing; and
(xiv) any Contract relating to the acquisition other agreement (or disposition group of any business related agreements) either involving more than $10,000 or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);
(xv) any Contract under which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks not entered into in the ordinary course Ordinary Course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof;
(xxii) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with respect to actions in such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involves: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable LawsBusiness.
(b) All Contracts set forth or required The Seller has delivered to be set forth the Buyer a complete and accurate copy of each agreement listed in Section 3.12 2.14 of the Disclosure Schedule (including, for the avoidance of doubt, any Schedule. With respect to each Assigned Contract that would have been required to be identified so listed and except as disclosed in Section 3.12 2.14 of the Disclosure Schedule had Section 3.12 of Schedules: (i) the Disclosure Schedule been made at the Closing)agreement is legal, all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding and enforceable and in full force and effect; (ii) for those agreements to which the Seller is a party, subjectthe agreement is assignable by the Seller to the Buyer without the consent or approval of any party and 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 enforcementthe Closing; and (iii) neither the Seller nor, to the Enforceability Exceptions. The true, correct and complete copies of all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) knowledge of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that Seller, any other party, is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default under the Business Contractsviolation of, and, to the Knowledge of Seller, no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No under, any such agreement, and no event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, that (with or without notice or lapse of time) will or would reasonably be expected to (i) result in a material violation or breach of any of the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice is pending or, to the Knowledge knowledge of the Seller, other communication regarding any actual or possible violation or breach ofis threatened, which, after the giving of notice, with lapse of time, or material otherwise, would constitute a breach or default underby the Seller or, to the knowledge of the Seller, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights other party under any Business Contractsuch agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Suncrest Global Energy Corp)
Contracts. Schedule 4.22 contains a true and correct list and description of the following contracts and other agreements, whether written or oral, to which the Target or any Subsidiary is a party or by which the Target or any Subsidiary is bound (the "Material Contracts"):
(a) Section 3.12(aany agreement (or group of related agreements with the same Person) for the lease of personal property to or from any Person (whether or not capitalized under GAAP) providing for lease payments in excess of $25,000 per year,
(b) other than blanket purchase orders in an aggregate amount not to exceed $500,000 annually and of a duration of less than one (1) year, any agreement (or group of related agreements) not cancelable by the Target or any Subsidiary without penalty on 90 days or less notice for the purchase or sale of raw materials, commodities, supplies, products or other personal property, or for the furnishing or receipt of services, the performance of which will extend over a period of more than one (1) year, reasonably be expected to result in a Loss to the Target or any Subsidiary exceeding $25,000 or involve consideration in excess of $50,000,
(c) any agreement concerning a partnership or joint venture,
(d) any agreement (or group of related agreements) under which the Target or any Subsidiary has created, incurred, assumed, or guaranteed (A) any Indebtedness or (B) any Indebtedness or other deferred continuing payment obligation relating to any prior acquisition by the Target or any Subsidiary (including, without limitation any obligation relating to non-compete covenants or consulting),
(e) any agreement under which the Target or any Subsidiary has imposed an Encumbrance other than a Permitted Encumbrance on any of its assets, tangible or intangible,
(f) any letter of credit or performance bond,
(g) any confidentiality or noncompetition or similar agreement, other than Employee Contracts and non-disclosure agreements with other Persons entered into in the ordinary course of the Disclosure Schedule sets forth, as Business,
(h) any agreement with any Affiliate of the date hereof, each Transferred Contract of the following types:Target (other than a Subsidiary) which are not on an arm's length basis and which could not be readily obtained from other sources,
(i) a any profit sharing, deferred compensation, severance, or other plan or arrangement for the benefit of the Target or any Subsidiary's current or former partners, shareholders, directors, officers or employees (other than any Employee Benefit Plans or Employee Contract),
(j) any collective bargaining agreement,
(k) any agreement for the prospective acquisition of the business or product line of any other Person,
(l) any distributor, sales representative or dealer agreement,
(m) any Intellectual Property license or royalty agreement,
(n) any independent contractor agreement requiring payments by the Target or any Subsidiary in excess of $25,000 per year,
(o) any currency hedging contract,
(p) any agreement providing for indemnification by or for the benefit of the Target or any Subsidiary other than routine indemnification agreements entered into in the ordinary course of the Business,
(q) any agreement or other Contract contract for the lease of Real Property to or from any Person,
(r) any agreement with any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”);Governmental Authority,
(iis) a Contract any agreement or contract entered into in connection with the settlement of any Top Customer litigation within the last five years,
(as defined below), including purchase orders covering a payment amount of $2,000,000 t) any agreement or more, other than (A) contract which was not entered into in the ordinary course of business, (B) nonwhich contains terms other than on an arms-disclosure agreements, (C) sales acknowledgments, (D) purchase orders covering a payment amount length basis or which is in excess of under $2,000,000 the normal business requirements of the business of the Target or (E) statements of work that have been satisfied in full;any Subsidiary,
(iiiu) a Contract with any Top Vendor (as defined below), including a purchase agreement or service order covering a payment amount contract which requires the Target or any Subsidiary to make any capital expenditures in excess of $1,000,000 or more25,000, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in full;
(iv) a Contract under which any Transferred Subsidiary has borrowed any money from, or issued any note, bond, debenture or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to or as of the Closing);or
(v) any other agreement (or group of related agreements) not cancelable by the Target or any Subsidiary without penalty on 90 days or less notice the performance of which will extend over a Contract concerning the establishment, control, maintenance period of more than one (1) year or operation of a partnership, joint venture or other similar agreement or arrangement, in each case that is material to the Business;
(vi) all material Leases;
(vii) a Contract (A) pursuant to which a distributor (including any affiliate of Seller) has the right to distribute or resell products of the Business and (B) involving aggregate payments involves consideration in excess of $100,000 in the twelve (12)-month period ended January 3150,000, 2023;
(viii) any Contract that is a mortgage, indenture, guaranty, financial, loan or credit agreement, security agreement or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted Liens;
(ix) any Contract that is a hedging, futures, options or other derivative Contract;
(x) any Contract for the acquisition of any Person or any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereof;
(xi) any royalty or similar Contract based on the revenues or profits of any Transferred Subsidiary;
(xii) any Contract of indemnification or guaranty to any Person not made in the ordinary course of business;
(xiii) any Contract with any Governmental Entity;
(xiv) any Contract relating to the acquisition or disposition of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);
(xv) any Contract under which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, consequence of default or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit termination could result in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary Losses in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course 25,000. True and correct copies of business consistent with past practices, which has material ongoing obligations following the date hereof;
(xxii) any Contract relating to the settlement all written Material Contracts and written descriptions of any Proceeding pursuant to which any Transferred Subsidiary or the Business will all oral Material Contracts have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result Buyer. To the Knowledge of the consummation of any Target, each of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with respect to actions in such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involves: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Material Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Laws.
(b) All Contracts set forth or required to be set forth in Section 3.12 of the Disclosure Schedule (including, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding and enforceable by the Target or the applicable Subsidiary in accordance with its terms (subject to the Enforceability Limitations), is not subject to termination except in accordance with its terms, and is not subject to termination by reason of a Change of Control. To the Knowledge of the Target, except as set forth on Schedule 4.22, each of the Material Contracts is in full force and effect, subjectall fees, as to enforcementrents, royalties and other payments due thereunder are current, neither the Target, any Subsidiary nor any other party is in material default thereunder or in material breach thereof, and each Material Contract will remain valid, binding, enforceable (subject to the Enforceability Exceptions. The true, correct Limitations) and complete copies of all written Business Contracts in full force and effect following the Closing (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions except to the extent required to comply that any such Material Contract has expired or been terminated in accordance with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Dataits terms). Section 3.12(b) of Neither the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries Target nor any Subsidiary has during the past five years sought or obtained any waiver of their affiliates is oror under any material provision of any Material Contract (including, since July 31without limitation, 2021any waiver from any lender or other creditor of any material term, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach condition or default under the Business Contracts, and, to any Material Contract). To the Knowledge of Sellerthe Target, there exists no other party to any Business Contract is event or occurrence, condition or act which constitutes or, since July 31with the giving of notice, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, that (with or without notice or lapse of time) will time or the happening of any future event or condition, would reasonably be expected to (i) result in become, a material violation default by the Target, any Subsidiary or breach of any other party under any of the provisions Material Contracts and the Target, has not received notice of any Business Contract; (ii) give any Person the right to declare and does not Know of a material threatened default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, to the Knowledge of Seller, other communication regarding any actual or possible violation or breach of, or material default under, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights under any Business ContractMaterial Contracts.
Appears in 1 contract
Sources: Merger Agreement (Idex Corp /De/)
Contracts. (a) Section 3.12(a) of the Disclosure Schedule sets forth, as of the date hereof, each Transferred Contract of SCHEDULE 3.17 lists the following typesContracts to which Seller is a party:
(i) a collective bargaining agreement any Contract for the lease of personal property to or other Contract with from any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”)Person providing for lease payments after the date hereof in excess of $25,000;
(ii) a any Contract with any Top Customer (as defined below)for the purchase or sale of raw materials, including purchase orders covering a payment amount commodities, supplies, products, or other personal property, or for the furnishing or receipt of $2,000,000 or moreservices, other than (A) in the ordinary course of business, (B) non-disclosure agreements, (C) sales acknowledgments, (D) purchase orders covering a payment amount of under $2,000,000 or (E) statements of work that have been satisfied in fullperformance;
(iii) a any Contract with any Top Vendor (as defined below), including a purchase involving fixed price or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in fullfixed volume arrangements;
(iv) a Contract under which any Transferred Subsidiary has borrowed any money from, or issued any note, bond, debenture or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to concerning joint venture, partnership, manufacturer, development or as supply or which involves royalty payments or a sharing of the Closing)revenues, profits, losses, costs or Liabilities by Seller;
(v) any Contract under which Seller has created, incurred, assumed, or guaranteed any indebtedness for borrowed money or factored any receivables, any Capital Lease or under which Seller has imposed a Contract concerning the establishmentLien on any of its assets, control, maintenance tangible or operation of a partnership, joint venture or other similar agreement or arrangement, in each case that is material to the Businessintangible;
(vi) all material Leases;any Contract concerning any acquisition, merger or similar type of transaction entered into by Seller during the six years prior to the date hereof,
(vii) any Contract concerning collective bargaining terms or arrangements with any labor union or other employee representative of a Contract (A) pursuant to which a distributor (including any affiliate group of Seller) has the right to distribute or resell products of the Business and (B) involving aggregate payments in excess of $100,000 in the twelve (12)-month period ended January 31, 2023;employees,
(viii) any Contract that is a mortgage, indenture, guaranty, financial, loan or credit agreement, security agreement or is a Contract to which with any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted Liens;Governmental Authority,
(ix) any Contract that is a hedgingconcerning confidentiality, futures, options non-competition or other derivative Contractrestrictions on the manner in which the Business may be conducted;
(x) any Contract for the acquisition involving any of any Person Stockholder or any business unit thereof or the disposition of any assets, their Affiliates (other than (A) Contracts for acquisitions or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereofSeller);
(xi) any royalty or similar Contract based on the revenues or profits of any Transferred SubsidiaryCompensation and Benefits Plan;
(xii) any Contract involving the employment of indemnification or guaranty to any Person not made in the ordinary course of businesson a full-time, part-time, consulting, or other basis or providing severance benefits;
(xiii) any Contract with under which Seller has advanced or loaned any Governmental Entityamount to any of its directors, officers, and employees outside the Ordinary Course of Business;
(xiv) any Contract relating to under which the acquisition consequences of a default or disposition of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise)termination could involve a Material Adverse Effect;
(xv) any Contract under which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase pricesettlement, conciliation or similar contingent Contract, the performance of which will involve payment obligationafter the date hereof in excess of $25,000;
(xvi) any Contract (A) containing covenants that restrict under which Seller has advanced or limit in loaned any material respect the ability of any Transferred Subsidiary to engage other Person amounts in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employeesaggregate exceeding $25,000; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;or
(xvii) any Contract that contains a licenseContract, sublicense or other provision under the performance of which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary involves consideration in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof;25,000.
(xxiib) any Seller has delivered to Buyer a correct and complete copy of each written Contract relating listed in SCHEDULE 3.17 (as amended to date) and a written summary setting forth the settlement terms and conditions of any Proceeding pursuant each oral agreement referred to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with SCHEDULE 3.17. With respect to actions in each such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involvesContract: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individuallyContract is legal, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Laws.
(b) All Contracts set forth or required to be set forth in Section 3.12 of the Disclosure Schedule (including, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding binding, enforceable, and in full force and effect; (B) the Contract will continue to be legal, subjectvalid, as binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated hereby (including the assignments and assumptions referred to enforcementin Article II above); (C) neither Seller nor, to the Enforceability Exceptions. The trueKnowledge of Seller, correct and complete copies of all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available any other party to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business such Contract that is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default under the Business Contractsdefault, and, to the Knowledge of Seller, no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, occurred that (with or without notice or lapse of timetime would constitute a breach or default, or permit termination, modification, or acceleration, under the Contract; and (D) will or would reasonably be expected to (i) result in a material violation or breach of no party has repudiated any provision of the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, to the Knowledge of Seller, other communication regarding any actual or possible violation or breach of, or material default under, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights under any Business Contract.
Appears in 1 contract
Sources: Asset Purchase Agreement (Phoenix Footwear Group Inc)
Contracts. (a) Section 3.12(a3(p) of the Disclosure Schedule sets forth, as of the date hereof, each Transferred Contract of lists the following typescontracts and other agreements to which any of SRT, Syntech and its Subsidiaries is a party:
(i) a collective bargaining any agreement (or other Contract with group of related agreements) for the lease of personal property to or from any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”)Person providing for lease payments in excess of Italian Lire 75,000,000 per annum;
(ii) any agreement (or group of related agreements) for the purchase or sale of raw materials, commodities, supplies, products, or other personal property, or for the furnishing or receipt of services, the performance of which will extend over a Contract with period of more than one year, that would result in a material loss to any Top Customer (as defined below)of SRT, including purchase orders covering a payment amount Syntech and its Subsidiaries if terminated, or that involves consideration in excess of $2,000,000 or more, other than (A) in the ordinary course of business, (B) non-disclosure agreements, (C) sales acknowledgments, (D) purchase orders covering a payment amount of under $2,000,000 or (E) statements of work that have been satisfied in fullItalian Lire 75,000,000;
(iii) a Contract with any Top Vendor (as defined below), including a purchase or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in full;
(iv) a Contract under which any Transferred Subsidiary has borrowed any money from, or issued any note, bond, debenture or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to or as of the Closing);
(v) a Contract agreement concerning the establishment, control, maintenance or operation of a partnership, joint venture or other similar consortium;
(iv) any agreement (or arrangementgroup of related agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, in each case that is material to the Businessexcess of Italian Lire 75,000,000 or under which it has imposed a Security Interest on any of its assets, tangible or intangible;
(v) any agreement concerning confidentiality or noncompetition;
(vi) all material Leasesany profit sharing, stock or quota option, stock or quota purchase, stock or quota appreciation, deferred compensation, severance, or other plan or arrangement for the benefit of its current or former directors, officers, and employees;
(vii) a Contract any collective bargaining agreement at the company level (A) pursuant to which a distributor (including any affiliate of Seller) has the right to distribute or resell products of the Business and (B) involving aggregate payments in excess of $100,000 in the twelve (12)-month period ended January 31, 2023"contratti integrativi aziendali");
(viii) any Contract that is a mortgage, indenture, guaranty, financial, loan or credit agreement, security agreement or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties for the employment of any Transferred Subsidiaryindividual on a full-time, part-time, consulting, or other than Permitted Liensbasis providing annual compensation in excess of Italian Lire 75,000,000;
(ix) any Contract that is a hedgingagreement under which it has advanced or loaned any amount to any of its directors, futuresofficers, options or other derivative Contractemployees;
(x) any Contract for agreement under which the acquisition consequences of any Person a default or any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory termination could result in the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereof;a Material Adverse Change; or
(xi) any royalty other agreement (or similar Contract based on group of related agreements) the revenues or profits performance of any Transferred Subsidiary;
(xii) any Contract which involves consideration in excess of indemnification or guaranty to any Person not made in the ordinary course of business;
(xiii) any Contract with any Governmental Entity;
(xiv) any Contract relating to the acquisition or disposition of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);
(xv) any Contract under which the Transferred Subsidiaries Italian Lire 75,000,000. The Sellers have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted the Buyer a correct and complete copy of each written agreement listed in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(iSection 3(p) of Regulation S-K under the Securities Act;
Disclosure Schedule (xxas amended to date) any Contract between any member and a written summary setting forth the terms and conditions of each oral agreement referred to in Section 3(p) of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof;
(xxii) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with Disclosure Schedule. With respect to actions in each such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involvesagreement: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individuallyagreement is legal, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Laws.
(b) All Contracts set forth or required to be set forth in Section 3.12 of the Disclosure Schedule (including, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding binding, enforceable, and in full force and effect, subject, as to enforcement, to ; (B) the Enforceability Exceptions. The true, correct and complete copies of all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and agreement will continue to be subject to ongoing obligations legal, valid, binding, enforceable, and in connection therewithfull force and effect on identical terms following the consummation of the transactions contemplated hereby; and (C) no party is in material breach or default under the Business Contractsdefault, and, to the Knowledge of Seller, and no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, that (occurred which with or without notice or lapse of time) will time would constitute a breach or would reasonably be expected to (i) result in a material violation or breach of any of the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, to the Knowledge of Seller, other communication regarding any actual or possible violation or breach ofdefault, or material default underpermit termination, any Business Contract. No member of modification, or acceleration, under the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights under any Business Contractagreement.
Appears in 1 contract
Sources: Stock Purchase Agreement (McWhorter Technologies Inc /De/)
Contracts. (a) Section 3.12(a4.18(a) of the Disclosure Schedule sets forthcontains a complete and accurate list of the following written contracts and agreements, and any amendments, modifications or supplements thereto as of the date hereofhereof (“Contracts”), each Transferred Contract of to which the following typesAcquired Companies are a party:
(i) a any contract or agreement that involves performance of services or delivery of goods, commodities, supplies, products, materials or other personal property by the Acquired Companies of an amount or value in excess of $500,000;
(ii) any contract or agreement that involves performance of services or delivery of goods, commodities, supplies, products, materials or other personal property to the Acquired Companies of an amount or value in excess of $500,000;
(iii) any contract or agreement that was not entered into in the Ordinary Course of Business;
(iv) any lease, rental or occupancy agreement, license, installment and conditional sale agreement, or other contract or agreement affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property;
(v) any licensing agreement or other contract with respect to the Intellectual Property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property;
(vi) any collective bargaining agreement or other Contract contract to or with any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”);
(ii) a Contract with any Top Customer (as defined below), including purchase orders covering a payment amount of $2,000,000 or more, other than (A) in the ordinary course of business, (B) non-disclosure agreements, (C) sales acknowledgments, (D) purchase orders covering a payment amount of under $2,000,000 or (E) statements of work that have been satisfied in full;
(iii) a Contract with any Top Vendor (as defined below), including a purchase or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in full;
(iv) a Contract under which any Transferred Subsidiary has borrowed any money from, or issued any note, bond, debenture union or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to or as of the Closing);
(v) a Contract concerning the establishment, control, maintenance or operation employee representative of a partnership, joint venture group of employees including renewals or other similar agreement or arrangement, in each case that is material to the Business;
(vi) all material Leasesextensions;
(vii) any contract or agreement for the employment of any individual on a Contract (A) pursuant to which a distributor (including any affiliate of Seller) has the right to distribute full-time, part-time, consulting or resell products of the Business and (B) involving aggregate payments other basis providing annual compensation in excess of $100,000 or providing severance benefits in the twelve (12)-month period ended January 31, 2023excess of one month’s base salary;
(viii) any Contract that is contract or agreement between the Acquired Companies and a mortgage, indenture, guaranty, financial, loan Seller or credit agreement, security agreement or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted Liensits Affiliates;
(ix) any Contract that is a hedgingjoint venture agreement, futures, options partnership agreement or other derivative Contractsimilar contract or agreement;
(x) any Contract for contract or agreement containing covenants that in any way purport to restrict the acquisition business activity of any Person the Acquired Companies or any business unit thereof Affiliate of the Acquired Companies or limit the disposition freedom of the Acquired Companies or any assets, other than (A) Contracts for acquisitions or dispositions Affiliate of inventory the Acquired Companies to engage in the ordinary course any line of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereofcompete with any Person;
(xi) any royalty contract or similar Contract agreement providing for commissions or payments to or by any Person based on the revenues sales, purchases or profits of any Transferred Subsidiaryprofits;
(xii) any Contract power of indemnification or guaranty to any Person not made in the ordinary course of businessattorney that is currently effective and outstanding;
(xiii) any Contract with any Governmental Entityprofit sharing, stock option, stock purchase, stock appreciation, deferred compensation, termination, severance, change of control or other agreement, plan or arrangement for the benefit of the Acquired Companies’ current or former managers, directors, officers and employees;
(xiv) any Contract relating contract or agreement under which the Acquired Companies have advanced or loaned any amount to the acquisition any of its managers, directors, officers or disposition of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise)employees;
(xv) any Contract contract or agreement (or group of related contracts or agreements) under which the Transferred Subsidiaries Acquired Companies have an obligation with respect to an “earn out,” contingent purchase pricecreated, incurred, assumed or guaranteed any indebtedness for borrowed money or other Liability or obligation, or similar contingent payment any capitalized lease obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete written warranty, guaranty, and/or other similar undertaking with respect to contractual performance extended by the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any PersonAcquired Companies;
(xvii) any Contract that contains a license, sublicense other contract or other provision agreement under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof;
(xxii) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated consummated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by would constitute a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with respect to actions in such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involves: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Laws.
(b) All Contracts set forth or required to be set forth in Section 3.12 of the Disclosure Schedule (including, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding and in full force and effect, subject, as to enforcement, to the Enforceability Exceptions. The true, correct and complete copies of all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default under the Business Contracts, and, to the Knowledge of Seller, no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, that thereunder (with or without notice or lapse of time, or both) will without the prior consent of another party thereunder; and
(xviii) any other contract or would reasonably be expected to agreement (ior group of related contracts or agreements) result in a material violation or breach of any of the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member which involves consideration in excess of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, to the Knowledge of Seller, other communication regarding any actual or possible violation or breach of, or material default under, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights under any Business Contract$1,000,000.
Appears in 1 contract
Contracts. (a) Section 3.12(a) 3.14 of the Zipcar Disclosure Schedule sets forth, lists the following Contracts to which Zipcar or any Zipcar Subsidiary is a party as of the date hereofof this Agreement (each such Contract, each Transferred Contract of the following types:a “Zipcar Material Contract”):
(i) any Contract for the lease of personal property from or to third parties providing for lease payments in excess of $75,000 per annum or having a collective bargaining agreement or other Contract with any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”)remaining term longer than 12 months;
(ii) a any Contract with any Top Customer (as defined below), including for the purchase orders covering a payment amount or sale of $2,000,000 products or more, other than for the furnishing or receipt of services (A) in the ordinary course which calls for performance over a period of businessmore than one year, (B) non-disclosure agreementswhich involves more than the sum of $75,000, or (C) sales acknowledgments, (D) in which Zipcar or any Zipcar Subsidiary has granted “most favored nation” pricing provisions or marketing or distribution rights relating to any products or territory or has agreed to purchase orders covering a payment amount minimum quantity of under $2,000,000 goods or (E) statements of work that have been satisfied in fullservices or has agreed to purchase goods or services exclusively from a certain party;
(iii) a Contract with any Top Vendor (as defined below), including a purchase or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in full;
(iv) a Contract under which any Transferred Subsidiary has borrowed any money from, or issued any note, bond, debenture or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to or as of the Closing);
(v) a Contract concerning the establishment, control, maintenance establishment or operation of a partnership, joint venture or limited liability company;
(iv) any Contract under which it has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) involving more than $75,000 or under which it has imposed (or may impose) a Security Interest on any of its assets, tangible or intangible;
(v) any Contract for the disposition of any significant portion of the assets or business of Zipcar or any Zipcar Subsidiary (other similar agreement than sales of products in the Ordinary Course of Business) or arrangement, any Contract for the acquisition of the assets or business of any other entity (other than purchases of inventory or components in each case that is material to the Ordinary Course of Business);
(vi) all material Leasesany employment or consulting Contract;
(vii) a any Contract between Zipcar or any Zipcar Subsidiary, on the one hand, and, on the other hand, (A) pursuant any current officer, director, stockholder, or, to which a distributor (including the knowledge of Zipcar, any affiliate former officer, of Seller) has the right to distribute Zipcar or resell products of the Business and any Zipcar Subsidiary, or (B) involving aggregate payments in excess of $100,000 in the twelve (12)-month period ended January 31, 2023an Affiliate thereof;
(viii) any Contract that is under which the consequences of a mortgage, indenture, guaranty, financial, loan default or credit agreement, security agreement or is termination would reasonably be expected to have a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted LiensZipcar Material Adverse Effect;
(ix) any Contract that is a hedgingwhich contains any provisions requiring Zipcar or any Zipcar Subsidiary to indemnify any other party (excluding indemnities contained in agreements for the purchase, futures, options sale or other derivative Contractlicense of products entered into in the Ordinary Course of Business and excluding Zipcar Material Contracts otherwise set forth on Section 3.14 of the Zipcar Disclosure Schedule);
(x) any Contract for that could reasonably be expected to have the acquisition effect of any Person prohibiting or impairing the conduct of the business of Zipcar or any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereofZipcar Subsidiaries as currently conducted;
(xi) any royalty Contract under which Zipcar or similar Contract based on any Zipcar Subsidiary 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 revenues market or profits line of any Transferred Subsidiary;business; and
(xii) any other Contract of indemnification either involving more than $75,000 or guaranty to any Person not made in the ordinary course of business;
(xiii) any Contract with any Governmental Entity;
(xiv) any Contract relating to the acquisition or disposition of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);
(xv) any Contract under which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course Ordinary Course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof;
(xxii) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with respect to actions in such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involves: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable LawsBusiness.
(b) All Contracts set forth Zipcar has delivered or required otherwise made available to be set forth in Section 3.12 the Company a complete and accurate copy of each Zipcar Material Contract. With respect to each Zipcar Material Contract: (i) the Disclosure Schedule (includingContract or agreement is legal, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding and enforceable and in full force and effecteffect in accordance with its terms, subjectexcept as may be limited by bankruptcy, as insolvency, reorganization, moratorium or similar laws and equitable principles relating to enforcementor limiting creditors’ rights generally; and (ii) neither Zipcar nor any Zipcar Subsidiary nor, to the Enforceability Exceptions. The trueknowledge of Zipcar, correct and complete copies of all written Business Contracts (including all amendmentsany other party, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default under the Business Contractsviolation of, and, to the Knowledge of Seller, no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No under, any such Contract, and no event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, that (with or without notice or lapse of time) will or would reasonably be expected to (i) result in a material violation or breach of any of the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice is pending or, to the Knowledge knowledge of SellerZipcar, other communication regarding any actual or possible violation or breach ofis threatened, which, after the giving of notice, with lapse of time, or material otherwise, would constitute a breach or default underby Zipcar or any Zipcar Subsidiary or, to the knowledge of Zipcar, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights other party under any Business such Contract.
Appears in 1 contract
Sources: Merger Agreement (Zipcar Inc)
Contracts. (a) Section 3.12(a) 3.12 of the Disclosure Schedule sets forth, lists all agreements (written or oral) to which the Seller is a party as of the date hereofof this Agreement, each Transferred Contract of arranged in the following typescategories:
(i) a collective bargaining any agreement (or other Contract with any labor organization, trade union, works council group of related agreements) for the lease of personal property from or similar bargaining representative (a “Collective Agreement”)to third parties;
(ii) a Contract with any Top Customer agreement (as defined below), including or group of related agreements) for the purchase orders covering a payment amount or sale of $2,000,000 products or more, other than (A) in for the ordinary course furnishing or receipt of business, (B) non-disclosure agreements, (C) sales acknowledgments, (D) purchase orders covering a payment amount of under $2,000,000 or (E) statements of work that have been satisfied in fullservices;
(iii) a Contract with any Top Vendor (as defined below), including a purchase agreement in which the Seller has granted “most favored nation” pricing provisions or service order covering a payment amount of $1,000,000 exclusive marketing or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase distribution rights relating to any products or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in fullservices;
(iv) a Contract under which any Transferred Subsidiary has borrowed any money from, or issued any note, bond, debenture or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to or as of the Closing);
(v) a Contract agreement concerning the establishment, control, maintenance establishment or operation of a partnership, joint venture or other similar limited liability company;
(v) any agreement (or arrangement, in each case that is material to the Businessgroup of related agreements) evidencing Seller Indebtedness;
(vi) all material Leasesany agreement for the disposition of any significant portion of the assets or business of the Seller or any agreement for the acquisition of the assets or business of any other Person (other than purchases of supplies in the Ordinary Course of Business);
(vii) a Contract (A) pursuant to which a distributor (including any affiliate of Seller) has the right to distribute agreement concerning exclusivity or resell products of the Business and (B) involving aggregate payments in excess of $100,000 in the twelve (12)-month period ended January 31, 2023confidentiality;
(viii) any Contract that is a mortgage, indenture, guaranty, financial, loan employment or credit consulting agreement, security agreement or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted Liens;
(ix) any Contract that is a hedgingagreement involving any current or former officer, futuresmanager, options director or other derivative Contractmember of the Seller or an Affiliate of the Seller or any of the foregoing Persons;
(x) any Contract for agreement under which the acquisition consequences of any Person a default or any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior termination would reasonably be expected to the date hereofhave a Seller Material Adverse Effect;
(xi) any royalty or similar Contract based on agreement which contains any provisions requiring the revenues or profits of Seller to indemnify any Transferred Subsidiaryother Person;
(xii) any Contract agreement that could reasonably be expected to have the effect of indemnification prohibiting or guaranty impairing the conduct of the business of the Seller or the Buyer or any of its subsidiaries as currently conducted and as currently proposed to any Person not made in the ordinary course of businessbe conducted;
(xiii) any Contract with agreement under which the Seller is restricted from selling, licensing or otherwise distributing any Governmental Entityof 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;
(xiv) any Contract relating agreement which would entitle any third party to the acquisition receive a license or disposition of any business or material portion other right to intellectual property of the assets Buyer or any of any Person (whether by merger, sale of stock, sale of assets or otherwise);the Buyer’s Affiliates following the Closing; and
(xv) any Contract under which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof;
(xxii) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with respect to actions in such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involves: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is type not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Lawsdescribed above.
(b) All Contracts set forth The Seller has delivered to the Buyer a complete and accurate copy of each agreement listed or required to be set forth listed in Section 3.11 or Section 3.12 of the Disclosure Schedule (including, for the avoidance of doubt, any Contract that would have been Schedule. With respect to each agreement so listed or required to be identified in Section 3.12 of listed: (i) the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing)agreement is legal, all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding and enforceable and in full force and effect, subject, as to enforcement, ; (ii) the agreement is assignable by the Seller to the Enforceability Exceptions. The true, correct and complete copies Buyer without the consent or approval of all written Business Contracts any party (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that is not in written form.
(c) Except except as set forth in Section 3.12(c) 3.4 of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been () and will continue to be subject 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 ongoing obligations in connection therewiththe Closing; and (iii) in material breach or default under neither the Business Contracts, andSeller nor, to the Knowledge knowledge of the Seller, no any other party to any Business Contract party, is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or violation of, or default thereunder. No under, any such agreement, and no event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, that (with or without notice or lapse of time) will or would reasonably be expected to (i) result in a material violation or breach of any of the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice is pending or, to the Knowledge knowledge of the Seller, other communication regarding any actual or possible violation or breach ofis threatened, which, after the giving of notice, with lapse of time, or material otherwise, would constitute a breach or default underby the Seller or, to the knowledge of the Seller, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights other party under any Business Contractsuch agreement.
Appears in 1 contract
Contracts. (a) Section 3.12(a4.12(a) of the Disclosure Schedule Letter sets forth, forth an accurate and complete list as of the date hereof, each Transferred Contract hereof of the following typesContracts to which the Company or any of its Subsidiaries is a party or by which any of their respective properties or assets are bound, in each case other than Contracts related to Company Plans or Non-U.S. Plans (such Contracts, and any Contract required to be set forth therein but omitted therefrom, are referred to herein as the “Material Contracts”), each Contract:
(i) the performance of which is reasonably expected to involve annual payments or expenditures on the part of the Company or a collective bargaining agreement Subsidiary of the Company in excess of two hundred and fifty thousand dollars $250,000 and is not terminable by the Company or other Contract with any labor organization, trade union, works council Subsidiary of the Company on 90 days’ notice or similar bargaining representative less without premium or penalty (a “Collective Agreement”);
(ii) a Contract with any Top Customer (as defined below), including excluding sales orders and purchase orders covering a payment amount of $2,000,000 or more, other than (A) issued in the ordinary course of business) and primarily relates to the Wound Care Business;
(ii) with respect to a joint venture, (B) non-disclosure agreementspartnership, (C) sales acknowledgmentslimited liability company or the sharing of revenues, (D) purchase orders covering a payment amount profits or expenses or other similar agreement but excluding any of under $2,000,000 or (E) statements the foregoing that primarily relate to the Diagnostics Business and will be assumed by the Diagnostics Business pursuant to Section 6.1 of work that have been satisfied in fullthe Disclosure Letter;
(iii) a Contract with any Top Vendor (as defined below), including a purchase which limits or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in full;
(iv) a Contract under which any Transferred Subsidiary has borrowed any money from, or issued any note, bond, debenture or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior purports to or as limit the ability of the Closing);
(v) a Contract concerning the establishment, control, maintenance Company or operation of a partnership, joint venture or other similar agreement or arrangement, in each case that is material to the Business;
(vi) all material Leases;
(vii) a Contract (A) pursuant to which a distributor (including any affiliate of Seller) has the right to distribute or resell products Subsidiary of the Business and (B) involving aggregate payments Company to compete in excess of $100,000 in the twelve (12)-month period ended January 31, 2023;
(viii) any Contract that is a mortgage, indenture, guaranty, financial, loan or credit agreement, security agreement or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted Liens;
(ix) any Contract that is a hedging, futures, options or other derivative Contract;
(x) any Contract for the acquisition of any Person or any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory in the ordinary course line of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereof;
(xi) any royalty or similar Contract based on the revenues or profits of any Transferred Subsidiary;
(xii) any Contract of indemnification or guaranty to any Person not made in the ordinary course of business;
(xiii) any Contract with any Governmental Entity;
(xiv) any Contract relating to the acquisition or disposition of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);
(xv) any Contract under which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, any products or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict services or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or during any period of time or that binds the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group Company or any of its affiliates Subsidiaries to any exclusive business arrangements or licenses (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
agreements (xxii) any Contract involving capital expenditures by a Transferred Subsidiary in excess of $1,500,000 in the aggregate, whether or not made entered into with Customers in the ordinary course of business consistent with past practices, which has material ongoing obligations following practice or (ii) that relate to the date hereofDiagnostics Business and will be assumed by the Diagnostics Business pursuant to Section 6.1 of the Disclosure Letter);
(xxiiiv) that grants an Encumbrance (other than a Permitted Encumbrance) on any Contract asset of the Company or of any Subsidiary of the Company;
(v) with any Governmental Authority (other than Permits and other than Contracts with a Taxing Authority and other than with respect to sales contracts and reimbursement arrangements entered into in the ordinary course of business);
(vi) that grants a customer or distributor of the Company or any of its Subsidiaries “most favored nation” or similar terms (whether in respect of pricing or otherwise);
(vii) that contains any commitment by the Company or any of its Subsidiaries to meet any specified purchase or sales level or containing a “take or pay” or similar provision and relates primarily to the Wound Care Business;
(viii) that is a stock purchase, asset purchase or other acquisition or divestiture agreement relating to the settlement acquisition, lease, license or disposition by the Company or any of its Subsidiaries of assets (other than in the ordinary course of business), properties, rights or any capital stock or other Equity Interests of any Proceeding Person but excluding any of the foregoing that primarily relate to the Diagnostics Business and will be assumed by the Diagnostics Business pursuant to which any Transferred Subsidiary or Section 6.1 of the Business will have any material outstanding obligations after the ClosingDisclosure Letter;
(xxiiiix) (Aother than purchase orders entered into in the ordinary course of business) with the Customers listed on Section 4.10 of the Disclosure Letter or the suppliers listed on Section 4.11 of the Disclosure Letter;
(x) that relates to Indebtedness;
(xi) that constitutes a Company License Agreement;
(xii) for capital expenditures or the acquisition or construction of fixed assets which requires aggregate future payments in excess of two hundred and fifty thousand dollars ($250,000);
(xiii) providing for indemnification by the Company or any Contract of its Subsidiaries (other than in the ordinary course of business consistent with an Employee past practice);
(xiv) leases of personal property under which the Company or any of its Subsidiaries is the lessee and is obligated to make annual payment(s) in excess of two hundred and fifty thousand dollars $250,000;
(xv) each Lease;
(xvi) which is between or among the Company or any of its Subsidiaries, on the one hand, and any of the Sellers or their Affiliates (including any of their respective partners, directors or employees) (other than the Company or its Subsidiaries), on the other hand;
(xvii) that provides for annual base compensation a third party to manufacture any Wound Care Business Products; or
(xviii) that is an amendment, supplement or modification in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation respect of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses foregoing. The Company has made available to the Buyers a correct and complete copy of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with respect to actions in such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involves: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Lawseach Material Contract.
(b) All Contracts set forth or required to be set forth in Section 3.12 of the Disclosure Schedule (including, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding and in full force and effect, subject, as to enforcement, to the Enforceability Exceptions. The true, correct and complete copies of all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that is not in written form.
(c) Except as set forth in Section 3.12(c4.12(b) of the Disclosure ScheduleLetter, none each Material Contract is a valid and binding obligation of the Transferred Company or its Subsidiaries nor any and, to the Knowledge of their affiliates the Sellers, of the other parties thereto and is orin full force and effect, since July 31in accordance with the terms of such Contract, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default under is enforceable against the Business ContractsCompany and its Subsidiaries, and, to the Knowledge of Sellerthe Sellers, no against the other party to any Business Contract is orparties thereto, since July 31in each case, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunderthe Bankruptcy and Equity Exceptions. No event has occurred, and, to Neither the Knowledge of Seller, no circumstance or condition exists, that (with or without notice or lapse of time) will or would reasonably be expected to (i) result in a material violation or breach of any of the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) Company nor any of its affiliates Subsidiaries are in material default, breach or violation under any Material Contract or has received any written notice or, to such effect. To the Knowledge of Sellerthe Sellers, none of the other communication regarding parties to any actual or possible Material Contract is in material breach, violation or breach ofdefault thereunder. To the Knowledge of the Sellers, no event has occurred which with notice or lapse of time or both would constitute a breach, violation or default by the Company or its Subsidiaries or the other parties thereto, as applicable, or material default underpermit termination, any Business modification or acceleration by the other parties, under such Material Contract. No member Each of the Seller Group Contracts set forth (including or required to be set forth) on Section 4.12(v) of the Transferred Subsidiaries) nor Disclosure Letter have been entered into in accordance with any of its affiliates has waived any of their material rights under any Business Contractrelevant public procurement Laws.
Appears in 1 contract
Sources: Share Purchase Agreement (Centaur Guernsey L.P. Inc.)
Contracts. (a) Except for (i) the Contracts listed in Section 3.12(a3.14(a) of the Relevant Disclosure Schedule sets forth(each a “Material Contract”) and (ii) the Transaction Term Sheet, as the Transaction Documents and any other documents for consummating the Contemplated Transactions, no member of the date hereofWarranting Party Group is a party to, each Transferred Contract bound by or subject to, any of the following typesContracts necessary to or principally used in the conduct or operation of the Business as presently conducted and operated by the Warranting Party:
(i) a collective bargaining agreement any Contract involving consideration or other Contract with annual expenditure in excess of US$100,000 in the aggregate (excluding any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”Warranting Party Plans);
(ii) a Contract with any Top Customer Business IP Agreement (as defined below), including purchase orders covering a payment amount of $2,000,000 or more, other than (A) in the ordinary course licenses of business, (B) nonOff-disclosure agreements, (C) sales acknowledgments, (D) purchase orders covering a payment amount of under $2,000,000 or (E) statements of work that have been satisfied in fullthe-Shelf Software);
(iii) a Contract with any Top Vendor (as defined below), including a purchase or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in full;
(iv) a Contract under which any Transferred Subsidiary has borrowed any money from, or issued any note, bond, debenture or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior relating to or as Indebtedness of any member of the Closing);
(v) a Contract concerning the establishment, control, maintenance or operation of a partnership, joint venture or other similar agreement or arrangement, in each case Warranting Party Group that is material to the Business;
(vi) all material Leases;
(vii) a Contract (A) pursuant to which a distributor (including any affiliate of Seller) has the right to distribute or resell products of the Business and (B) involving aggregate payments involves Liabilities in excess of $100,000 in the twelve aggregate;
(12)-month period ended January 31iv) any Contract with any Government Entity;
(v) any Contract that limits or purports to limit the ability of Warranting Party Group to (A) engage in its Business or carry on or expand the geographical scope of the Business anywhere in the world; (B) manufacture, 2023market, sell, conduct research and development for or provide services for any products, equipment, goods or services of its Business; or (C) source, purchase or procure from any Person any materials, supplies, merchandise and other goods for its Business;
(vi) any Contract in connection with Affiliate Transactions;
(vii) any Contract entered into outside the Ordinary Course of Business that involves an amount in excess of US$100,000;
(viii) any Contract that is joint venture, partnership or similar agreement involving a mortgagesharing of profits, indenturelosses, guaranty, financial, loan costs or credit agreement, security agreement or is a Contract to which liabilities with any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted LiensPerson;
(ix) any Contract that is a hedginggranting any Person any right to purchase any of its Business Assets (other than in the Ordinary Course of Business) or any of the Equity Interest of the Company or any equity, futures, options voting or other derivative Contractinterest of any of the Company’s Subsidiaries;
(x) any Contract providing for the acquisition or disposition after the Reference Date of any Person or any business unit thereof or Business Asset of the disposition of any assets, Warranting Party other than (A) Contracts for acquisitions or dispositions of inventory in the ordinary course Ordinary Course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereofBusiness;
(xi) any royalty Contract providing for a power of attorney currently in effect on any member of the Warranting Party Group (with respect to its Business or similar Contract based on the revenues or profits of any Transferred SubsidiaryBusiness Assets);
(xii) any Contract of indemnification or guaranty relating to any Person not made warranties, guaranties and/or other similar undertakings with respect to its Business Products other than in the ordinary course Ordinary Course of businessBusiness;
(xiii) any Contract with lease or similar agreement under which any Governmental Entitymember of the Warranting Party Group is a lessor or sublessor of, or makes available for use by any third party, any of its Owned Real Property;
(xiv) any Contract relating providing for payments to the acquisition or disposition of any business or material portion of the assets of by any Person (whether by mergerbased on sales, sale of stockpurchases or profits, sale of assets or otherwise)other than direct payments for its Business Products;
(xv) any Contract under which that contains or provides for any express undertaking by any member of the Transferred Subsidiaries have an obligation with respect Warranting Party Group to an “earn out,” contingent purchase pricebe responsible for damages not directly caused by such member’s breach of such Contract, or similar contingent payment obligationother those entered in the Ordinary Course of Business;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Personcollective bargaining agreement;
(xvii) any Contract that contains a license, sublicense or providing for any franchise agreement between any member of the Warranting Party Group and any other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;Person; or
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary in excess of $1,500,000 in the aggregateContract, whether or not made in the ordinary course Ordinary Course of business consistent with past practices, which has material ongoing obligations following the date hereof;
(xxii) any Contract relating to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with respect to actions in such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involves: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Laws.
(b) All Contracts set forth or required to be set forth in Section 3.12 of the Disclosure Schedule (including, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such ContractsBusiness, the “Business Contracts”) are valid, binding and in full force and effect, subject, as to enforcement, to the Enforceability Exceptions. The true, correct and complete copies absence of all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default under the Business Contracts, and, to the Knowledge of Seller, no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, that (with or without notice or lapse of time) will or which would reasonably be expected to (i) result have, individually or in the aggregate, a material violation or breach of any of the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, to the Knowledge of Seller, other communication regarding any actual or possible violation or breach of, or material default under, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights under any Business ContractMaterial Adverse Effect.
Appears in 1 contract
Contracts. (a) Section 3.12(a4(p) of the Disclosure Schedule sets forth, as lists the following contracts and other agreements to which any of the date hereof, each Transferred Contract of the following typesTarget and its Subsidiaries is a party:
(i) a collective bargaining any agreement (or other Contract with group of related agreements) for the lease of personal property to or from any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”)Person providing for lease payments in excess of $10,000 per annum;
(ii) any agreement (or group of related agreements) for the purchase or sale of raw materials, commodities, supplies, products, or other personal property, or for the furnishing or receipt of services, the performance of which will extend over a Contract with period of more than one year, result in a material loss to any Top Customer (as defined below)of the Target and its Subsidiaries, including purchase orders covering a payment amount or involve consideration in excess of $2,000,000 or more, other than (A) in the ordinary course of business, (B) non-disclosure agreements, (C) sales acknowledgments, (D) purchase orders covering a payment amount of under $2,000,000 or (E) statements of work that have been satisfied in full10,000;
(iii) any agreement concerning a Contract with any Top Vendor (as defined below), including a purchase partnership or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in fulljoint venture;
(iv) a Contract any agreement (or group of related agreements) under which any Transferred Subsidiary it has borrowed any money fromcreated, incurred, assumed, or issued guaranteed any noteindebtedness for borrowed money, bondor any capitalized lease obligation, debenture in excess of $10,000 or other evidence under which it has imposed a Security Interest on any of indebtedness of borrowed money toits assets, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to tangible or as of the Closing)intangible;
(v) a Contract any agreement concerning the establishment, control, maintenance confidentiality or operation of a partnership, joint venture or other similar agreement or arrangement, in each case that is material to the Businessnoncompetition;
(vi) all material Leasesany agreement with any of the Sellers and their Affiliates (other than the Target and its Subsidiaries);
(vii) a Contract (A) pursuant to which a distributor (including any affiliate profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or other material plan or arrangement for the benefit of Seller) has the right to distribute its current or resell products of the Business former directors, officers, and (B) involving aggregate payments in excess of $100,000 in the twelve (12)-month period ended January 31, 2023employees;
(viii) any Contract that is a mortgage, indenture, guaranty, financial, loan or credit collective bargaining agreement, security agreement or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted Liens;
(ix) any Contract that is agreement for the employment of any individual on a hedgingfull-time, futurespart-time, options consulting, or other derivative Contractbasis providing annual compensation in excess of $20,000 or providing severance benefits;
(x) any Contract for the acquisition agreement under which it has advanced or loaned any amount to any of any Person or any business unit thereof or the disposition of any assetsits directors, other than (A) Contracts for acquisitions or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereofofficers, and employees;
(xi) any royalty agreement under which the consequences of a default or similar Contract based termination could have a material adverse effect on the revenues business, financial condition, operations, results of operations, or profits future prospects of any Transferred Subsidiary;of the Target and its Subsidiaries; or
(xii) any Contract other agreement (or group of indemnification or guaranty to any Person not made in related agreements) the ordinary course performance of business;
(xiii) any Contract with any Governmental Entity;
(xiv) any Contract relating to the acquisition or disposition of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);
(xv) any Contract under which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary involves consideration in excess of $1,500,000 10,000. A correct and complete copy of each written agreement listed in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof;
Disclosure Schedule (xxiias amended to date) any Contract relating is attached to the settlement of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with Schedule 4(p). With respect to actions in each such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involvesagreement: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individuallyagreement is legal, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Laws.
(b) All Contracts set forth or required to be set forth in Section 3.12 of the Disclosure Schedule (including, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding binding, enforceable, and in full force and effect, subject, as to enforcement, to ; (B) the Enforceability Exceptions. The true, correct and complete copies of all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and agreement will continue to be subject to ongoing obligations legal, valid, binding, enforceable, and in connection therewithfull force and effect on identical terms following the consummation of the transactions contemplated hereby; (C) no party is in material breach or default under the Business Contractsdefault, and, to the Knowledge of Seller, and no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, that (occurred which with or without notice or lapse of timetime would constitute a breach or default, or permit termination, modification, or acceleration, under the agreement; and (D) will or would reasonably be expected to (i) result in a material violation or breach of no party has repudiated any provision of the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, to the Knowledge of Seller, other communication regarding any actual or possible violation or breach of, or material default under, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights under any Business Contractagreement.
Appears in 1 contract
Contracts. (a) Section 3.12(ass.4(p) of the Disclosure Schedule sets forth, as lists the following contracts and other agreements to which any of the date hereof, each Transferred Contract of the following typesCompany and its Subsidiaries is a party:
(i) a collective bargaining any agreement (or other Contract with group of related agreements) for the lease of personal property to or from any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”)Person providing for lease payments in excess of $10,000 per annum;
(ii) any agreement (or group of related agreements) for the purchase or sale of raw materials, commodities, supplies, products, or other personal property, or for the furnishing or receipt of services, the performance of which will extend over a Contract with any Top Customer (as defined below), including purchase orders covering a payment amount period of more than one year or involve consideration in excess of $2,000,000 or more, other than (A) in the ordinary course of business, (B) non-disclosure agreements, (C) sales acknowledgments, (D) purchase orders covering a payment amount of under $2,000,000 or (E) statements of work that have been satisfied in full10,000;
(iii) any agreement concerning a Contract with any Top Vendor (as defined below), including a purchase partnership or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in fulljoint venture;
(iv) a Contract any agreement (or group of related agreements) under which any Transferred Subsidiary it has borrowed any money fromcreated, incurred, assumed, or issued guaranteed any noteindebtedness for borrowed money, bondor any capitalized lease obligation, debenture in excess of $10,000 or other evidence under which it has imposed a Security Interest on any of indebtedness of borrowed money toits assets, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to tangible or as of the Closing)intangible;
(v) a Contract any material agreement concerning the establishment, control, maintenance confidentiality or operation of a partnership, joint venture or other similar agreement or arrangement, in each case that is material to the Businessnoncompetition;
(vi) all any material Leasesagreement with any of the Sellers and their Affiliates (other than the Company and its Subsidiaries);
(vii) a Contract (A) pursuant to which a distributor (including any affiliate profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or other material plan or arrangement for the benefit of Seller) has the right to distribute its current or resell products of the Business former directors, officers, and (B) involving aggregate payments in excess of $100,000 in the twelve (12)-month period ended January 31, 2023employees;
(viii) any Contract that is a mortgage, indenture, guaranty, financial, loan or credit collective bargaining agreement, security agreement or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted Liens;
(ix) any Contract that is agreement for the employment of any individual on a hedgingfull-time, futurespart-time, options consulting, or other derivative Contractbasis providing annual compensation in excess of $10,000 or providing material severance benefits;
(x) any Contract for agreement under which it has advanced or loaned any amount to any of its directors, officers, and employees outside the acquisition Ordinary Course of any Person or any business unit thereof or the disposition of any assets, other than (A) Contracts for acquisitions or dispositions of inventory in the ordinary course of business or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereofBusiness;
(xi) any royalty agreement under which the consequences of a default or similar Contract based termination could have a material adverse effect on the revenues business, financial condition, operations, results of operations, or profits future prospects of any Transferred Subsidiary;the Company and its Subsidiaries, taken as a whole; or
(xii) any Contract other agreement (or group of indemnification or guaranty to any Person not made in related agreements) the ordinary course performance of business;
(xiii) any Contract with any Governmental Entity;
(xiv) any Contract relating to the acquisition or disposition of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);
(xv) any Contract under which the Transferred Subsidiaries have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;
(xvi) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a license, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list or similar marketing purposes;
(xviii) any Contract that contains a license, sublicense or other provision under which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in the ordinary course of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary involves consideration in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which 10,000. The Company has material ongoing obligations following the date hereof;
(xxii) any Contract relating delivered to the settlement Buyer a correct and complete copy of any Proceeding pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligations after the Closing;
(xxiiieach written agreement listed in ss.4(p) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available Disclosure Schedule (as amended to Purchaser and (B) any Contract with any Employee that provides for retention or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any officer, director, manager or employee by a Transferred Subsidiary (with date). With respect to actions in each such capacity);
(xxvi) any Contract entered into since January 31, 2023 (other than Employee Benefit Plans) that contemplates or involvesagreement: (A) the payment or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value in excess of $200,000 individuallyagreement is legal, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; or (B) the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value in excess of $200,000 individually, or $1,000,000 in the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
(xxvii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Laws.
(b) All Contracts set forth or required to be set forth in Section 3.12 of the Disclosure Schedule (including, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding binding, enforceable, and in full force and effect, subject, as to enforcement, effect in all material respects; (B) to the Enforceability Exceptions. The true, correct and complete copies of all written Business Contracts (including all amendments, supplements, modifications, annexes or schedules thereto) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws relating to the safeguarding of Personal Data). Section 3.12(b) Knowledge of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that Principal Holders, no party is not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Schedule, none of the Transferred Subsidiaries nor any of their affiliates is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default under the Business Contractsdefault, and, to the Knowledge of Seller, and no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, that (occurred which with or without notice or lapse of time) will or time would reasonably be expected to (i) result in constitute a material violation breach or breach of default, or permit termination, modification, or acceleration, under the agreement; and (C) no party has repudiated any material provision of the provisions of any Business Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Business Contract; (iii) give any Person the right to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancel, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice or, to the Knowledge of Seller, other communication regarding any actual or possible violation or breach of, or material default under, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights under any Business Contractagreement.
Appears in 1 contract
Sources: Merger Agreement (Source Information Management Co)
Contracts. Schedule 5.15 lists the following pending Contracts to which the Company or any of its Subsidiaries is a party (collectively, the “Material Agreements”):
(a) Section 3.12(a) of the Disclosure Schedule sets forth, as of the date hereof, each Transferred Contract of the following types:
(i) a collective bargaining agreement or other Contract with any labor organization, trade union, works council or similar bargaining representative (a “Collective Agreement”);
(ii) a Contract with any Top Customer (as defined below), including purchase orders covering a payment amount of $2,000,000 or more, other than (A) in the ordinary course of business, (B) non-disclosure agreements, (C) sales acknowledgments, (D) purchase orders covering a payment amount of under $2,000,000 or (E) statements of work that have been satisfied in full;
(iii) a Contract with any Top Vendor (as defined below), including a purchase or service order covering a payment amount of $1,000,000 or more, other than (A) non-disclosure agreements, (B) sales acknowledgments, (C) purchase or service orders covering a payment amount of under $1,000,000 or (D) statements of work that have been satisfied in full;
(iv) a Contract under which any Transferred Subsidiary has borrowed any money from, or issued any note, bond, debenture or other evidence of indebtedness of borrowed money to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior (or group of related Contracts) for the lease of personal property to or as of the Closing);
(v) a Contract concerning the establishment, control, maintenance or operation of a partnership, joint venture or other similar agreement or arrangement, in each case that is material to the Business;
(vi) all material Leases;
(vii) a Contract (A) pursuant to which a distributor (including from any affiliate of Seller) has the right to distribute or resell products of the Business and (B) involving aggregate Person providing for lease payments in excess of $100,000 in the twelve (12)-month period ended January 31, 202310,000 per annum;
(viii) any Contract that is a mortgage, indenture, guaranty, financial, loan or credit agreement, security agreement or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any assets or properties of any Transferred Subsidiary, other than Permitted Liens;
(ix) any Contract that is a hedging, futures, options or other derivative Contract;
(xb) any Contract for the acquisition furnishing or receipt of services (or group of related Contracts), the performance of which involves consideration in excess of $25,000 per annum;
(c) any Person Contract (or group of related Contracts) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any business unit thereof capitalized lease obligation or the disposition of pledged any assets, other than (A) Contracts for acquisitions in excess of $5,000 or dispositions under which it has imposed a Lien on any of inventory in the ordinary course of business its assets, tangible or (B) for acquisitions or dispositions that were consummated more than three (3) years prior to the date hereofintangible;
(xid) any royalty Contract concerning any partnership or similar Contract based on joint venture with the revenues Company or profits any of any Transferred Subsidiaryits Subsidiaries;
(xiie) any non-compete agreement;
(f) any collective bargaining agreement;
(g) any Contract for the employment of indemnification any individual on a full-time, part-time, consulting, or guaranty to any Person not made other basis providing annual compensation in the ordinary course excess of business$50,000 or providing severance benefits;
(xiii) any Contract with any Governmental Entity;
(xiv) any Contract relating to the acquisition or disposition of any business or material portion of the assets of any Person (whether by merger, sale of stock, sale of assets or otherwise);
(xvh) any Contract under which the Transferred Subsidiaries consequences of a default or termination could reasonably be expected to have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligationa Material Adverse Effect;
(xvii) any Contract (A) containing covenants that restrict or limit in any material respect the ability of any Transferred Subsidiary to engage in the Business or compete with respect to the Business with any Person or in any geographic area or the ability of any affiliate of any Transferred Subsidiary (other than the Transferred Subsidiaries themselves) to solicit customers or employees; (B) involving the grant of “most favored nation” status to any Person; or (C) granting any exclusive rights to sell or distribute any product or services of the Business to any Person or imposing obligations to exclusively purchase or acquire any products or services from any Person;
(xvii) any Contract that contains a licensesettlement, sublicense or other provision under which any Transferred Subsidiary is granted or assigned rights by others in Business Intellectual Property, other than (A) Contracts for generally commercially available software (including open source materials), (B) for non-specific Intellectual Property Rights granted under a Transferred Subsidiary’s standard forms for employees and contractors, (C) permitted use rights granted in non-disclosure agreements, and (D) non-exclusive licenses of third party Trademarks solely for the inclusion of such Trademarks in a customer list conciliation or similar marketing purposes;
(xviii) any Contract that contains a licenseContract, sublicense or other provision under the performance of which a Transferred Subsidiary has granted or assigned rights to others in Business Intellectual Property, other than (A) non-exclusive licenses granted to customers in will involve payment after the ordinary course Closing Date of business under a Transferred Subsidiary’s standard forms for such customer relationships previously made available to Purchaser, (B) permitted use rights granted in non-disclosure agreements, (C) non-exclusive rights granted to vendors and service providers for the limited purpose of providing the applicable services to a Transferred Subsidiary, or (D) non-exclusive licenses to Trademarks entered into in the ordinary course of business for inclusion of such Trademark in a customer list or similar immaterial marketing purposes;
(xix) a Contract that is required to be filed by Seller Guarantor as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(xx) any Contract between any member of the Seller Group or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiaries, on the other hand, that is currently in effect;
(xxi) any Contract involving capital expenditures by a Transferred Subsidiary consideration in excess of $1,500,000 in the aggregate, whether or not made in the ordinary course of business consistent with past practices, which has material ongoing obligations following the date hereof25,000;
(xxiij) any Contract relating to under which the settlement Company or one of its Subsidiaries has advanced or loaned any Proceeding pursuant to which any Transferred Subsidiary or other Person amounts in the Business will have any material outstanding obligations after the Closingaggregate exceeding $25,000;
(xxiii) (A) any Contract with an Employee that provides for annual base compensation in excess of $80,000 that materially deviates from the standard form of employment agreement of the Transferred Subsidiaries that has been made available to Purchaser and (Bk) any Contract with any Employee that provides for retention Affiliate or stay bonus, severance or advance notice of termination that extends beyond what is required pursuant to applicable Laws, change in control bonus or accelerated vesting, or other material compensation amount or benefits that, in each case, will be payable or due as a result of the consummation of any of the transactions contemplated by this Agreement;
(xxiv) any Contract that provides that fees or expenses of any outside accountants, external legal counsel or other outside advisors retained by the Seller Guarantor or its affiliates in connection with this Agreement and the transactions contemplated hereby will be owed and paid by a Transferred Subsidiary;
(xxv) any Contract which provides for indemnification of any current officer, director, manager or employee by a Transferred Subsidiary (with respect to actions in such capacity)shareholder of the Company or any of its Affiliates;
(xxvil) any Contract entered into since January 31, 2023 (other than Employee Benefit Plansor group of related contracts) that contemplates provides for any discount for services not in the Ordinary Course of Business;
(m) Contracts with customers, suppliers or involves: (A) the payment employees which provide for discounts, penalties or delivery of cash or other consideration by the Business (including any Transferred Subsidiary) in an amount or having a value incentive payments that are in excess of $200,000 individually, or $1,000,000 50,000 per annum and that are not in the aggregate when taken together with all Ordinary Course of Business;
(n) any other Contracts involving such Person Contract (or such Person’s affiliates; or (B) group of related Contracts), the performance of services or provision of products by the Business (including any Transferred Subsidiary) having a value which involves consideration in excess of $200,000 individually, or $1,000,000 in 50,000. The Company has made available to Purchaser a correct and complete copy of each written Material Agreement (as amended to date) listed on Schedule 5.15 and a written summary setting forth the aggregate when taken together with all other Contracts involving such Person or such Person’s affiliates; and
terms and conditions of each oral Material Agreement referred to on Schedule 5.15. With respect to each Material Agreement: (xxviii) any material management, consulting, contractor, relocation, repatriation or expatriation agreement or other Contract between a Transferred Subsidiary and any Business Service Provider that the Material Agreement is not terminable at will without the payment of severance or other termination payments or benefits beyond that which is required by applicable Laws.
(b) All Contracts set forth or required to be set forth in Section 3.12 of the Disclosure Schedule (including, for the avoidance of doubt, any Contract that would have been required to be identified in Section 3.12 of the Disclosure Schedule had Section 3.12 of the Disclosure Schedule been made at the Closing), all purchase orders issued by or to a Top Customer or Top Vendor in an amount greater than $200,000 and not otherwise required to be set forth in Section 3.12 of the Disclosure Schedule and all material Contracts with Employees that provide for annual base compensation in excess of $80,000 (such Contracts, the “Business Contracts”) are valid, binding and in full force and effect, subjectenforceable against the Company or its Subsidiary, as to enforcementthe case may be, to and shall so remain after Closing without the Enforceability Exceptions. The truenecessity of any consent, correct and complete copies waiver, payment or notice, except as the same may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of all written Business Contracts creditors generally, or by general equitable principles; (including all amendments, supplements, modifications, annexes or schedules theretoii) have been made available to Purchaser (subject to redactions to the extent required to comply with applicable Information Privacy and Security Laws excluding matters relating to the safeguarding of Personal Data). Section 3.12(b) of the Disclosure Schedule provides an accurate and complete description of the material terms of each Business Contract that is Performance Targets not in written form.
(c) Except as set forth in Section 3.12(c) of the Disclosure Scheduleyet met, none of the Transferred Subsidiaries nor Company or any of their affiliates its Subsidiaries is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach of or default under the Business Contractsunder, and, to the Knowledge of Seller, and no other party to any Business Contract is or, since July 31, 2021, has been (and continue to be subject to ongoing obligations in connection therewith) in material breach or default thereunder. No event has occurred, and, to the Knowledge of Seller, no circumstance or condition exists, occurred that (with or without notice or lapse of time) will or time would reasonably be expected to (i) result in constitute a material violation or breach of any of the provisions of any Business Contract; (ii) give any Person the right to declare a material or default under, or exercise any remedy permit termination, modification, or acceleration, under any Business ContractMaterial Agreement except for such breaches, defaults or events which have been cured; and (iii) give any Person excluding matters relating to Performance Targets not yet met, the right Company and its Subsidiaries have in all material respects performed or is performing all obligations required to accelerate the maturity or performance of any Business Contract; or (iv) give any Person the right to cancelbe performed by them, terminate or materially modify or declare void any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has received any written notice orrespectively, to the Knowledge of Seller, other communication regarding any actual or possible violation or breach of, or material default under, any Business Contract. No member of the Seller Group (including the Transferred Subsidiaries) nor any of its affiliates has waived any of their material rights under any Business Contracteach Material Agreement.
Appears in 1 contract
Sources: Stock Purchase Agreement (Xfone Inc)